People who care about justice should be concerned by the recent spate of jury verdicts holding manufacturers responsible for the harmful consequences of their products. In recent months a jury returned a civil verdict against the firearms industry after someone used a gun to commit a crime. Four times in the last year juries have assessed damages against tobacco companies in suits filed by smokers. These verdicts violate every rational conception of justice and should be set aside.
In an analysis of these verdicts, the Washington Post concluded that jurors have decided to send a message to industries in a frustration-born attempt to address social problems. The consequences for a society that thinks of itself as free will be devastating unless appellate judges and legislators restore the law to a foundation of reason and responsibility.
How can a verdict against a gun maker possibly be justified when someone uses a gun criminally? A gun is a neutral tool that can be used for good or ill. More than two million times a year innocent people use guns, usually without firing them, to prevent crimes. Far fewer times people use guns to violate other people’s rights. The guns are the same. What makes the difference is the person holding the gun, his purpose, and his actions. The manufacturer only creates the firearms and puts them into the marketplace. It is not his responsibility to check who buys them at retail. Even the retailer should not be saddled with the burden of evaluating the moral character of his customers. (I imagine that few people run into gun shops shouting, “Quick, sell me a gun. I want to kill an innocent person.”)
If juries begin to routinely hold manufacturers responsible for gun crimes, it will demonstrate how thoroughly the ethics of self-responsibility have been drained from modern American life. We can thank the government’s schools and a host of politicians, psychiatrists, social workers, and two-bit philosophers for that.
The tobacco verdicts are as egregious as the gun verdict, but there is an additional irony. It ought to be obvious that smokers choose to start smoking. The first cigarette a teenager smokes usually makes him sick. If he goes back for a second, it is his choice. Moreover, people can quit smoking. There are about as many ex-smokers as smokers in the United States. Quitting may be hard. But as with any habit, it is doable.
Have the tobacco companies lied about the effects of their products and thereby incurred some responsibility for the harm to smokers? Some jurors think so. But the story is much more complicated, as John Chalfee recounts in his book Fear of Persuasion .
From the 1920s to the 1950s, cigarette advertising strongly implied that smoking was not healthful. How? By telling the public that their cigarettes were easier on the throat than their competitors’ products. Yes, the tobacco companies put the health issue before smokers long before the famous 1965 surgeon general’s reports on the health hazards. In the 1950s the companies brought out filtered cigarettes, indicating that the tars in tobacco were bad for smokers. Thus the typical elderly plaintiff in a tobacco suit today was inundated with television, radio, and print advertising strongly suggesting that smoking was risky.
But this advertising suddenly came to a sudden halt. No, not because of collusion by the tobacco companies. The Federal Trade Commission-that’s a government agency-ordered it stopped: “no advertising should be used which refers to either the presence or absence of any physical effect of smoking.” The FTC made an exception for statements about tar and nicotine that were scientifically supported, which set off another round of ads boasting new low-tar, low-nicotine cigarettes. But the FTC couldn’t resist meddling again. It told the companies their claims about tar and nicotine were in fact health claims that required epidemiological evidence. Such studies would take decades to conduct, so in effect advertising that discussed health issues was effectively banned.
Behold the law of unintended consequences: the government might have thought it was preventing false health claims. In fact, it was banning public discussions of smoking’s hazards by the tobacco companies themselves!
The lesson is clear: the market competition drove the cigarette companies to raise the health issue with consumers. The government stopped them. Who’s to blame if the public was misled?