And yet, when the Federal Trade Commission proposed simply to put strong health
warnings on it, Congress swooped in and literally cut them off at the knees.
The Federal Trade Commission as an agency didn't recover for decades to the
swipe they took. It was so bad, frankly, that the person who was the Chairman
of the Federal Trade Commission in 1964, when confronted with a report in 1980
by the staff of the FTC, recommending stronger health warnings said, "I will
never vote against the tobacco industry again in my entire life. You have no
idea what it is like to go up to the Congress of the United States and face
those people under those circumstances."
Fifteen years later that man was still terrified of stepping out and doing what
was right against this industry.
Q. Who did they have working for them? I mean, lawyers, politicians,
who was on their side?
Myers: You know, one of the best examples of the fact that the tobacco
industry knew long before the Surgeon General, just how deadly its product is,
is by looking at how they had clearly, carefully planned. When the Surgeon
General's report came out in 1964, tobacco industry members of Congress were
already situated in key positions in each and every committee of the Congress
of the United States.
So when the federal government proposed action, it was a tobacco state senator
or representative who was presiding over the committee that said, "No how, no
way, not now, not ever." They knew it was coming and they were the first of
the industries, long before we had this with any other industry, to recognize
that the key to continuing your action was to get your members of Congress in
the right place. To make the right political contributions at the right time.
And to organize your constituency back home in a way that would have been
sophisticated for 1980, let alone 1964.
It is one of the real worst examples of pure corporate power used to undermine
sound public policy.
Q. Just so I understand, we now know that these various different
companies met together and conspired together?
Myers: The documents that have come out in the last four years are
incontrovertible. These companies sat down in a room together and devised an
orchestrated scheme to deceive the American public about what they knew about
their product. And undermine the will of Congress in terms of taking on the
industry in a way that they would have if it was any other industry.
Q. You are an attorney. It sounds illegal.
Myers: I think it was illegal. It was certainly immoral.
Q. What was your reaction when you heard that the State of Mississippi
had filed a Medicaid suit.
Myers: I have to admit my initial reaction was skepticism until I began
looking at the legal theories that were behind the lawsuit. And it was only
after spending time carefully analyzing the case that I began to realize that
this might be something truly different.
Q. And when you first met Mike Moore and Dick Scruggs, what did you make
Myers: You know when I first met Mike Moore and Dick Scruggs, I was
struck by a couple of things. That Mike was a charismatic figure who had an
ability to carry off things that others probably underestimated. And the last
thing that Dick Scruggs was, was some hick lawyer. This was a bright guy with
broad visions. And that this was the sort of guy the tobacco industry ought to
be afraid of.
Myers: Because Dick Scruggs had the experience and the breadth of vision
to mount a challenge against the tobacco industry, unlike any other that they
had seen before.
From his experience in asbestos, where he was one of the lead lawyers in
bringing down the asbestos industry, it was clear he really had a sense for the
jugular. And in this case it was clear that he had a better understanding than
those who had been close to the tobacco litigation for years, of the weaknesses
in the traditional cases, and the type of claims that could well strike a very
different and more responsive cord in juries.
Q. Your organization is, describe it, what does it do?
Myers: The National Center for Tobacco Free Kids is slightly less than
two years old. We were created out of a number of foundation grants and grants
from voluntary public health organizations to be the nations largest non-profit
organization fighting the tobacco industry.
Our primary focus on public policy changes that will reduce tobacco use among
children, but not to the exclusion of trying to reduce overall tobacco use.
Q. So when you got a call, I assume, from Dick Scruggs or Mike Moore in
March of '97 that the tobacco industry, some guy named Phil Carlton, wanted to
talk. That the White House wanted to meet with them, what was your
Mike said to me that he had gotten a call from a fellow by the name of Phil
Carlton who I had never heard of. That Carlton wanted to meet and wanted to
enter into a series of discussions on behalf of the tobacco industry.
And Mike said to me that he wasn't going to do so. And just wanted to make
sure that we were on the same wavelength. That he knew that I had been
contacted. He had been told that I had been contacted.
And he, for the first time, told me that somebody from the Costano Group, the
class action lawyers in Louisiana had also been called. And that he had been
talking to them. And at least on behalf of the Attorney Generals, Mike's
inclination was not to have a meeting. He didn't think it would be productive.
That he thought it was a side show at that point in time.
And so, if I was comfortable with that posture, they were just going to go
ahead and continue to prepare for trial.
Q. So Mike Moore contacted you after this initial meeting with
Mitchell's partners and said he had been contacted, but he didn't believe it.
He thought it was hot air. So what changed his mind? As I understand it, they
all met in your office.
Myers: Well Mike would have to be the one who tells you that because I
didn't get the call. What I understand happened is that Bruce Lindsay from the
White House and Mike Easely, the Attorney General from North Carolina called
Mike and said, each in their own way, we would really like you to at least have
an initial meeting. You don't have to have a second meeting, but at least have
And so Mike called me and said he had received these calls. That he thought
out of respect to the individuals who had called that we had to have the
meeting. Was I willing to do so?
He suggested he thought it would be better if we met together and could we do
it in my offices? So I said yes. And it was literally the next afternoon the
meeting took place in my office, with Mike Moore, myself, a representative from
the Costano Group in Louisiana, Dick Scruggs and Phil Carlton.
Q. What was going on in your mind when you are sitting down to a meeting
with somebody from the tobacco industry who says we are going to change.
Myers: My view at that point was that it was still nothing more than a
smokescreen. That this was exactly what they had always done before. Anybody
who had followed the history of this would see that every four years or
whenever they were in deep trouble, a key tobacco representative would stand up
and say, we recognize that we need to make change and we are prepared to do it.
We want to live like honorable citizens in the United States.
And I thought this deserved the same credibility that every one of those other
statements deserved. That was my personal view at the time.
At the same time, my view was that you didn't have a choice about whether you
listened or not. That it was simply wrong not to listen and then make an
Q. So in March when you are having your first meeting with Phil Carlton,
you already know that some of your colleagues aren't going to be happy, that
you even had that meeting.
Myers: Now, we had done other things since the November meeting had
broken down. After the November meeting broke down, we engaged in a series of
discussions with the CEOs of a number of voluntary health organizations and
other major health organizations. Saying to them, we still need try to come up
with a set of principles. We have go to be ready because we won't be able to
withstand an effort to come up with a compromise. If we don't set forth a
solid agenda that makes sense, the White House and the Congress simply isn't
going to listen to, no, not without regard to what is on the table. We simply
won't deal with those people.
We have got to be able to make a case and to do that we have got to have an
agenda that makes sense. Because otherwise we won't be listened to and that is
what has happened to the public health community every time in the past. And
if we are going to influence the outcome, we have to be substantive, we have to
Q. You can't just be nay sayers.
Myers: You just can't be nay sayers. That works for people for whom
tobacco is their whole life. It doesn't work for members of Congress. It
doesn't work for the press. It doesn't work for the public and it won't work
for the White House.
And so if we are going to want to be able to say no, we had better know what it
is that what we want and what we don't want. And if we are going to push the
White House to do the right thing, we had better know substantively what that
is as well. It is the only way to be a key player in which will clearly be
something that is going to happen, whether we like it or not.
Q. In your mind, when you are going into that first meeting, what is
Myers: Well, my mind was actually pretty clear. I thought I was going
to one meeting. That the meeting would relatively rapidly break down and the
it would be business as usual. I had a very hard time envisioning any
situation where the industry would really make an offer in enough detail to
make it worthwhile to continue to participate in discussions with them.
That was 100% my mind set. I couldn't envision this being anything more than
Q. You go in. You sit down. George Mitchell comes in, as I understand
Myers: I was late. I mean the great irony, the only person who doesn't
have a case. I was late to the meeting because I was coming from the Hill.
And I had trouble finding a parking place.
They were already seated. George Mitchell. Phil Carleton had apparently
introduced everybody. When I walked into the room they were already seated
there. People stopped when I came in. The thing that struck me about it
actually, more than anything else, was Goldstone and Bible coming up to me and
very personally commenting about how pleased they were to meet me. And how
they thought that I would be surprised, what they were going to have to say.
So I sat down in the room. The room has probably been described to you
already. Mitchell finished his talk which, frankly, said nothing. And...
Q. George Mitchell was the greeter.
Myers: Yes. That is exactly what he was. The greeter. He had no
substantive role whatsoever. His job was to use his name and reputation to
bring people into the room and then do nothing else. And I was struck by that.
I was struck by it with a phone call to me. I was struck by the role he played
that day. And then he turned it over to Bible and Goldstone.
Q. When in the meeting did you have a flicker that maybe these guys were
Myers: Bible and Goldstone spoke. They are both very persuasive
individuals, but they only spoke in platitudes. So, you know, my thought...
My reaction was if you were hearing them for the first time, if you didn't know
anything about the tobacco industry, this would have been pretty persuasive
stuff. Although there was no meat to it.
My reaction to it was, these guys are good. But whether there is anything here
yet, is still to be seen. After they spoke, the meeting broke. They left with
George Mitchell. And then their lawyers came back and going through the agenda
that the state Attorney Generals had laid out, item by item, made general
representations about things that they were willing to do.
The general representations were concrete enough to be different. But general
enough to not be certain how different. Concrete enough that it demanded a
reply to try and draw them out and see how much more was there.
What was clear from the very get-go was their demands of what they wanted were
completely outrageous and totally unacceptable.
Q. They wanted immunity.
Myers: They wanted immunity from everything. I mean they wanted...
They, you know, their request was for peace now and forever. They never wanted
to walk into another courtroom again. They didn't want to face criminal
immunity, they didn't want any civil...
Q. Civil prosecution.
Myers: Criminal prosecution. Yes, that is right. They didn't want to
face criminal prosecution. They didn't want to face any more lawsuits. They
weren't willing to say, but they said they were willing to pay a lot of money
to do that. And willing to change every aspect about how they do business.
You couldn't listen to that and say, immediately, that is so far off the
charts. That is so beyond the realm that it is impossible.
Q. These are the people that you been trying to beat, put out of
business, if you will, for decades.
Myers: These are people I have called the greatest mass murderers in the
history of mankind. People who have no moral gyroscope. I believed that when
I walked into the room, I believed that after I listened to them. And I
ultimately said to myself, and this is something I had thought about beforehand
so whether it was right, wrong or what have you. Maybe it is the training as a
But the ultimate goal here can't be dominated by the extent to which I despise
those people and what they have done. The ultimate goal really has got to be
focused on what can we do to change how tobacco is marketed and sold in this
country. The number of people who have died in this country from tobacco. And
do it in a way that meets basic principles with moral and social justice.
Q. Who is Steve Parrish?
Myers: Steve Parrish has been the mouthpiece of Philip Morris for a
decade. Yes. But it may be hard for you to see, but I went into the meeting
with the conscious thought that I had to separate personal feelings about the
individuals from the public policy goals that we needed to achieve. That is
not an easy thing to do.
Q. Isn't it in the back of your mind that your colleagues, your allies
are saying he is doing that in secret if they found out you were meeting with
the enemy in secret and they didn't know. Weren't you taking your life work in
Myers: In some respects, yes. I did some things to try to decrease that
risk. That very night I had the President of the organizations I work with set
up a conference call with the CEOs of a number of the major health
organizations. The Cancer Society, The Heart Association, AMA Academy of
Pediatrics. I believed at that time, The Lung Association as well then. I
will have to go back to double check exactly. I didn't set up the conference
call. So that within a day we would be in a position to at least let the
leadership of those organizations know that there were conversations going
But the other question, the one that you raised, is one that I really only
began to focus on over the week-end. This conversation, first conversation
took place on a Thursday afternoon, if my recollection is correct. There was
another meeting on Friday afternoon. And enough energy just went into
preparation for focus on those meetings.
It was really only over the weekend where you had a chance to step back a bit
and say, okay, now... And try to figure out where you are in all that. And,
that juncture, I recognized full well that if this went wrong, that this would
make it very difficult for the work I had, you know, committed to doing with a
large number of people.
Q. Well some people say that you got carried away. That you had not
right to negotiate on their behalf.
Myers: And I didn't negotiate on their behalf. There are two ways to
look at it. There is three ways to look at it. And in the different
perspective, each had merit.
I told Goldstone, Bible and everybody else I wasn't there on anybody's behalf.
That if they wanted me to be there on somebody's behalf then they had to give
me permission to go and consult with all of them to do that.
Q. Why did they have to give you permission? Why didn't you just say,
hey, I can't negotiate with you guys, I am just one person. I have to go talk
to my people.
Myers: Well, but I did that. Because in the very first conference call
with the very CEOs, I raised the issue of whether there ought to be other
people there. And whether they had suggestions of who it ought to be and
whether they wanted other people there.
And the conclusion they reached at the time was that they hoped I would be
willing to keep going for a while, while they figured out the answer to that
By the time that the discussions became public, which was really less than two
weeks later, we had already begun talking seriously about trying to insert
other public health representatives into the process. And immediately after
they became public...
Q. But you were there on June 20th, you endorsed the settlement.
Myers: I did not endorse the agreement. I did not sign the
Q. You said it was a great step forward.
Myers: And it was. It was. I said the agreement was flawed but it
provides the best opportunity for change that we have ever had.
Q. Here is what your critics say. This is the draft proposal. They
tell me, look to page 37. Title 7, paragraph C. $500 million dollars shall be
spent annually in such multi-media campaigns. That is, public education
Q. ...Designed to discourage and deglamorize the use of tobacco
products. To carry out such efforts, an independent non-profit organization,
made up of prestigious individuals and leaders of the major public health
organizations shall be created, etc. And they shall contract or make grants to
non-profit, private enterprises who are unaffiliated with tobacco manufacturers
or tobacco importers. Who have demonstrated a record of working effectively to
produce tobacco product use and expertise in multi-media communications
What the critics say is, this is your organization. That this was a payoff to
your organization, directly.
Myers: I wrote those words. I wrote those words. I'll take direct
responsibility for them. I wrote those words based on the best of what we know
you have to do to produce an effective counter- advertising campaign. I wrote
those words based upon the comments of many of those same people about what was
wrong with the advertising campaigns in states like California and
Massachusetts in an effort to insulate it from public political pressure.
I also said that the National Center wouldn't accept one penny of that money so
that there would never be a question that that was designed to enhance our
Q. How do you explain that your colleagues, who you worked with so many
years were so bitter about your participation in this deal? And, in fact, in
the deal even being announced.
Myers: This agreement and all that it has led to has provoked the most
fundamental passions, many of which for good reason. It moves us forward so
far in answering fundamental questions. Questions that were just literally
hypotheticals only a year ago.
What really are the ultimate policies we want to enact in this country? What
are our real goals with regard to the tobacco industry? What are the moral
questions about political trade offs of this magnitude? They should have and
they did provoke the deepest most passionate feelings. Feelings that have been
an undercurrent but you didn't have to get to. As long as you were only
tinkering at the edges of this problem. And that is what we were doing before
This agreement has provoked the deepest, most important public policy debate
about tobacco that this nation has ever had. And anybody, in any single
position with regard to it is going to be subject to some level of criticism.
I knew that when we at the National Center decided to participate that I was
taking a serious risk.
You know, I got into this business for one reason and that was that this
country's history of reining in the tobacco industry is beyond deplorable. I
think it is one of the great tragedies of this century. And if there was an
opportunity to do something to make a fundamental change, I was willing to take
a risk to do that.
Q. Well, but your colleagues would say, they were on the ropes. They
were going to get wiped out by these Medicaid suits. They may still get wiped
out in Minnesota as we speak. And you were providing them a way out. A way to
Myers: I guess there are a couple of answers to that question. They
were on the ropes, but we have to ask to what end and at what risk? The
outcomes of those lawsuits was, and remain, uncertain. Having worked with
those Attorney Generals, I know that the vast majority of them were prepared to
settle their cases before and will be prepared to settle them in the future.
Having studied those cases and looked at the law, you can't get away from the
fact that those cases bear substantial risk and that those courts are not
likely to order fundamental wholesale change. Bankruptcy ultimately isn't
going to be an answer.
Q. You don't believe that you, in a sense, have been outsmarted by the
industry. I mean I have a document from 1980 from British American Tobacco
that basically outlines a deal. Let's change our policy. Let's stop youth
smoking. Let's not try to get more young people to smoke. We have got the
wrong strategy in the United States. And it concludes that the problem to date
has been a severe constraint of the American legal position.
This problem has made us seem to lack credibility in the eyes of the ordinary
man on the street. Somehow we must regain this credibility. By giving a
little, we may gain a lot. By giving nothing, we stand to lose everything.
Myers: If we accept them giving a little, then we will have lost. That
is why it is so fundamental important that we focus on what it is we, as a
nation, want. Not what the tobacco industry wants to give. If we demand from
Congress that they enact the right policies, policies that go far beyond
anything the tobacco industry was prepared to give, even in those negotiations,
then we have an opportunity to bring about the sort of fundamental change that
we are not otherwise going to see.
Q. So are you saying that what you did on July... Are you saying that
what you did on June 20th was, in a sense, make them think you endorsed the
deal but actually outsmarted them because they can never go back?
Myers: What I think we did throughout the process is change the debate
about what is possible and that the June 20th agreement was the starting point
for the public and Congressional debate. Now only history will tell us whether
they outsmarted us or we outsmarted them.
But what I do know is that without that agreement, we wouldn't be having the
debate today in Congress or in the public about what to do with the tobacco
industry along these lines. We wouldn't have legislation being seriously
considered of the threat, toughness and expanse that we have today.
There has been a sea change in Congress on which side to be on of this debate,
since June 20th, that is unprecedented in the 20 years before it.
Q. What do you mean?
Myers: There are members of Congress now that are supporting tough
action against the tobacco industry who never voted with us. Never voted with
us before. We have members of Congress who have endorsed the most stringent
regulation by the food and drug administration. Who, only a year and a half
ago, signed a letter to the FDA urging them not to assert jurisdiction over
We have members of Congress sponsoring legislation with the toughest possible
controls on the tobacco industry who, only last summer, voted not to give the
Food and Drug Administration enough money to enforce simple youth access
restrictions. This debate has forever changed how members of Congress are
agreeing to deal with the tobacco industry in an extraordinarily positive
Q. Then why are some of your colleagues so worried that the tobacco
industry will slip out of their clutches, if you will, in Congress?
Myers: I share those concerns. I mean there is no other way to put it.
I share those concerns and that is why the public debate, I think, has been so
Congress' history of tobacco is a history of failure and backroom deals that
were bad for the American public. You can, however, say that we have the
tobacco industry on the brink of oblivion, with wholesale public attitudes
change and not also recognize that that could well give us an opportunity to do
something in Congress that we couldn't do before. If we do it right. You can
be frozen into inaction by past mistakes or you can learn from them and try to
Q. Is it really a done deal already because there is so much money
Myers: Fortunately, the answer is no. It is not a done deal precisely
because of the passions that it has provoked. For once this is not going to be
a deal that is done behind closed doors without people paying attention.
Q. Well let me ask you about what you are willing to give them. Are you
willing to give them immunity from punitive damages?
Myers: First and foremost, my role in this process has changed. I am no
longer sitting in a room negotiating with the tobacco industry. The debate has
moved beyond June 20th to the halls of Congress. What Congress has got to
decide is not what the tobacco industry wants, but what is good public policy.
As an advocate for the public health, my job is to make sure that Congress does
the best possible job.
Q. Okay. What is the best possible job? What are you going to trade
for all this public health money, for all these reparations, for all these
payments, for all these education campaigns. Will you give them, would you
advocate giving them immunity from punitive damages.
Myers: I would never advocate giving them immunity for anything. I
didn't advocate it in the June 20th agreement. I didn't accept it in the June
20th agreement. I wouldn't advocate it now.
Whether there will have to be a trade off at the end is something that is
impossible for me to predict. If we in the public health community do our job,
there shouldn't have to be a wholesale trade at the end.
Q. If the tobacco industry is willing to put up $60 billion for past
punitive damages, would you give them a buy on past punitive damages. If they
are just going to pay $60 billion up front?
Myers: It is a question I can't answer for you. My initial inclination
is that the issue of past punitive damages is one of the most difficult ones.
I objected to the negotiations about past punitive damages throughout the
negotiations. The agreement on past punitive damages, as everyone knows, was
made on a day that I wasn't at the negotiations.
Q. You do agree, however, that $500 million should be paid to an
organization or organizations that are involved in public education against
Myers: I agree and everyone in the public health community agrees that a
well funded independent public education campaign is a crucial part of any
comprehensive plan whatsoever. I also have agreed that our organization has
said from the get-go that we wouldn't accept that money, so that there would
never be any question about our motives.
Q. Do you agree with the view that giving them immunity from class
action suits is actually giving them nothing because existing precedents are
you can't sue in a national class action anyway.
Myers: I put it differently. I happen to believe that the law of class
actions means that they are not likely to be a powerful tool for the public
health. But I think that is a reason why they shouldn't be given immunity from
the criminal probe .
will there be a deal? .
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