Matt Myers is Executive Vice President and General Counsel of the National Center for Tobacco Free Kids, a Washington based anti-tobacco lobbying group. As a private lawyer in the eighties, he lobbied Congress and won a doubling of the per pack cigarette tax. In 1996 the National Center on Tobacco Free Kids was created with private donations from groups such as the American Cancer Society and the Robert Wood Johnson Foundation. It launched an intensive anti-smoking campaign to reduce smoking among children. While Myers was working at the FTC on warning labels, he enlisted the support of then Congressman, Al Gore and it was this connection that made Myers a central player in the settlement debate. As negotiations began, the White House insisted Myers be part of any talks to ensure that the public health perspective was included (the very first meeting between the Attorneys General and a Tobacco Industry Emissary, Phil Carlton, took place at Myers’ offices in March of 1997.) As a longtime critic of the tobacco industry, Myers confounded his fellow health advocates when he joined the negotiations.
“One of the best examples of the fact that the tobacco industry knew long before the Surgeon General, just how deadly it’s 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 position in each and every committee of the Congress of the United States.”
Q. Matt, you are a veteran of the tobacco wars. Give me an idea back three or four years ago, before all this started in a way, of the power of the industry. Its political and legal power.
Myers: It is remarkable, when you consider that it has been over 30 years since the Surgeon General found that without any doubt, tobacco was the number one preventable cause of premature death and disease in this country. If it had been any other product that caused 1/1000th of that sort of problem, we as a nation would have acted and acted decisively. This industry wouldn’t continue to exist if it was any other product.
Q. How did they do it? Who worked for them? I mean, to people who don’t know how powerful they were, what did they look like to you?
Myers: The tobacco industry has used its political power and financial muscle to tie Washington up in a way that no other industry ever has done before. If you look back to 1964, Surgeon General, President of the United States declare this to be the number one cause of premature death and disease. Causing one of the worst deaths we know. Lung cancer.
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 of them?
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 reaction?
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 one.
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 independent evaluation.
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 be focused.
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 going on?
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 one afternoon.
Q. You go in. You sit down. George Mitchell comes in, as I understand it.
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 serious?
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 trial lawyer.
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 your hands?
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 on.
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 question.
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 agreement.
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 campaigns…
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 campaign.
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 organization.
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 now.
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 survive.
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 tobacco.
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 way.
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 constructive.
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 make change.
Q. Is it really a done deal already because there is so much money involved?
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 smoking?
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 them.