Feature Article

The newest wave of image enhancement for the tobacco industry is the entrance into the market of "reduced exposure" and "harm reduction" products. These products, which are being introduced into the marketplace at the rate of one every three months, include cigarette-like products that heat instead of burn (like R.J. Reynolds' Eclipse), smokeless tobacco products, and other nicotine delivery products. These products, which appear to be an attempt by the industry to "look out for the well-being of its smokers," still pose risks of their own and may give rise to an entirely new area of litigation against the tobacco industry.

There is little published research to show whether these products are actually what the tobacco industry represents them to be - a "safer" alternative to smoking. While many of these products alleviate the problem of secondhand smoke, little is known about what effect these products actually have on the user and whether or not harm is actually "reduced" as a whole. In the past, cigarette companies have made misleading statements about "light" and "low tar" cigarettes that led many users to mistakenly believe that these products were safer than other cigarettes.

A recent report by the Campaign for Tobacco-Free Kids suggests that Eclipse cigarettes may expose users to higher levels of cancer-causing chemicals than "ultralight" cigarettes already on the market. The full report is available here. Last July, the State of Vermont sued R.J. Reynolds to force it to stop its misleading advertisements for the Eclipse brand. That litigation is still pending.

Most of these "reduced exposure" products do not contain less of the addictive substance nicotine, but rather are alternatives to smoking a cigarette for the nicotine "fix." Though some of these products (such as certain low-nitrosamine smokeless tobacco) are clearly less hazardous to users than cigarettes, they still pose substantial health risks and remain completely unregulated by the Food and Drug Administration or any other governmental entity.

In addition, there are potential legal issues. What impact will "reduced exposure" products have on tobacco company liability in the courtroom? On one hand, it provides the tobacco companies with a way to argue that they are "reformed" companies that have changed and should not be held responsible for past misdeeds (even though there is substantial evidence that this is not true). On the other hand, if it is possible for tobacco companies to produce "reduced exposure" products, does this make the companies more culpable for failing to do so in the past? In addition, companies may be held legally liable if they make false or misleading health claims about "reduced exposure" cigarettes.

The future significance of this issue remains to be seen, but the recent entry of R.J. Reynolds and Philip Morris into the smokeless tobacco market is likely to bring more attention to the debate over "reduced exposure" and "harm reduction" products. As Ken Warner of the University of Michigan writes, "[t]he debate over tobacco harm reduction is almost certain to continue, fostered by the continued emergence of novel products. If one or more such products finds a significant market (none has to date), the intensity and visibility of concern about the issue is likely to increase substantially. So, too, will the stakes."