Friday, December 15, 2006

Big Tobacco and the Free Will Defense

In a recent paper in the journal Tobacco Control, researchers report that tobacco companies use a “free will” defense in law suits, to wit:

“The defendant’s cigarettes may have been a factor [in causing cancer], but the plaintiff knew of the health risks and exercised free will in choosing to smoke and declining to quit.”
The data presented in this paper show that, as evidence mounted that smoking causes cancer, tobacco companies stopped using the “no causality” defense (that there’s no causal connection between smoking and cancer) and shifted to the “free will” defense:

“We found a decrease in the use of the ‘no causality’ argument over time. As can be seen in table 7, this argument was used in 89% of the cases before 1997, 65% of cases during the period 1997–2002, and 25% in 2003. Correspondingly, there was an increase over time in the use of the ‘‘other risk factors’’ argument (from 11% during the first period, to 33% and 50% in the next two periods, respectively) and the ‘‘free will’’ argument (56%, 71%, and 100% in the first, second, and third periods, respectively).”
It’s interesting that as the causal story got filled in about the connection between smoking and cancer, tobacco companies increasingly relied upon juries’ intuitions about free will to defend against liability claims. There are two sets of intuitions that might come to bear, related to two different understandings of what’s meant by free will.

On a compatibilist understanding of free will (compatible with determinism), tobacco companies would say that no one was forcing smokers to smoke; they were smoking voluntarily on their own recognizance. Their will was free in that their behavior was unconstrained by any external compulsion. They knew the health risks of smoking, but their desire to smoke won out, perhaps against their better judgment. So smokers alone are responsible for continuing to smoke.

But this last claim about being solely responsible is a non-sequitur. On a deterministic, causal understanding of the desire to smoke, the addictive qualities of nicotine obviously play a big role, and tobacco companies knew full well they were marketing a very addictive product. So the causal story clearly shows that tobacco companies share responsibility for the inability of smokers to quit, and therefore for the high rates of cancer among smokers. So a compatibilist free will defense doesn’t get tobacco companies off the hook.

On an incompatibilist, contra-causal understanding of free will, tobacco companies might be appealing to people’s intuitions that no matter how addictive or pleasurable cigarettes are, a smoker could quit, if only he chose to. Everyone, ultimately, has a power of choice that transcends causal influences, that decides which influences to give in to, and which to rise above. If jurors have this picture of human agency in mind, then indeed they might conclude that tobacco companies bear no responsibility for the health costs of smoking.

This points to the importance of debunking the idea of contra-causal freedom, since left intact, it effectively insulates the purveyors of addictive products from taking any responsibility for the harmful consequences of addiction. If you’re a tobacco company executive, you’re probably smiling and saying: ain’t supernatural free will a wonderful thing? But as naturalism about human agency takes hold, it will become more difficult to hide behind the free will defense.

7 Comments:

Blogger bellcurve said...

Let's be consistent. If smokers aren't responsible for their actions how can the people who run tobacco companies be responsible for theirs? Either you are responsible or your not. Capitalists have free will and bear a different level of responsibility than the "victims"? Please...

Companies that make alchohol or sweets or any number of other things are likewise selling legal products that are instinctively attractive, and can be said to be addicting, but we don't have a witch hunt against them because we understand that we have to assume that people have a modicum of ability to say no, and if they don't any consequence is the individual's responsibility, not the manufacturer's.

Dec 22, 2006, 5:38:00 PM  
Blogger Tom Clark said...

bellcurve said...

"Let's be consistent. If smokers aren't responsible for their actions how can the people who run tobacco companies be responsible for theirs? Either you are responsible or your not. Capitalists have free will and bear a different level of responsibility than the "victims"? Please..."

On a naturalistic understanding of ourselves, allocating responsibility is a matter of policy, which should be responsive to the causal contribution of the agents involved in order to guide their behavior. In this case, it’s clear that tobacco companies are contributing to the incidence of smoking-related cancer through the deliberate marketing of products they know are addictive, so we should hold tobacco companies responsible and accountable for that contribution, for instance by awarding damages against them. Why? Because this works as an incentive to cease marketing cigarettes or to make them less addictive, which will have the effect of reducing smoking-related cancer. Likewise, individuals must be held responsible for their choices, such that if you know full well you’re risking addiction and cancer in smoking, then you should pay higher health insurance premiums (which increases your incentive to not take up smoking or to quit smoking). Again, the rationale for responsibility ascriptions is to guide behavior in beneficial directions, and the agents we hold responsible are those with the capacity to be responsive to the prospect of being held responsible (that is, most people and all corporations).


"Companies that make alcohol or sweets or any number of other things are likewise selling legal products that are instinctively attractive, and can be said to be addicting, but we don't have a witch hunt against them because we understand that we have to assume that people have a modicum of ability to say no, and if they don't any consequence is the individual's responsibility, not the manufacturer's."

This is, or should be, a matter of deliberate policy which weighs the benefits of the products being marketed, plus the liberty interests of persons and corporations, against the personal and social costs of consuming the product. Tobacco is highly addictive and very harmful, so the cost/benefit analysis is pretty straightforward. For other products it’s less clear, but there’s no reason not to adopt policies that limit the advertising and availability of instinctively attractive products (alcohol, junk food, gambling) if we decide that the costs are outweighing the benefits. There’s no evidence that people have any absolute capacity to resist temptation, so we can’t conclude it’s solely their fault if they don’t exercise it. If they only have a *modicum* of the ability to say no, obviously they could use help in making wise choices, and democratically legislated policies that limit temptations do just that. There’s no non-ideological reason to put all the responsibility on the individual’s unaided will to resist.

Dec 23, 2006, 4:01:00 PM  
Anonymous Jonathan Blake said...

I think we may be confusing two uses of the jargon free will. Is there a legal concept of free will which is different than the philosopher's free will and which is solely confined to freedom from undue coercion and threats to life and limb? If so, the tobacco company's defense might be perfectly kosher speaking legally. Fixing folk philosophy might then only be a prelude to fixing the legal situation.

Apr 2, 2007, 3:11:00 PM  
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May 15, 2007, 2:55:00 PM  
Anonymous Anonymous said...

People are always sueing Companies such as the Tabacco Company for reasons like: "oh, I have lung cancer because of cigerettes" but they never take in to consideration that the company did not force the cigerette into your mouth. People spend atleast 2,000 dollars a year in cigerettes. Philip Morris and other companies pay big money to make products like nicotene gum so you wont have the danger of smoking but you still get the same effect. Instead of spending 2,000 dollars a year on something that will slowly kill you, why dont you spend 50 dollars a month on something that will give you the same effect with out all of the hazourds

May 22, 2007, 10:32:00 PM  
Anonymous Shawna said...

i would just like to say that teens now do not start smoking because of advertising of the tobacco companies. young teens are starting to smoke more because of peer preasure than because of the companies. Also, it is more likely for children to start smoking if their parents smoke. My point is that it is ones choice to smoke or not to smoke whether being pressured or not. but i am not saying that the companies are not responsible for poeple getting addicted to the cigarettes thats a whole nother subject. What i am trying to say is the tobacco companies should not be responsible for people begining to smoke.

Mar 12, 2008, 11:07:00 PM  
Anonymous Anonymous said...

hi, my name is alex, and i think that smokers should get some compensation from the tabacco companies, but only in the case where they were completely uninformed about the negative health affects of ciggarettes. however, it is the government's fault in the first place for allowing the sale of a product that is harmful, without any testing. therefore, the tabacco companies should sue the government for compensation too. when the use of DDT was legal, it was the government that compensated the users, not the pharmacutical companies, who compensated the users since it was not properly tested. lastly, it is very difficult to measure the extend of the damage caused by the use, since in most cases these are class action lawsuits against a single company. i'm quite nconfident that these people were not completely brand loyal their whole smoking career.

peace!! the mysterious one...

Oct 25, 2008, 5:54:00 PM  

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