"Come Up to the Kool Taste": African American Upward Mobility and the Semiotics of Smoking Menthols
Although most often considered with alcohol in policy debates, tobacco more readily compares with sugar or coffee in its ubiquitous and continual availability (and until recently, acceptability) to all classes. The intimate pleasures of the cigarette—from the flip-top box to the smoker’s perfected flick of an ash to the excuse to ask a stranger for a light—should not be underestimated. The cigarette’s social rituals have made it truly iconic of popular culture throughout the twentieth century. Consider its adaptability: readily slipped into a pocket or behind an ear, it is a means to a private or social moment. Useful as a lift or a sedative, the cigarette stands in as a snack, prop, drug, or coping mechanism. The commodity achieves its most refined, profitable, and complete incarnation in the cigarette, with its inexpensive, efficient, but short-lived gratification. Consumed nearly completely, literally disappearing into a puff of smoke (the butt easily disposed of under a shoe), the cigarette’s solitary fault lies in the fact that, over time, the cumulative effects of its debris slowly and irrevocably sicken and kill its consuming host.
In the legal framing of capitalism in the United States, this one flaw—that cigarettes injure when used as intended—should be enough to not only regulate the cigarette but also ban it outright. In the United States, product liability law is the imperfect but established infrastructure by which Americans can claim their right not to be injured by the objects they purchase. But despite three decades of litigation, it is only since the late 1990s that people have been able to consider themselves injured by cigarettes in the legal sense. This change is due to the work of a recent wave of litigants who have shown successfully that tobacco corporations falsely advertised, defectively designed, and knowingly sold an addictive product. Although dismissed by the United States Court of Appeals for the Third Circuit in 2001, one of the most interesting of the recent spate of lawsuits was brought in Pennsylvania on behalf of black smokers. In this suit, Brown v. Philip Morris, Inc., the Reverend Jesse Brown attempted to highlight the economic racism of cigarette marketing through a civil rights claim. The Brown complaint stated that “[the] Defendants have for many years targeted African Americans and their communities with specific advertising to lure them into using mentholated tobacco products.”1 Brown raised the issues of niche marketing, discrimination, and the “staggering loss of life, premature disability, disease, illness, and economic loss” that have resulted from “the Tobacco Companies’ intentional and racially discriminating fraudulent course of misconduct.”2
The Brown complaint contended that mentholated cigarettes (also known as menthols) contained enhanced dangers over other cigarettes. First, the complaint explained that the ingredient menthol contains compounds such as benzopyrene, which are carcinogenic when smoked. Second, it argued that mentholated cigarettes contain higher nicotine and tar levels than nonmentholated versions. Third, Brown claimed that menthol encourages deeper and longer inhalation of tobacco smoke, increasing the addictive properties of the cigarette and decreasing the lung’s ability to rid itself of carcinogenic components of smoke. According to evi-dence submitted in Brown, mentholated cigarettes account for between 60 and 75 percent of the cigarettes smoked by African Americans—and 90 percent of African American youth who smoke, smoke menthols.3 Thus, Brown claimed, as a result of the increased danger of mentholated cigarettes and “a conspiracy of deception and misrepresentation against the African American public,” African Americans have disproportionately suffered the injury, disability, and death that invariably follow from smoking mentholated cigarettes.
It is clear that cigarettes have had a devastating impact on the African American community: tobacco smoking is the number one killer and disabler of African Americans. It results in more deaths among black Americans than homicide, car accidents, drug abuse, and AIDS combined. It intensifies serious health problems that disproportionately affect black Americans: hypertension, diabetes, low birth weight, infant mortality, and hazardous occupational exposures.4 Blacks have a higher incidence than whites of tobacco-related illnesses, such as cancers of the lung, esophagus, oral cavity, and larynx; heart disease; and cerebrovascular disease. In 1992 lung cancer became the leading cause of cancer mortality among African American women aged fifty-five to seventy-four years.5 Compared with whites, blacks also tend to be diagnosed when diseases are at a later stage, and they have a significantly lower survival rate after diagnosis.6
Reverend Brown brought this injury claim as a civil rights suit, providing a radical departure from product liability approaches to legal retribution for dangerously defective products. By claiming transgression of the Civil Rights Act of 1866, originally written to protect recently freed slaves from a variety of discriminatory practices, the complainants of the Brown suit sought to show the unconstitutionality of targeting African Americans with defective products. This strategy sidestepped the problematic way in which product liability law seeks to reestablish the status quo through compensation and its corollary effect, which is its tendency to undercompensate women and minorities—meaning they are both less likely to be compensated (as a group) and more likely to receive less compensation. Furthermore, it sought structural redress by attempting to have advertising directed toward African Americans banned, a remedy that would not be available through product liability law. But although the complainants submitted substantial evidence on target marketing and design defects—including evidence of industry research on the health effects of menthols dating possibly to the 1930s7—the structure of civil rights law placed these key issues beyond the court’s field of judgment. For example, the complainants needed to show intentional discrimination on the part of the defendants that would impair the plaintiff’s ability to “make contractual arrangements for the sale and purchase of tobacco products.” In dismissing Brown, the court set aside the issue of targeting because the plaintiffs were unable to show that they were offered less-favorable contractual terms than whites were. Essentially, the court determined that the plaintiffs had in fact been free to buy any type of cigarettes, and the mentholated products that many did smoke were “just as defective and dangerous as the mentholated products” that were sold to whites with equal terms of sale.8 Thus a federal district court dismissed Brown in 1999 on narrow but important legal grounds, and the plaintiffs’ charge of targeting a dangerous product at racially defined markets was not considered.
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Notes
Hearty thanks are due to my friends, colleagues, and relatives who have contributed to this essay through discussion, reading drafts, and inviting me to present this work-in-progress: Genevieve Bell, Susan Boyd, Ruth Buchanan, Anita Jain, Evelyn Jain, Matthew Kohrman, Jake Kosek, Samara Marion, Catherine Newman, Richard Pollay, Matt Price, Robert Rabin, Stephen Sheller, Derek Simons, Ann Stoler, Lucy Suchman, Victoria Vesna, Robert Weems, Sylvia Yanagasako, and Claire Young. My thanks also to Elizabeth Povinelli for her careful reading of my essay in the context of its submission to Public Culture. My appreciation extends to the participants of the Humanities Research Institute seminar at University of California, Santa Cruz, especially Deborah Bright, Angela Y. Davis, Gina Dent, Laura Kuo, and Neferti Tadiar. I also acknowledge the able research assistance of Colleen Pearl. This essay was written with support from the Social Science and Humanities Research Council of Canada and from the Killam Foundation and is dedicated in gratitude to my dissertation adviser and mentor Donna J. Haraway.