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By Peter Hayes
Sept. 28 — Baseball fans remember Tony Gwynn as the man who, in 1994, came within a hair’s breadth of hitting .400—a feat that hasn’t occurred in 75 years.
Gwynn retired in 2001 after playing 20 years for the San Diego Padres. He would live another 13 years before dying at the age of 54 of salivary cancer, a disease that his family says was caused by years of smokeless tobacco use in a game that has long been associated with dipping and chewing.
Gwynn’s family has sued Altria Tobacco Co., alleging the company targeted him when he was a college ballplayer with free samples, caused him to become addicted and “exploited his addiction, using him as an involuntary marketing spokesperson” ( Gwynn v. Altria Group Inc. , Cal. Super. Ct., No. 37-2016-00017104-CU-PO-CTL, filed 5/23/16 ).
The complaint alleges Altria and U.S. Smokeless Tobacco Co., an Altria company, failed to warn users of the dangers of their products, and targeted Gwynn in an attempt to use him to market their product to blacks. The family also asserts that the tobacco companies could have, but didn’t, reduce the risk of their products.
According to the complaint, Gwynn became a heavy user of dipping tobacco, and from 1977 through 2008, he used between one and two cans per day.
The aim of the suit, according to the family’s attorney, is to achieve a ban on smokeless tobacco products in Major League Baseball.
“A win would be to see a ban in all stadiums” and an end to the “targeting of young people or sports athletes,” attorney for the Gwynn family David Casey told Bloomberg BNA.
But the lawsuit is only one offensive in a campaign to ban chewing and dipping.
Another, and perhaps the most promising, front lies in upcoming negotiations between the league and the players’ union. And advocates say if all else fails, they’ll fight it out one city at a time—a strategy that is already succeeding.
A spokesman for Altria declined to comment on the suit or advocates’ efforts to get smokeless tobacco banned at ballparks across the U.S.
The most vocal opponent of a ban appears to be the players themselves, a significant number of whom still engage in the habit.
“This case could be the tipping point” in that direction, Casey said.
The Gwynn family has also been working on a ban with the Campaign for Tobacco Free Kids in Washington, an advocacy group that promotes public policies to prevent kids from smoking.
“When Tony started, there were no warnings. Now people are dipping because they watched people like Tony dip,” he said.
But whether or not we’ll see an across-the-board end to smokeless tobacco anytime soon in the majors is more likely up to labor contract negotiators rather than a court.
“It’s unlikely that the litigation would result in a ban,” according to Prof. Matt Mitten, who noted that the MLB isn’t even a defendant in the Gwynn suit.
Mitten is a professor at Marquette Law School in Wisconsin and executive director of the National Sports Law Institute.
Even if the baseball league were being sued, “whether players are permitted to chew is a mandatory subject of collective bargaining, so MLB can’t just say `you can’t do this,’” Mitten told Bloomberg BNA.
“It would have to be an agreement between the league representatives and the players’ union,” he said. “Unless the union is willing to do this, there’s not likely to be a ban.”
That fact is not lost on tobacco safety advocates.
“The collective bargaining agreement has been our focus. It’s the easiest, most comprehensive way to proceed,” John Schacter, a spokesman with Campaign for Tobacco Free Kids, told Bloomberg BNA.
“We’re hoping there’s momentum that will achieve a critical mass,” Schachter said.
The MLB’s current collective bargaining agreement expires Dec. 1, 2016. And ban advocates take heart in past progress on the issue.
“During the last negotiations on a collective bargaining agreement, we called for a prohibition in the MLB and there was a compromise reached: The players won’t use [smokeless tobacco] during interviews or carry tins on field,” he said.
“We’ve since pushed for a broader ban, and the Gwynn case as well as Curt Schilling’s diagnosis have given further impetus.”
Schilling, former pitcher for the Boston Red Sox, has also been diagnosed with oral cancer, which he attributes to his use of smokeless tobacco.
The players, and not the league, are the ones that need to be lobbied on the issue, ban advocates said.
“We are supportive of a ban,” MLB spokesman Michael Teeven told Bloomberg BNA.
“MLB has long supported a ban of smokeless tobacco at the Major League level, and we support the efforts of cities to ban the use of all tobacco products, including smokeless tobacco, in sports stadiums and arenas,” Teevan said.
Teeven, however, declined to talk about specifics of the negotiations or predict an outcome.
A spokesman for the players association says the topic will likely be discussed, but also declined to make predictions.
“The subject of smokeless tobacco use has been raised in prior rounds of bargaining, and you are correct in assuming that it will likely be raised again,” Gregory Bouris, director of communications for the Major League Baseball Players Association, told Bloomberg BNA.
“As it relates to all subjects of collective bargaining, we generally do not speak publicly about them during negotiations,” he said.
However, Bouris said, the players association has been working recently to adjust players to the notion of life without smokeless tobacco.
The players association “has long acknowledged the inherent dangers of tobacco use, including smokeless tobacco,” Bouris said.
“And, over the course of this year, due to the passage of several local ordinances banning the use of smokeless products in stadiums, we have been helping players comply with the bans so they can compete without suffering adverse physical affects.”
Schachter, of Tobacco Free Kids, said estimates he’s seen are that around one-quarter to one-third of current players use smokeless tobacco.
“The owners did and do want the total prohibition and the players didn’t and haven’t agreed,” he said.
If contract negotiations fail, the efforts of Campaign for Tobaccco-Free Kids will continue, one stadium at a time.
“We’re also keeping up efforts city-by-city and we will achieve the ban regardless,” Schachter said.
Schachter said that seven MLB stadiums in five cities have banned chewing and dipping tobacco. A ban that applies not only to players but fans too.
In July 2016, Chicago became the fifth city to implement a ban, joining San Francisco, New York, Boston and Los Angeles.
And more are on the way.
A statewide ban will take effect in California before the 2017 season, and Toronto and Minnesota are also considering measures to implement bans, Schachter said.
“We’re working with the Gwynn family,” Schachter said. “They’ve been on site for appearance and have been very supportive of our efforts.”
Most recently, on Sept. 22, the D.C. City Council voted out of its Judiciary Committee a bill to ban smokeless tobacco at sporting events in Washington (B21-686, the “Sporting Events Tobacco Products Restriction Amendment Act of 2016").
The city-wide measure will be considered by the full council in October, Rayna Smith, the committee’s director, told Bloomberg BNA.
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at firstname.lastname@example.org
A copy of the complaint in Gwynn v. Altria is available at http://src.bna.com/iO2
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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