Here we are years after the states sued the tobacco companies for compensatory damages for damaging their citizens. Who's paying for it? The citizens who smoke! Not the tobacco companies. And who has come out on the short end of the stick? The states, including Ohio, which has already spent the money from the settlement. The whole house of cards is going to come tumbling down.
Consider this the next time you see a teenager take a drag on a cigarette: Your state government likely has a financial stake in that kid continuing to smoke. And quite possibly, so does your retirement portfolio.
Because these states have essentially borrowed against future payments from the tobacco industry, they are now dependent on the continued vitality of cigarette sales. If Big Tobacco stumbles, states will be on the hook for these massive, billion-dollar loans. In other words, David and Goliath are now allies.
Worse yet, anyone invested in tobacco bonds has been seeing their money go up in smoke. Some bond funds that are heavily invested in tobacco have lost nearly 40 percent of their value this year. The reason for the sharp drop is disputed, but some observers say it's partly attributable to anti-smoking efforts. For the first time, fewer than 20 percent of American adults are smoking, new government statistics show. In other words, good news for the state health department is bad news for the revenue department -- and for the portfolios of those who invested in tobacco bonds.
The rush to tap the revenue stream began soon after the tobacco settlement was signed 10 years ago. The cigarette companies agreed to make annual payments that would total $200 billion by 2025. The money was to be divided among the 46 participating states, with New York and California each getting about $700 million a year, Ohio about $300 million, Wisconsin just over $100 million and so on.
It didn't take long for Wall Street to invent a way to take a cut. The creative minds at the now-defunct Bear Stearns investment bank traveled the country making this pitch to statehouses: Why wait for the money? Why not take a lump sum payment up front? Bear Stearns and other Wall Street firms eventually persuaded legislators in most states to “securitize” the payouts by issuing bonds and paying the bondholders back with the annual tobacco payments. The first tobacco bond issue hit in 1999. Soon, states around the country fell in line.
Investment banks, in particular, love tobacco bonds. Because they are more complex than standard debt offerings, they offer steeper commissions. In 2007, when Ohio traded its future payments for an immediate payout of about $5 billion, it paid brokers $30 million. During the dot-com bust, when initial public offerings all but vanished from Wall Street, tobacco bond offerings filled the void for companies like Bear Stearns, nearly doubling from around $7 billion in 2002 to nearly $13 billion in 2003.
The outcome for many states – including California, New York, Ohio and Wisconsin -- is that the tobacco money destined for state coffers in 2010, 2015 and 2025 has already been spent.
The irony is that the states and some smaller governmental bodies need tobacco firms to make their payments every year because, to varying degrees, they are on the hook to pay off bondholders if the cigarette companies default. Some, including New York and California, have directly guaranteed their tobacco bond debt with general revenue in order to secure more favorable rates. Others have an implied obligation not to let their bonds default, lest their credit ratings be tarnished.
“They have created mass structural deficits,” said Hans Baden, a lawyer at the Competitive Enterprise Institute, a think tank that has filed a lawsuit claiming that the Master Settlement Agreement is unconstitutional. “They have sold the money they are getting in the future in exchange for money now, based on a gradually dwindling revenue stream. They have retained the risk while selling the money … and now they have an incentive not to put tobacco out of business.”
An interruption in tobacco industry payments would be catastrophic both to state budgets and individual investors. For example, when the tobacco industry threatened to exercise a loophole in the settlement in 2006 and withhold about $1.5 billion in payments, the value of tobacco bonds sank. It happened again in 2007. The price recovered even though the payments remain in dispute, but notice was served of the perilous relationship between governments and the smoking industry.