Remember when Big Tobacco got religion and decided that it just wasn’t right to use a cartoon character to entice young people to start smoking?
I thought about the demise of Joe Camel when I read about Big Pharma’s recent conversion. Thousands of salespeople will no longer be inundating doctor offices with cuddly stuffed animals and other trinkets to encourage Oxycontin sales. Why the change of heart after so much “success” in marketing opioids?
Lawsuits. That’s what got Big Tobacco to stop advertising to kids and that’s what is getting Big Pharma to now change its tune. Years of public shaming, legislative debates, and appeals to morality were failures. The only reason why Big Tobacco and Big Pharma changed their behavior was the threat of massive financial loss due to lawsuits.
Corporations exist for the benefit of shareholders. Moral arguments don’t work because morality is not what shareholders buy when they purchase shares. Advertising and image burnishing notwithstanding, all that matters to corporations is the interests of shareholders, and what shareholders are interested in is their investment. That’s not a condemnation; it’s simply reality.
Which brings me to Big Guns, as in Colt, the manufacturer of the AR-15 assault rifle. The AR-15 is the weapon of choice for shooting rampagers, including those who murder kids in schools. That product - just like cigarettes and opioids - does not kill on its own. But mass murderers using it do, and the time is right for assault rifle manufacturers to bear some responsibility for how their product is used.
Could an avalanche of lawsuits against assault rifle manufacturers in state and federal courts force Big Guns to take greater responsibility for its product? Yes. Follow the same playbook that was used to get Big Tobacco and Big Pharma to change.
There is, however, a substantial hurdle when it comes to Big Guns. In 2005, Congress passed a National Rifle Association sponsored law that shields gun manufacturers from lawsuits. Big Guns, therefore, doesn’t need to worry about consequences for providing easy access to assault rifles and making it easy to modify them so that they spray more bullets. There is, however, an important exception to the blanket immunity - negligence. And the time is now right to leverage that exception into change.
There are four elements to negligence: duty, breach of that duty, damages, and causation (meaning that the injury was a reasonably foreseeable consequence of the defendant’s actions). Sadly, given the high number of school shootings, the final two elements can now be readily proven. What would be more difficult to establish is duty. Do assault rifle manufacturers have the duty to take reasonable steps that would better ensure that students in our nation’s schools will not be slaughtered by their product?
I sure hope so. And our young people certainly deserve this consideration. Teenagers today are sometimes mocked as the “trophy generation.” They are not. Young people today never knew the pre-9/11 world that didn’t include pat downs at airports. They’ve also never had a school year that didn’t include training for shooter lockdowns. They are the Columbine Generation. They walk into school each day wondering if this will be the day that the lockdown drill won’t be a drill. No young person should have to live with this fear. And no parent should have to receive a final “I love you” text from their child’s barricaded classroom.
Big Guns has a duty to take steps to make this stop. What also needs to stop is the frustrating post-school shooting pattern: 1. Outrage and calls for change. 2. The aforementioned public shaming, legislative debates, and appeals to morality. 3. No change. 4. Next shooting, repeat pattern.
There has been no change because Big Guns has no incentive to change. And there will be no incentive to change without the threat of truly staggering financial losses, the kind that frightens shareholders into demands for action. It’s in that place of fear that real change becomes possible because that’s where corporate responsibility and shareholder interests converge.
So, bring on the lawsuits, many of them and for massive damages. Ordinary Americans want the carnage to end, and it’s ordinary Americans that will be sitting on juries. They will readily see that Big Guns has breached its duty to our young people. One win in one court will lead to another, with monetary awards increasing with each win. That will, eventually, win over shareholders who will demand action by Big Guns’ executives. And they will get it. Just ask Big Tobacco and Big Pharma.