Litigation: Another Toolkit for Tobacco Control

1
Litigation Another Toolkit for Tobacco Control

• Richard A. Daynard, J.D, Ph.D.
• Professor of Law
• Northeastern University, Boston, USA
• Chair, Tobacco Products Liability Project
• President, Public Health Advocacy Institute

2

• The FCTC encourages tobacco litigation
• Article 4.5 provides that issues relating to
  liability, as determined by each Party within its
  jurisdiction, are an important part of
  comprehensive tobacco control.
• Article 19.1 provides that For the purpose of
  tobacco control, the Parties shall consider
  taking legislative action or promoting their
  existing laws, where necessary, to deal with
  criminal and civil liability, including
  compensation where appropriate.

3
How can lawsuits support tobacco control?

• Focus public attention on the misdeeds of the
  industry and the harm done by tobacco use
• Individual cases personalize tobacco-caused
  diseases, and force industry PR to characterize
  smokers as reckless about their own health
• Obtain discovery of internal documents detailing
  tobacco industry misbehavior
• Millions of pages, dealing with misbehavior
  worldwide, available at http//legacy.library.ucsf
  .edu/
• Prepares public, legislators and judges to take
  strong action against industry

4

• Get court orders forcing the industry to stop
  illegal practices
• e.g. violations of advertising bans
• Get court orders forcing the government to apply
  legal and constitutional requirements
• e.g. requiring government to protect health of
  nonsmokers by banning smoking in public places

5

• Large damage awards or settlements force industry
  to raise prices, discouraging consumption
  especially among younger and poorer consumers
• Tobacco companies can be forced to pay for past
  medical and other expenses, as well as for
  assistance in quitting
• Fear of damage awards may persuade companies to
  improve behavior

6
Public interest cases

• Many countries allow NGOs to bring legal cases
  to enforce legal, constitutional, and treaty
  provisions others (like the US) do not
• Public interest case in India resulted in Supreme
  Court order that made legislature establish
  strong secondhand smoke protections
• Cases in Bangladesh and Mali enforced laws
  against tobacco advertising and promotion

7
Health care cost reimbursement

• The tobacco industry is responsible for a
  substantial fraction of overall health care
  spending
• The US tobacco industry settled in 1998 with all
  50 states to reimburse them for tobacco-caused
  health care costs about 10 billion/year, plus
  behavioral constraints
• British Columbia and other Canadian provinces
  proceeding with reimbursement cases Canadian
  Supreme Court has given go-ahead
• Israeli health insurance providers proceeding
  with similar cases, as are governments in Saudi
  Arabia and Nigeria

8
Individual smoker cases

• Incriminating industry documents available online
  have made these cases winnable
• Documents deal with industry behavior around the
  world
• Judges and jurors get angry when they see how
  industry has behaved large damages have been
  awarded and upheld
• Cases have been brought in more than a dozen
  countries

9
Secondhand smoke cases

• Workers compensation, disability, and other cases
  against employers can both help individual
  workers and reduce employer opposition to
  smoke-free workplaces
• Laws protecting rights of the disabled, including
  e.g. asthmatics, may require that public places
  be made smoke-free
• Protecting children from exposure to secondhand
  smoke has been important factor in custody
  disputes
• Suits possible against tobacco industry, e.g.
  class action case by nonsmoking flight attendants
  that resulted in funding the Flight Attendants
  Medical Research Institute

10
Cigarette fire cases

• Cigarettes can be designed to self-extinguish if
  not steadily puffed indeed, all cigarettes sold
  in several US states are so designed (using a
  Philip Morris patent)
• Philip Morris settled for more than 1 million
  with a Texas smoker whose smoldering cigarette
  ignited her cars upholstery, injuring her child

11
Smuggling Cases

• The tobacco industry conspired with smugglers to
  evade customs duties and establish new markets
• Philip Morris settled a smuggling complaint with
  the European Community for 1 billion over 10
  years, plus strong monetary sanctions if caught
  smuggling in the future.

12
Recent U.S. Cases

• U.S. v. Philip Morris et al Judge in
  racketeering case found tobacco companies
  committed 6 kinds of fraud
• Engle Class action by Florida smokers upheld,
  simplifying individual actions
• Schwab Class action by smokers fooled by light
  cigarette fraud given go-ahead

13
Getting help

• The Tobacco Products Liability Project of the
  Public Health Advocacy Institute (www.tplp.org),
  established in 1984, exists to provide advice on
  how best to bring lawsuits against the tobacco
  industryPlease contact us at help_at_tplp.org you
  can also contact me personally at
  r.daynard_at_neu.edu
• Financial help for promising impact cases is
  available from Bloomberg via the Campaign for
  Tobacco-Free Kids