The Future Challenges for Tobacco Control
Chapter 7
The Future Challenges for Tobacco Control
A Litigation
Litigation is likely to play a decreasing role in tobacco control. It has had limited impact outside North America. In large part this is due to structural problems – costs and risks of litigation, lower damage levels including non-availability of punitive damages and lack of class action procedures. These made it difficult to find lawyers sufficiently resourced persuasively to present some of the nuanced arguments based on tobacco companies maintaining the ‘controversy’ and failing to warn of risks about which they may have known more than they let on. This included industry knowledge of the diseases linked to smoking or ETS, the addictive properties of nicotine and their ability to manipulate it as well as the real impact on smokers of using ‘light’ cigarettes. These issues do not seem to have been as well-voiced in Europe as in the US. At times this combined with a seeming judicial reluctance even to engage with arguments that anyone except the smoker should be responsible for the damage caused by their decision to start and continue smoking. Little regard seems to have been paid to the part the industry played in fuelling the controversy about the health effects of smoking and the fact that during the 1960s, and even beyond, there was heated debate about the risks of smoking. Moreover so keen were some judges to absolve the companies of liability that they even thought their view of the law’s ‘individualist philosophy’ was relevant to the scientific question of addiction and determined that smokers could quit if they wanted to. Man’s laws have not yet, however, managed to change natures.
Litigation has been more successful in the US. The lure of occasional substantial victories is likely to encourage continued individual claims for the foreseeable future; albeit the numbers will probably tail off. However, even in the US litigation has been an irritant to the tobacco industry rather than a lethal threat. This is inevitable so long as tobacco per se remains immune from legal challenge. ‘Clean’ tobacco whose safety is not misrepresented continues to be secure from challenge. Successful claims have and/or will involve allegations based on the industry misrepresenting what it knew or hiding dangers; from making unfounded claims about allegedly safer products such as ‘light’ cigarettes or manipulating nicotine to enhance addiction. Whether, in the future, some products will be condemned because they are more hazardous than alternatives remains to be seen. At least in Europe products having tar, nicotine and carbon monoxide yields above prescribed maximums may be subject to this challenge, but most PREPs are probably not viewed as direct replacement products. This would be necessary to allow product liability claims to be established on the basis of the existence of safer alternatives. Possibly the position may change if technology develops so that, for instance, new designs could stop or reduce particular nitrosamines.
In the long term litigation will not remove tobacco from the market. The long term value of the US litigation may prove to be the documents disclosed which have helped tarnish the image of the industry and been an important element in the ‘de-normalisation’ of tobacco. This has also helped promote regulation. Even in the US, with the passing of the FSPTCA 2009, regulation is likely to prove the long term key to reducing deaths from smoking.
B Regulatory Environment
Part of the MSA’s objective was to emaciate the industry’s lobbying power by disbanding its trade associations. By contrast vigorous public health lobbying by civil society has been and will continue to be an important weapon. This is evidenced by the work of GASP groups in the US in relation to ETS and work done archiving the documents produced through the discovery procedure in litigation. In Europe too pressure groups, often in association with the medical profession, have been influential. There has been a synergy between public health activists and officials in national ministries of health, the EU Commission and WHO. They share the common objective of reducing smoking. Bringing a joined up approach to tobacco control is important. One way to do this is to have a highly focused agency such as Ireland’s pioneering Office of Tobacco Control.
The industry has not buckled to legislation meekly. It has been quick to invoke constitutional and human rights law to protect itself from unwelcome regulation. Some of these challenges could have been avoided if politicians had been willing to do more to structure the laws to give tobacco control a firmer legal base. For example, all the debate about FDA jurisdiction over tobacco was swept aside when Congress granted jurisdiction under the FSPTCA 2009. Equally pre-emption arguments can be avoided if legislatures draft their laws to allow lower rungs in the democratic structures the freedom to impose their own stricter requirements and controls.
The European courts have shown themselves willing to respect the public health choices made so long as there is the constitutional power to enact the laws. It is hard to image circumstances in which commercial free speech will seriously threaten European legislation restricting tobacco advertising. In the US, the First Amendment poses a more insurmountable obstacle, but still significant controls may be possible if they are well justified, targeted and proportionate.
European industry has always been more resigned to legislation that its US counterparts and the fact that many continental governments had until recently stakes in national tobacco companies has facilitated relations. In the US Philip Morris has become more favourably inclined to regulation in recent times. Of course there must be limits to what industry is willing to accept, for if regulation is truly effective in reducing smoking it will kill off the industry.
C International Regulation
(i) Framework Convention on Tobacco Control
Detailed and comprehensive regulation of the tobacco industry is now a firm fixture on the legal landscape globally. This has been confirmed by the adoption of the first WHO Treaty, the Framework Convention on Tobacco Control (‘hereafter’ FCTC).1 First conceived in 1995 it was unanimously adopted on 21 May 2003 and came into force on 27 February 2005, 90 days after it had been acceded to, ratified, accepted or approved by 40 states. By 2005 it had 168 signatories, including the European Community, making it one of the most successful UN treaties ever. It marks a change in WHO policies to addictive substances by concentrating on demand reduction strategies as well as supply issues. It stops short of calling for the banning of any products, not even oral tobacco. Its adoption was an appreciation of the global dimension to tobacco trade brought about by trade liberalisation and direct foreign investment. In particular cross-border effects are seen in global marketing strategies and the international movement in contraband and counterfeit cigarettes.
An important dimension of the FCTC is the obligation on member states to set up national structures for tobacco control including effective legislative measures2 that have to be backed-up by criminal and civil liability including compensation where appropriate.3 This does not seem to be a call to impose product liability on tobacco per se for the liability is linked to ‘tobacco control’ which is defined as ‘a range of supply, demand and harm reduction strategies that aim to improve the health of the population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke’.4 Thus it seems geared to ensuring the regulatory rules are enforced. There are also provisions for scientific and technical cooperation and the communication of information.5 These including important measures for legal regulation such as the obligation to endeavour to ‘progressively establish and maintain an updated data base of laws and regulations on tobacco control and, as appropriate information about their enforcement, as well as pertinent jurisprudence’6 and to provide assistance when requested ‘in the development of a strong legislative foundation’.7 The former provision should provide a solid comparative law basis for law reform, whilst the latter will encourage assistance being provided to developing countries.
Several provisions of the FCTC are beyond the scope of this work; in particular those dealing with price and tax,8 promoting cessation,9 and illicit trade.10 There are detailed rules on ETS11 and the guidelines emphasise the need for a 100 per cent smoke-free environment with no safe threshold and therefore rejecting ventilation of designated smoking areas as an option.12 The focus of this work is on consumer protection measures and it is remarkable that many of the consumer protection features that this work has tracked being developed at the national level are now recognised by an international treaty as essential features of the regulatory landscape. The Guidelines often go further than the FCTC in promoting more extensive regulatory techniques at the cutting edge of current debates. It is perhaps understandable that the public health community is able to influence the content of the Guidelines more than the Treaty and it remains to be seen if legislators are won over. One policy choice in particular is at the core of the future direction of tobacco control since, contrary to the current EU position, it does not believe tar, nicotine and carbon monoxide yields should be displayed on packs. This is at the heart of debate on whether future policy should just continue to ‘de-normalise’ tobacco and smokers or seek through information and education to provide smokers with the tools to see that quitting is in their best interest even if PREPs are available.
(ii) Youth Access
There are comprehensive rules on sales to youths13 covering bans on under age sales,14 tobacco products being directly accessible, tobacco products being in the form of sweets, snacks, toys or other objects appealing to minors. Free distribution of tobacco products should be generally prohibited, but especially for minors. Equally the sale of individual or small packets is frowned upon.
Vending machines should not be accessible to minors, but parties can indicate their commitment to remove them entirely. However, the Guideline on Implementing Article 13 says they should be banned as a form of advertising.15 However, it is difficult to justify using such a general rule to support a ban when there are specific provisions that provide otherwise.