Tobacco – A Challenge to the Law

Chapter 1
Tobacco – A Challenge to the Law

A Introduction

Tobacco control is an emotive subject. The story of tobacco litigation and regulation has many colourful moments that will hopefully be captured in the ensuing pages, but as well as storytelling this book seeks to draw out some key lessons both for legal policy in a general sense, concerning the balance between private and public law, and to assist with the specific debates about how best to develop a tobacco control policy.

(i) Three Central Questions of Legal Policy

This book is a history of the way consumer protection laws have been used to de-normalise and hence reduce smoking and the resulting harm caused. It focuses mainly on the approaches in the United States and Europe, particularly the United Kingdom. Although rich in information, three central questions are at the core of the book.

Litigation vs. regulation  First, epitomised by the contrast between the US and European approaches to tobacco control is the debate about the respective roles of litigation (private law) and regulation. Although it is too stark to simply say that Europe regulates whilst the US litigates – the US has had some regulation and this is likely to increase – there are important debates about the roles of private and public law. Though the US litigation has undoubtedly promoted public health regulation – not least by drawing attention to the bad behaviour of the tobacco industry – looking forward, long-term solutions seem to favour a regulatory response. Indeed, using litigation as a surrogate for regulation raises important questions about accountability for policy development in a democracy; whereas the fact litigation had to be resorted to might cause the workings of the existing political structures to be reviewed.

Constitutional limits to regulation  A second major issue is the extent to which a state can regulate a lawful product like tobacco. Some constitutional disputes have concerned debates between levels of governments as to competence, which can relatively easily be resolved given political will. More challenging is the question of any constitutional limits on the substance of regulation that has been most hotly contested under the banner of commercial free speech. The general approach favoured in this work is that the fact tobacco is legally sold should not justify its promotion. It is a quirk of social and cultural history that allows it to be marketed. Tobacco would undoubtedly not be allowed to be sold if it were introduced for the first time today with our present knowledge of its dangers. Therefore public health concerns should weigh heavily when assessing restrictions against constitutional principles.

There are a wide range of tobacco products available and though it is easy to say that all tobacco products are dangerous it is hard to determine the relative risk of different products. These issues are rarely discussed in the literature, but so long as such products are legal, smokers must be given the facts and allowed to make rational decisions.1 However, this does not mean giving tobacco companies an easy time and emphasising the serious risks posed by any tobacco product must be the central message.

(ii) Consumer Protection Measures

The World Health Organisation (WHO), in its Report on the Global Tobacco Epidemic in 2008 proposed the MPOWER package. This covered:

This book will concentrate on the legal aspects associated with ‘W’ and ‘E’ with some attention given to ‘P’. In addition it will consider a topic of great importance, but too often overlooked, namely if, and if so, how cigarettes can be made safer. The need to develop complementary strategies is, however, well understood. A range of measures are being invoked to achieve tobacco public health objectives. Some important topics are not covered in this work, including education, campaigns to encourage smokers to quit and support them through the process,² as well as raising taxes on tobacco.³ Health and safety at work rules have also helped promote a smoke-free environment. This work, however, concentrates on the contribution of those consumer protection rules that control the composition, packaging, marketing and sale of tobacco products and the tobacco product liability litigation that has had a high profile in the US. ETS controls, although not strictly consumer protection laws, are discussed briefly as they have been central to current policy, into which the consumer protection rules fit. This policy can be understood as involving the ‘de-normalisation’ of smoking. This de-normalisation of smoking interacts with the law to make legal interventions more acceptable and these in turn further de-normalise smoking.

De-normalisation is currently a popular concept in anti-tobacco circles. However, its exact meaning varies4 and is often not explicitly recognised in policy strategies. In Canada it is said to relate to ‘activities undertaken specifically to reposition tobacco products and the tobacco industry consistent with the addictive and hazardous nature of tobacco products, the health, social and economic burden resulting from the use of tobacco, and the practices undertaken by the industry to promote its products and create goodwill toward the industry’.⁵ It is probably easier to understand it as seeking ‘to change the broad social norms around using tobacco – to push tobacco use out of the charmed circle of normal desirable practice to being an abnormal practice’.⁶ It is countering the positive image created by the industry of smoking as an aspirational activity and fostering the idea of the smoker as an often unsuccessful loser, ostracised from the successful mainstream and using smoking as a crutch for a lack of self-esteem and subject to the odours, illnesses associated with it, to the extent of having to be physically separated from others when smoking.

This stigmatisation, as explained by Goffmann,⁷ leads to the ‘spoiled identity’ of the smoker. Research suggests the public have negative attitudes to smokers⁸ and such stigmatisation has an impact on reducing smoking rates. Smoking rates have been found to be lower in states where public sentiment is more negative to smoking and smokers that have experienced unfavourable public sentiment are more likely to quit.⁹ However, whilst this might be considered positive from a public health perspective there have been cautionary notes sounded about the need to balance the public health advantages of stigmatisation against the harm to those who are stigmatised.¹⁰

Just as the consumer protection laws form only part of the laws and policies aimed at restricting smoking, so equally are all of these only part of the factors affecting the de-normalisation of smoking which also includes many aspects of culture and custom. To take just one example, consider how almost unthinkable it is today that someone would start smoking in your home without first asking. With so many influences at work it is hard to calculate the impact of any one measure, but the consumer protection rules would seem to have a role to play as part of the broader campaign to de-normalise tobacco use.

In recent years the public health campaign against tobacco has become ‘legalised’ with product liability litigation in the US taking centre stage and Europe favouring a more regulatory approach.11 Litigation against the tobacco industry is more to the fore in the US partly because the political system seemed for a long time unable to legislate effectively in the face of powerful tobacco industry interests. This may change with the adoption of the Family Smoking Prevention and Tobacco Control Act (FSPTCA 2009). Litigation is less common for consumer complaints in the UK and Europe due to a less organised plaintiff bar and weaker culture of product liability litigation. However, both the US and Europe have seen frequent litigation by industry challenging regulation.

Each legal and political system can learn from these experiences. Americans might ponder whether litigation is an efficient way to resolve social problems, given that the long-term outcome has been mild forms of regulation and the payments under the Master Settlement Agreement (MSA) with the states having been structured in such a way that they have similar effects to taxation.¹² Possibly the same or better outcomes could have been achieved through the political process and certainly the regulatory outcomes would be more easily legitimated. European states might be concerned that it took US litigation to uncover the industry (mis) conduct that gave the impetus to tackle the problems of tobacco.

(ii) Contrasting Business Ethics

There seems to be more distrust of big business in the US, particularly amongst the NGO and trial lawyers. The UK/European governments have favoured cooperation with the tobacco industry, assisted on continental Europe by government ownership of many tobacco companies. European industry is often portrayed in a better light than that of their US counterparts. Whether the conduct of European industry justifies this assessment is debateable, but arguably the policy of cooperation is a moot point given the obvious global alliances between US and European companies and the evidence of how they cooperated.13 Moreover, European tobacco companies have not always accepted the regulatory solutions adopted by the European Union or its Member States and have frequently resorted to litigation to challenge it.

(iii) Imbalances of Power Between Legal Actors

In all jurisdictions a common theme is the problem of opposing the organisation and power of large multinationals. The lobbying power and legal resources of the tobacco industry are infamous and their financial, political and legal muscles have been well flexed in combating the legal challenges they have been confronted with. By contrast the resources of the state are finite – and likely to shrink in the future – and NGOs also have limited resources and until recently were not clearly focused on tobacco issues in either the US or Europe.

Lawyers are also an important part of the dynamic. Well-resourced US trial lawyers have taken advantage of procedural rules to demand disclosure which revealed a mountain of documentation that was then exploited due to the incentives of contingent fee litigation. Their counterparts in Europe have struggled to have the same success. On the defence side the lawyers have been equally important, in part, because of the way they used procedures and appeals to ensure access to justice was as difficult and expensive as possible for the alleged victims. However, lawyers were also involved at several stages in advising the tobacco companies about the implications of research and scientific discovery on their legal position.¹⁴ The use of this technique to claim legal privilege raises important ethical issues, as obviously would any evidence of shredding documentation. Undoubtedly the main player on the defendant side was David Hardy of Shook, Hardy and Bacon. On his death-bed he was defiant about his role, believing the industry deserved the best defence he could give them, but also realistic saying ‘I bought em’ an extra 20 or 30 years’.¹⁵

(iv) Law as a Driver of Social Change

More fundamentally, some might question whether these legal restrictions have any real impact given the limited influence law might have on influencing social conduct. The impact on social behaviour of the various regulatory controls on advertising, promotion, product content and ETS are difficult to assess, but, nevertheless, it does seem that changes to the law can help as part of a change of culture alongside education and public health reform, as well as tax policy.16 Law is but one aspect of the public health campaign, but even by merely giving visibility to the issue it can perform an important function as part of the de-normalisation process.

(v) Autonomy as a Driver of Legal Policy

Belief in the autonomy of the adult citizen’s freedom to decide whether to smoke is a common feature across US and European societies which informs the dominant policy of advising consumers of the risks so they can make an informed choice. This value of freedom of choice is challenged by the evidence of the influence of factors such as peer pressure and advertising on the decision to smoke.

As smokers often start smoking when youths, the free choice argument is weakened when combined with the addictive nature of tobacco making it difficult to stop smoking – although many still maintain the individual can control whether he or she stops smoking. Youth smoking is normally frowned upon leading to prohibitions on both sales to youths and on marketing directed at them. Youths are viewed as needing protection from the opportunity of assuming the risks of smoking. We shall see that at key points regulation has been introduced on the back of protecting youths as this is a politically popular rhetoric, even if the legislators might have broader ambitions.

It has also been relatively easy to mobilise support for ETS controls. This is ironic as the evidence of harm from ETS is weaker than that for direct inhalation, and it certainly causes less overall harm than direct smoking. But it is easier to gain support for because it protects third party non-smokers. The advocates of such laws can turn the autonomy argument around and demand non-smokers have the choice not to be exposed to smoke.

C Structure of the Chapter

This introductory chapter seeks to provide the reader with enough background to understand the legal issues raised in subsequent chapters.¹⁷ Section ‘D’ studies what tobacco is and the forms in which it has been smoked, noting that harm only really started to develop once cigarettes became popular. Over time efforts were made to address the risks of cigarettes with the introduction of filters and lower tar and nicotine yielding products. Whether these were genuine attempts to make the product safer or mere techniques to reassure users, and hence make them less likely to quit smoking, is an important topic. The search for the safe(r) cigarette has been an important, if at times neglected theme.

Crucial to the regulation of the tobacco and product liability litigation are the health risks associated with smoking. In section ‘I(i)’ the advances in knowledge are tracked and the extent of the health risks known today assessed, and in section ‘I(ii)’ what knowledge the industry had at various times and the what it did with that knowledge is outlined. There were persistent attempts to challenge the evidence of smoking causing harm and even today some tobacco industry insiders refuse to accept publically that smoking causes cancer. This can of course be due to a real belief that the link has not been proven – it is a fairly natural psychological tendency to prefer to interpret evidence to justify the conclusions one wants to reach.18 Or it could be simply self-interest in perpetuating a profitable industry and shielding it from litigation and regulatory control. If industry could have warned of health risks sooner than mandated by legislation this has obvious legal implications, as do any misrepresentations made by industry on the health risks.

Some smokers continue to smoke despite knowing the risks, because they like the taste and experience. Many others would like to quit but cannot, or at least find it very difficult to quit. Whether it is appropriate to describe smokers as addicted has been a controversial matter that has been hotly disputed by the tobacco companies. They were understandably eager to play down addiction as it has important legal policy implications. If smokers are addicted then it is harder to blame them for causing harm to themselves by not ceasing to smoke once they became aware of the risks. Especially as regards youth smoking it looks particularly pernicious if vulnerable youths are lured into trying a potentially lethal product they may not be able to stop using. The development of the consensus that smokers are addicted due to nicotine in tobacco is outlined in section ‘J(i)’ together with evidence of industry knowledge about nicotine addiction in ‘J(ii)’. The practice of manipulating the nicotine content is explained in section ‘K’. This was important both in litigation and in prompting the Food and Drug Administration (FDA) to seek jurisdiction to regulate tobacco. In section ‘L’ the ‘light’ cigarette controversy is considered to show why such cigarettes are not a safer option and how the industry sought to take advantage of the perceived health advantages of ‘light’ cigarettes whilst claiming it was only referring to the lighter taste. Similarly in section ‘M(i)’ the developing knowledge of risks from passive smoking or Environmental Tobacco Smoke (ETS) are studied with the industries denials being documented in ‘M(ii)’.

D Tobacco19

The early tobacco used was a strong dark tobacco leaf. Its alkaline character meant the smoke was absorbed in the mouth and caused little apparent effect on internal organs. By contrast the lighter ‘Bright’ leaf tobacco, commonly known as ‘Virginia’ that became commonly used in cigarettes produced smoke, which because of its mildness encouraged inhalation.20 This smoke was acidic and not absorbed in the mouth, but travelled down the throat into the respiratory system where eventually nicotine and other elements in the smoke were absorbed into the blood system. Unfortunately for smokers of ‘Bright’ tobacco, the lung is far more absorbent than the mouth. Fifty per cent of the ‘Bright’ leaf smoke is retained in the lungs, 80 per cent of tars are deposited in the respiratory tract and 90 per cent of nicotine passes into blood.²¹ ‘Burley’ tobacco also became popular due to its ready ability to absorb liquid additives.²² ‘Oriental’ tobacco grown in Turkey, the Balkans and Middle East is more aromatic and is sometimes mixed in western brands due to its aromatic flavour.

If tobacco use had remained restricted to pipes, cigars and chewing the rougher dark tobacco, there would probably have been fewer health related problems. Cigarettes are now the most common form of tobacco consumption and as their widespread use and the ease with which its smoke can be inhaled has caused most of the tobacco related health problems it will be the focus of attention. Cigarettes first developed in some of the Northern US cities. Their sales got a boost when Lewis Ginter moved to Richmond from New York to join up with John Allen. They developed mass production using Bonsack’s machine that obtained a patent in 1880²³ and which the British firm of Wills also purchased in 1883. Allen and Ginter increased the popularity of cigarettes by packaging them smartly and giving away sets of colourful cards.²⁴ The invention of safety matches also allowed tobacco products to be smoked easily all day.²⁵ By 1880, 500 million cigarettes were being sold in the US, but cigars were still far more popular.²⁶ Indeed, at the turn of the century cigarettes suffered a dip in popularity in the US as they became sandwiched between growing cigar sales, fuelled by greater prosperity and a price war on chewing tobacco. Cigarettes were more common in Europe.

At the end of the nineteenth century cigarettes were described as only being fit for ‘dudes and college misfits’.27 However, thereafter cigarettes became increasingly popular. They suited modern twentieth century lifestyles. They were convenient and easy to light up, fitting into the more hectic pace of modern life. They gave off less smoke than cigars, which again suited the more crowded urban conditions. Cigarettes were further boosted when their convenient form meant they were supplied to troops in the First World War – removing any stigma that they were an unmanly form of tobacco consumption. By the Second World War they were so integral to the soldier’s life that camps holding GIs waiting to be shipped back home were called Camp Chesterfield, Camp Lucky Strike, Camp Pall Mall and Camp Atlanta.²⁸ Equally, female liberation led ladies to demand ‘the right to smoke’, even if smoking in public was still taboo.²⁹ In the US annual per capita consumption of cigarettes in 1900 stood at approximately 49 cigarettes; by 1930, annual per capita consumption was over 1,300; by 1950, it was over 3,000.³⁰ They were most readily accepted in the UK where by the beginning of the twentieth century they amounted to 20 per cent of tobacco consumption. This penetration of the tobacco market was reached in 1940 by the US, but not until 1961 in Belgium and Denmark, and 1972 by the Netherlands.³¹

Although there was strong competition between products it seems that the main difference was in product image rather than content; as Fortune noted in 1936 ‘if Reynolds, Liggett and Myers or American had to give up either their secret formula of their brand names, they would keep the brand names’.³² The US market was originally dominated by three brands ‘Lucky Strike’ (American Tobacco Company), ‘Camel’ (R.J. Reynolds) and ‘Chesterfield’ (Lorillard). Later of course ‘Marlboro’ (Philip Morris) was to come to dominate. In the UK, ‘Woodbine’ at one time held 70 per cent of the market.³³ Over time the number of brands proliferated as manufacturers differentiated to reach market segments and introduced filters, low tar, mentholated, king-size and products aimed at the female market. In 1985, the UK knew around 140 different cigarette brands.³⁴ Nevertheless, from 1989–99 in Australia, Brazil, Canada, Italy, France, Mexico, Germany, UK and US the top ten brands accounted for at least 70 per cent of sales.³⁵

Derthick comments ‘the cigarette executives of the 1950s and 1960s did not wish to kill anyone’ and hoped scientists could find and remove the harmful substance.36 As the health risks began to emerge in the 1950s tobacco companies began to seek products that offered greater safety. Many in the industry seemed to have genuinely hoped they could find the cause of cancer and eliminate it.³⁷ Such modified products are nowadays known as potential reduced exposure products (PREPs). They initially involved both techniques aimed at a general reduction in the amount of smoke and targeted measures aimed at elements that were considered to be particularly dangerous. Methods of general reduction included using filters, reconstituted or expanded tobacco, burning less tobacco (by, for example, reducing the circumference and length of rod), and increasing air dilution by means of the filter and porous paper. Selective reduction targeted elements such as benzo(a)pyrne, phenols, ciliastats and tobacco specific nitrosamines (TSNAs).

The 1950s in the US have been called the ‘tar derby’ as companies competed to produce cigarettes with filters and lower tar yields. In 1952 Lorillard launched a filtered cigarette, ‘Kent’, which it claimed was ‘The Greatest Health Protection in Cigarette History’ and ran an advertisement stating ‘Here’s How Science Solved Our Problem of Sensitivity to Nicotine and Tars’. Ironically the filter was arguably too effective rendering the cigarette flavourless and requiring a redesign before it became popular.³⁸ Liggett and Myers, fortified by a six month study apparently showing no ill effects from its filtered product, described their ‘L and M Filters’ as being ‘Just What the Doctor Ordered’.³⁹ By contrast Reynolds entered the filter market, but avoided health claims and concentrated on flavour – it tried to counter the lack of taste associated with filters by packing the filter with tar and nicotine using Reconstituted Sheet Tobacco (RST).⁴⁰ Indeed, for the most part, the industry felt it was safer not to make any relative health claims for filter products for fear of drawing attention to the risks of smoking. As health concerns rose the filter tip became more popular, so that in the US, whilst it represented only 10 per cent of the market in 1954 this had risen to more than 50 per cent by the end of the decade.⁴¹ However, filter cigarettes used stronger tobacco and independent reports soon revealed to the public that the tar and nicotine yields were no less than for unfiltered products.⁴² Mentholated cigarettes also became popular as part of the increased health awareness, although ironically the fact they made it pleasanter to inhale for longer probably increased the risks.

As the health risks became more apparent smokers switched to lower tar yielding cigarettes. New low tar brands were developed as well as low tar extensions of existing established brands. In fact this was quite profitable for the tobacco industry as these products were cheaper to produce and many smokers smoked more as holes in the filters increased the burn rate.43 Smokers needed to keep up their daily intake of nicotine and so would smoke more, use their fingers to cover the holes in the filter and take longer, deeper draws to compensate for the lower yields. As one industry research paper noted, ‘We find that our smokers [were] smoking cigarettes in 1972 that delivered significantly less tar and nicotine than in 1968. At the same time they were smoking more cigarettes as well as more of the rod [farther down the tobacco product] from each cigarette. These findings suggest that … a tar and nicotine quota mechanism may be operative. That is they may be smoking more … to compensate for the decreases in the tar and nicotine delivery of their cigarettes’.⁴⁴ It was subsequently denied during products liability litigation that Philip Morris had found this compensation theory to be proven.⁴⁵ The Barclay filter perhaps is the most extreme example of a filter which because of its grooved design had very low machine readings, but almost unavoidably ensured real smokers compensated. Its design so affected the readings that even one of its competitors, R.J. Reynolds, was moved to complain to the Federal Trade Commission (FTC).⁴⁶

Cigarette brands were also developed for the female market – these were generally filtered (as women were more health conscious) and longer as women found them more stylish. American Tobacco introduced ‘Silva Thins’, but scored somewhat of an own-goal with its advertising slogan ‘Cigarettes are like girls, the best ones are thin and rich’.⁴⁷ Philip Morris got the psychology and marketing right with its ‘Virginia Slims’ associating it with stylish looks and sports like tennis.⁴⁸

The tobacco industry also manipulated the flavour of the product using additives and sweeteners, to increase the flavour and yet keep the tar yield down. In fact this was a tricky business, for over-flavouring of the product could put off and sicken the smoker.49 Humectants are also used to retain moisture in the tobacco. Some of these sweeteners and additives have been blamed for causing harm. In fact modern cigarettes are complex products. It has been estimated there are 48,000 compounds in tobacco smoke and at least 559 additive compounds have been reported by the tobacco companies.⁵⁰

Can there be a safe or safer cigarette? There has always been a tension surrounding whether a safe or safer cigarette can and should be produced. The industry has prevaricated. In the early years it feared a negative impact on sales if it admitted there was a need to find safer alternatives. Many of the prototypes produced were also simply not appealing products to smokers. The difficulty of advertising any advances in safety, due both to regulator nervousness and their own defensiveness about their existing products, reduced the incentive to develop such products. The anti-smoking lobby equally had concerns about promoting safe cigarettes. It argued that there was no such thing as a safe cigarette and that smoking a PREP would be like jumping from the fifteenth instead of the twentieth floor of a block of flats. It also feared favourable publicity for supposedly less risky tobacco products might cause people to switch to these rather than stop smoking altogether. All these arguments also applied to redesigns of products to make them lower in tar and include filters. Indeed any positive impact of lower tar and filters may well be undercut by compensatory behaviour by smokers.⁵¹

Herein lies a central conundrum bedevilling the regulation of a product like tobacco, which is inherently dangerous but potentially pleasurable. The more regulation seeks to make it safer, the more users might feel willing to risk using the product. Public health could therefore actually be threatened by safer products being developed that might cause consumers to continue to smoke rather than quit. Public health advocates might favour patently dangerous tobacco products that consumers can be educated to reject. This tension in part explains some of the apparently contradictory regulatory policies, such as regulation seeking to reduce the tar content but also banning descriptors like ‘light’ or ‘low tar’ that could inform consumers of the lower level of tar. The opposition of the public health community to claims of advances in safety for cigarettes also explains the reluctance of many in the cigarette industry to invest in researching such products.

There were scientists, however, who wanted to try to produce a safer cigarette. They hoped to be able to isolate dangerous elements in smoke and remove or filter them out or to establish whether there was a threshold level of exposure to potentially carcinogenic substances.52 The National Cancer Institute (NCI), a US government body, brought together scientists, with Ernst Wynder at the forefront, and the industry in an attempt to develop a safer cigarette. Industry was no doubt sceptical about the possibility of finding such a safe product and also concerned that seeking a safer product was an implied admission that smoking was hazardous. Yet it would have been untenable for the industry not to cooperate, and the lure of a form of cigarette supported by the government was appealing. The Less Hazardous Cigarette Working Group was set up, which under industry pressure changed its name to the Tobacco Working Group and eventually became the Smoking and Health Program. It was perhaps surprising that government, rather than the industry, was investing in research to make safe a product that produced tremendous profits. But there were also scientists in the industry who were appreciating the link and wanting to try to find a solution.⁵³ The problem was that the industry came under the control of the lawyers, who preferred to use bodies such as the Tobacco Industry Research Council (TIRC) to continue the controversy rather than seek answers.

A 1972 study showed smokers of low tar (less than 17.6 mg tar, 1.2 mg nicotine) having a 16 per cent lower mortality rate than those of higher yielding brands (25.8 mg tar, 2.0 mg nicotine), a 15 per cent reduced risk of heart disease and 26 per cent less chance of developing lung cancer.⁵⁴ Although smokers of lower yielding cigarettes had better health than if they had smoked high yielding cigarettes, the study also found that non-smokers still had a 34 per cent lower mortality risk, 40 per cent lower risk of heart disease and 85 per cent lower risk of lung cancer. Gori who was running the NCI project had published an article championing the cause of the less hazardous cigarette.⁵⁵ He seemed to suggest there were ‘critical values’ (said to equate to two pre-1960 cigarettes with 43 mg tar and 3 mg nicotine, or a pack a day of cigarettes with 4.3 mg tar and 0.3 mg nicotine) where the risks of smokers approached those of non-smokers. However, he had to add that the evidence was too uncertain to treat these levels as safe. Nobody knew what a safe level was and it was possible that cancer could be caused by even a very limited exposure. Gori, in a follow-up paper with Lynch, seemed to make the mistake of assuming risk declined in proportion to the dosage intake.⁵⁶ Again, taking two pre-1960 cigarettes as posing a tolerable risk, based on their content of tar, nicotine, carbon monoxide, nitrogen oxide, hydrogen cyanide and acrolein, he then extrapolated how many modern cigarettes could be smoked each day to represent the same risk. The figures were startling and no doubt pleasing to the tobacco industry. For example, he suggested 23 ‘Carlton’ menthols could be smoked.57

Gorri and Lynch had added the rider that their calculations were made on the assumption that the smoker of the current brands ‘will not change his smoking habits in terms of depth of inhalation, frequency of puffing and butt length’.⁵⁸ In fact the evidence is that smokers of lower yielding cigarettes would adapt their behaviour by smoking more cigarettes,⁵⁹ smoking the cigarettes down closer to the butt,⁶⁰ inhaling deeper to get the full flavour and effect and increasing the kick of the product by using their fingers to cover the holes on the filter.⁶¹ Moreover, it was clear that smokers smoked differently from the smoking machines the FTC used to produce yield data.⁶²

This conundrum, whereby lower yielding cigarettes seem safer than higher yielding cigarettes, but still remain dangerous, has been at the heart of many of the regulatory public health debates. As noted, it explains why there has been pressure to have lower yields and yet there has been an unwillingness by the public health community to support lower yielding products by allowing labels such as ‘light’. The current debate centres on whether tar and nicotine levels should be disclosed at all. Lower yielding products are still hazardous; smoker behaviour may mean that individuals actually have no reduced risk, but will simply adapt their smoking habits to the new product, and in addition there are some specific risks associated with the low yield products.⁶³ Moreover, an alleged aim of the tobacco companies has been to lower the yield of tar whilst maintaining the delivery of nicotine, thus ensuring continued addiction. Many public health activists would favour the gradual elimination of all nicotine.

Nevertheless, there were clear financial incentives for tobacco companies to find safer ways of smoking tobacco. Not least was the fear that if their competitors came up first with such a product that satisfied customers they could see their market swept away from under their feet. In the 1960s, BAT had experimented with ‘Ariel’, a device in which tobacco was burned in a central tube containing nicotine and an aerosol generator allowing it to be inhaled. This was not developed. It gave off fewer toxins but only a small amount of taste.64 Instead the emphasis remained on the development of filters⁶⁵ and low tar products.

Many attempts were made to modify the product to make it safer. The experience of Liggett’s ‘Palladium’ cigarette is instructive. By combining palladium with salts of magnesium nitrate it was shown to reduce the tumour development when painted on mice by 95–100 per cent.⁶⁶ It was never marketed for a variety of reasons. It was difficult to get the public health community to support it so that it could have the documentation required by FTC rules if explicit health claims were to be made in advertising. Indeed it would have been hard to make explicit health claims, without back tracking on previous industry statements about the non-extractability of animal studies to humans. Moreover there were fears that if the product was launched Liggett would have to ditch its entire traditional product range. Some inside the company were reluctant to go down this route and their lawyers frightened the executives with fears of liability suits if they developed a safer product, but failed to disclose it, whereas if the product was launched users might nevertheless sue if they became ill alleging that the safety claims had been groundless.⁶⁷

Similarly, attempts to de-nicotinise cigarettes, like Benson and Hedges ‘De-Nic’ and Philip Morris ‘Next’ failed due to lack of consumer acceptance. Currently in the US, Vector Tobacco sells ‘Quest’ cigarettes offering three levels of reduced nicotine. However, whilst nicotine might be associated in the public eye with the same harmful effects as tar, it of course is not as directly harmful and these products often had just as much or even more tar than regular cigarettes. As nicotine is the addictive property that keeps smokers hooked, promoting reduced nicotine products is a risk for the tobacco industry. That companies have been prepared to explore developing such products is explained by their desire to compete with pharmaceutical products in the market aimed at quitters.⁶⁸

A wide range of PREPs are starting to be seriously developed.⁶⁹ Of the conventional harm reduction products today the most significant is probably Brown and Williamson’s ‘Advance’ cigarette that uses a tobacco cured using a patented process to reduce levels of TSNAs and a triple filter.70 Vector Tobacco has developed ‘Omni’ which claims to expose smokers to less carcinogens.

More radical work involved research into cigarettes that work when tobacco is heated rather than burned in the hope that it is the combustion of tobacco that generates many of the toxins. R.J. Reynolds led the way with their ‘Premier’ cigarette into which they invested nearly $1 billion. It had a frontend piece containing an insulated carbon heat source, tobacco, and an aluminium capsule containing tobacco, and a mouthpiece made up of a two-part filtration system. It showed substantial reductions in dangerous components and R.J. Reynolds made the data publicly available including in a peer-reviewed monograph called Chemical and Biological Studies on New Cigarette Prototypes That Heat Instead of Burn Tobacco.⁷¹ However, it never took off as a product and R.J. Reynolds are reported as explaining this was due to ‘a lack of consumer acceptance of the product due to its different taste and different smoking characteristics (i.e. difficult to light and did not burn down), and the negative media attention regarding product taste and possible intervention by the FTC and/or the FDA’.⁷² Indeed new products, rather than modifications of traditional ways of smoking tobacco, could have risked inviting the issue of regulation to be considered in the days when FDA had no jurisdiction over tobacco, but could argue the products were drug delivery devices. Certainly Philip Morris’s answer to ‘Premier’, the ‘Accord’, in which they invested around $420 million is very different from a traditional cigarette. Small cigarettes are placed into a dark rectangular heating device the size of a large candy bar and it limits the number of puff to eight per cigarette. ‘Accord’ remains available in certain US and Japanese markets, but has not been a commercial success. However, neither ‘Premier’ nor ‘Accord’ was marketed on the basis of health advantages. Instead focus was placed on the lack of side smoke and how much more polite a way to smoke this was.

After ‘Premier’, R.J. Reynolds turned to producing ‘Eclipse’. ‘Eclipse’ looks like and is smoked much the same way as any other cigarette, but still primarily heats, rather than burns, tobacco. From 1996–2000 Reynolds marketed it like ‘Premier’, as a cleaner rather than a safer product, but from 2000 a different approach was taken with health claims being made for ‘Eclipse’. The delay in making the claim was due to the company wanting to satisfy its own four-stage methodology for labelling a cigarette less hazardous. It was placed on limited national distribution in the US in 2003.

There were mixed messages within the tobacco industry. A lot of effort was going into reassuring smokers and at the same time ensuring that even if tar content was reduced nicotine levels were kept high to maintain ‘kick’ and addiction. Nevertheless, there was obviously a section of the industry seeking safer alternatives either out of a genuine desire to reduce harm or due to commercial incentives not to be left behind if others achieved the goal of developing a safe pleasurable way of smoking tobacco or obtaining nicotine. The examples above illustrate many of the paradoxes of tobacco. The incentives were simply not great enough to encourage the development of alternatives. It risked upsetting traditional smokers if their product was changed or scaring them if they were informed other products were safer. Indeed it was hard for an industry that did not publicly accept its products were unsafe to claim comparative health advantages. The attitude of the US public health community typically discouraged new innovations by claiming they were not cigarettes but ‘nicotine delivery devices’ that should be subject to FDA regulation. Such innovations would often merely spur many in the public health community to call for product liability with respect to the traditional product or its regulation. This made the industry hesitant to market aggressively the health advantages of new products and in turn without this knowledge consumers did not accept the changes.73 A comparison might be made with the way many are willing to compromise on preferences and switch from margarine to butter on health grounds. Many have made this change on health grounds despite in many cases consumers preferring the taste of butter. If the tobacco industry had been prepared to invest in marketing PREPs a similar change in attitudes might have been possible.

Whether or not new products like ‘Accord’, ‘Advance’ and ‘Eclipse’ are safer products is still a matter of debate.⁷⁴ The recent interest in developing PREPs may nevertheless be a sign that some in the tobacco industry have woken up to the need to explore safer alternatives and in some cases market them as such. The development of smokeless tobacco products is part of the same development. As nicotine is the hook for smoking there have been calls to reduce it to levels that would not be addictive over a 10–15 year period,75 but the feasibility of achieving this, at least if not part of a comprehensive strategy, has been doubted.⁷⁶

Possibly there is a case for not placing the sins of their predecessors on today’s tobacco company executives. A problem is the mistrust engendered because of the industries past behaviour. The ‘light’ cigarette scenario did a lot to undermine any faith the anti-tobacco movement might have had in the genuineness of the industry’s attempts to reduce harm. This combines with opposition of the public health community to anything that may make smoking seem acceptable and provide incentives to potential quitters not to do so. The result is a lack of meaningful dialogue between the industry and the public health community. Many opposing the tobacco industry see their task as preventing people using any tobacco products which they consider to be deadly products. For them simply moving them to a slightly less dangerous product is not the desired outcome.

PREPs are now part of a broader debate about tobacco harm reduction which sees some advocating the development of low nitrosamine smokeless tobacco products.⁷⁷ The debate over the Swedish ‘snus’⁷⁸ has been at the forefront of this, but in the US, tobacco lozengers like ‘Arriva Cigalets’ are also being promoted. However, other voices caution that any laxer regulation for smokeless products rather than cigarettes may encourage the industry to expand into that sector.⁷⁹ Alongside these there is also the developing market in approved pharmaceutical products that provide nicotine. A recent development has been the electronic cigarette giving doses of nicotine by means of a vaporised solution. The FDA in the US has categorised these as drug delivery devices. At first instance at a preliminary hearing a judge found that they were tobacco products as the nicotine was derived from tobacco and hence covered by an earlier Supreme Court decision denying jurisdiction over tobacco products as drug delivery devices80 and he also noted that the promotional material did not suggest they were to be used to prevent or alleviate nicotine withdrawal symptoms. Indeed the intention was quite the opposite as it wanted to be an alternative source of nicotine. He described it as ‘yet another example of the FDAs aggressive efforts to regulate recreational tobacco products as drugs or devices’.⁸¹ The Appeal Court has, however, placed a stay on the judgment pending appeal. The FDA will be able to regulate ‘e-cigarettes’; but the issue is whether it can require the product to satisfy it as to safety under the Food, Drug and Cosmetics Act or if it only has the more limited powers under the FSPTCA. The FDA is known to be concerned about the health impacts of ‘e-cigarettes’ and it seems there will also be a class action claiming that the advertising of the products has violated consumer protection statutes. However, the question remains that if tobacco and nicotine products are allowed what approach should be taken to products like ‘e-cigarettes’ if they can be shown to pose a lower risk than traditional tobacco products? The European Commission has issued an orientation note on the subject of Electronic Cigarettes and the EC Legislation⁸² noting that they are not covered by the Tobacco Products Directive if they do not contain any tobacco, but they might fall under directives concerned with human medicinal products or medical devices and would in any event be caught by the General Product Safety Directive.

The anti-tobacco movement is currently divided on how to approach these alternatives developed by the tobacco industry. Some recognise they might be less harmful that cigarettes, but others feel they still pose a risk and may do greater damage to global public health if they provide a reason for smokers not to quit or to start to smoke due to perceived reduced risks.⁸³ Although some oppose supporting any product that is addictive, many prefer the alternative approach of weaning smokers onto tobacco free nicotine products such as gum, lozenges, patches, inhalers or nasal sprays.⁸⁴ Professor Russell has suggested that ‘Sometime in the twenty-first century we may see the demise of tobacco use, but it is doubtful whether nicotine use will be abandoned. It is the impurities in tobacco and its smoke which kill, while nicotine provides most of the pleasure, stimulation and relief from stress’.⁸⁵ Although the situation is a long way from that, his prediction that if the tobacco companies did not purify their product the drug companies would do so, seems to be valid and is one prompt for the tobacco companies efforts to develop PREPs.

The search for PREPs is not only driven by concern for the smoker. Products that reduce the harm from second-hand smoke are also seen as valuable by the tobacco companies as this makes the smoker more comfortable about smoking and its effect on others.86 This is of course exactly the reason why so many anti-tobacco activists oppose them. However, if tobacco products are not banned surely they should be encouraged to be as safe as possible. There is certainly a risk that any developments will give consumers more courage to smoke, but if the state is not able to ban tobacco it has a duty to make tobacco products as safe as possible and allow consumers to make informed choices. Of course this also means that the overriding message should continue to be not to smoke at all. But absent a ban there is no realistic alternative other than trusting consumers to make wise choices, by providing them with all the facts to understand the consequences of their choices. The American Cancer Society and other organisations have in the past urged those that could not quit to cut down and to use milder cigarettes. Evidence suggests that smoking milder cigarettes may not have been the best advice.⁸⁷ Today’s smoking population need clear guidance on what risks are attached to what kind of smoking behaviour.

E Tobacco Industry

Central to the development of the US, and indeed the UK tobacco industry, was James Buchanan (Buck) Duke. He dominated the industry at the end of the eighteenth and beginning of the nineteenth century. He was an aggressive businessman and eventually most competitors felt they had no option but to come together with him under the American Tobacco Trust. Even his major competitor Richard Joshua Reynolds had to come to an accommodation and agreed a truce involving Duke investing in Reynolds. He also took on the UK market. He favoured the English market as England and the Empire used the same ‘Bright’ tobacco he preferred, whereas the rest of the world preferred dark ‘Oriental’. He bought into the Ogdens firm of Liverpool. This startled the other English companies, the principle ones being John Player of Nottingham and Wills of Bristol, who produced ‘Woodbine’. Wills came to the fore and brought 13 companies who came together as the Imperial Tobacco Company of Great Britain and Ireland in 1901. They had wanted the name ‘British Tobacco Company’, but Duke had already taken this. However, Duke came to realise it was in his interest to come to an accommodation with the British companies. He agreed to sell Ogdens to Imperial and the two companies in turn agreed not to compete in each other’s countries and to come together as British-American Tobacco Company to sell Imperial and American brands globally.88

This domination of the market was attracting the attention of the US authorities whose concern about monopolies had led to the passing of the Sherman Antitrust Act in 1890. In 1911 the US Supreme Court ordered the breaking up of American Tobacco. It was split up with major elements being a new American Tobacco (the largest company with a third of US smoking tobacco, a quarter of the plug trade and 6 per cent of cigar market), Liggett and Myers (about two-thirds of American Tobacco’s size) and Lorillard (half its size). Reynolds regained its independence. The carve-up of the world market between American, Imperial and British-American was also dissolved. British-American Tobacco was to enter the American market in 1927 when they purchased Brown and Williamson and launched ‘Raleigh’.

At this time Philip Morris was only a minor player running a shop in Bond Street, London. One of his competitors was nearby Benson and Hedges. Philip Morris went into receivership in 1894 and was taken over by William Curtis Thomson. It prospered as an upmarket niche company benefiting from its appointment to the crown. It opened a US branch in the first decade of the twentieth century. At first it only imported tobacco products, but soon realised it was more profitable to manufacture in the US. One of its brands named ‘Marlborough’, after the street where the London company was based, was to become a major force when remodelled in the 1950s. Benson and Hedges also became a US based company, but it developed later and never became a major player, before joining Philip Morris in a friendly merger in 1954.⁸⁹

R.J. Reynolds, having regained control of his company, saw the future of the cigarette, but first had to convince himself that cigarettes were safe. He felt that smoking was more dangerous than chewing tobacco and was open to Thomas Edison’s suggestion that it was the white cigarette paper which posed the threat. He only proceeded into the cigarette business after three separate laboratories had reported negative findings about the risks associated with cigarettes.⁹⁰ It would have been nice if this level of concern had been shared by all of his successors. He then launched the ‘Camel’ brand. American responded with ‘Lucky Strike’ and later added ‘Pall Mall’. Liggett and Myers launched ‘Chesterfield’. By 1940 the tobacco industry was extremely profitable, earning 17 per cent on invested capital; almost twice the average rate for public corporations.⁹¹ The Smokeless tobacco market in the US is dominated by United States Tobacco.

The US companies, perhaps starting to see rocky times ahead, began to diversify and globalise in the 1960s. Joseph Cullman, the President of Philip Morris, did not mention the health risks of smoking, but they must have been behind his statement to the press that, ‘The cigarette industry is strong today, but the situation may not continue indefinitely … Besides, there are very few one-product companies around today’.92 One by-product of diversification was of course that tobacco was associated with a range of company’s and so media owners that ran anti-tobacco stories risked losing not only tobacco advertising revenue, but also potentially that of the associated companies.⁹³

In 1988, Philip Morris made a major strategic decision in acquiring Kraft Foods. Indeed it has been suggested that the higher earning ratio of food rather than tobacco companies combined with the increasingly bad publicity about tobacco even caused Philip Morris to consider jettisoning tobacco at one stage.⁹⁴ Philip Morris invested in Venezuela and Germany, initially through a licensing deal with Brinkmann, but then eventually set up its own operation. Later it developed its stake in Europe through the Swiss Fabriques de Tabac Réunies (FTR) and was quick to see the potential of the European Union, buying up tobacco firms in the Benelux and establishing a factory in Holland. Licensing deals were struck with the Spanish government and in Eastern Europe. It also acquired a stake in Rothman International and generally spread its interest around the world.⁹⁵ In 2003 Philip Morris changed its name to Altria Group and later spun off Kraft Foods and Philip Morris International.

Reynolds had made a disastrous diversification into Sea-Land the container shipping line.⁹⁶ Later it took over Del Monte and the Heublein liquor business. In 1985 it merged with Nasbisco to form RJB Nabisco and was subject to a leveraged buyout in 1988 with R.J. Reynolds being spun out in 1999 and its overseas operations being sold to Japanese Tobacco, which in turn established JT International as its international arm. In 2004 Reynolds merged with Brown and Williamson to form Reynolds-American. The third biggest US company is Lorrillard. Legitt is the fourth biggest and has a sister company, Vector Tobacco, specialising in low and nicotine free cigarettes.

The UK was initially dominated by Imperial Tobacco, with Gallagher its only real competitor. When Imperial unloaded some stocks in Gallagher, Philip Morris sought to buy them. But this awakened American Tobacco’s interest and they took an increased stake in Gallagher which was to go on and become the leading UK player with its ‘Benson and Hedges’ and ‘Silk Cut’ brands. Philip Morris had originated in London, but was no longer to play a significant role in the UK market. Ironically of course it continued to market its own ‘Benson and Hedges’ in the US.

There is often said to have been a distinctly different approach taken by the UK industry compared to the US. Geoffrey Todd, a public relations officer for the UK tobacco manufacturers, was originally dismissed from his post for accepting the link between smoking and lung cancer. However, he was taken back on board and made director of a research division. Indeed the industry even funded research by those working in the anti-tobacco lobby; giving £250,000 in 1953 to the Medical Research Council. One of those campaigners, Charles Fletcher, describes writing to the chairman of Imperial Tobacco appealing to his Christian beliefs. They subsequently met and his view was that the industry accepted the evidence of increased risk of lung cancer, but hoped it was a problem they could solve by changing the product.97 Indeed some of the enlightened scientists within the British industry argued that the best protection for the serious situation the industry was in was candour.⁹⁸ Evidence of a genuine difference of approach between the UK and US in the 1960s is perhaps indicated by the tone of a report written by Geoffrey Todd and Philip Rogers after a tour of the US in which they noted the influence of lawyers and the propaganda role played by TIRC.⁹⁹ The different stance of the UK companies may have been influenced by the threat of tort litigation not being perceived as a serious risk. This benign view of the British tobacco industry, sits well with the co-regulatory tradition in the UK. Elsewhere in Europe the position was further complicated as state subsidised monopolies dominated, such as SEITA in France (with ‘Gauloises’ and ‘Gitanes’).

However, this favourable impression of European companies working closely with the state may be challenged by the evidence that has emerged of significant cooperation between US and EU companies.¹⁰⁰ There were certainly people in the UK, such as Sir Charles Ellis, chief scientific adviser to BAT, seeking to play down the risks.¹⁰¹ Indeed, the US companies chose to do some of their more sensitive work in Europe, such as at the laboratory adjacent to the Philip Morris factory in Neuchätel, Switzerland and the INBIFO laboratory in Cologne.

In recent times sections of the tobacco industry have tried to improve their image, most notably Philip Morris in the US has sought to embrace ‘reasonable regulation’.102 However, the public health community has been sceptical about these overtures and more generally about industry ‘social corporate responsibility’ which it views as a form of marketing. WHO guidelines have even called for such activity to be ‘de-normalised’.¹⁰³

It is often said that the tobacco industry is an important part of the economy and that effective tobacco control would have a serious economic impact. Indeed the need to support tobacco farmers has often given rise to conflicts of interest, not least within Europe where the Commission supports tobacco growers financially whilst seeking to diminish demand for their product. In the US the concerns of tobacco states have often complicated attempts at law reform at the Congressional level. However, this economic importance may be overestimated. Admittedly tobacco taxation in some countries is significant, but its loss is likely to be gradual allowing taxation changes to be implemented. Moreover, the money spent on tobacco will be diverted to other economic activity and so the long run impact should be minimal.¹⁰⁴

Although largely outside the scope of this study it is worth remembering the biggest producer in 1993 was the Chinese monopoly supplying 31 per cent of the global market.¹⁰⁵

F Smokers

There are over one billion smokers in the world today.¹⁰⁶ Once primarily a male pastime smoking is now common to both sexes, although typically still more men than women smoke.¹⁰⁷ In the US and UK smoking became more common amongst women after the First World War and became a symbol of female emancipation and the industry carefully promoted the social acceptability of smoking by women and also its role in weight control.¹⁰⁸ Increasingly youth smoking is more common amongst females and in the developing world females are being lured by sweeter western brands.109

(i) United States

Smoking rates in the US were over 50 per cent for men in the 1950s and 1960s and over 30 per cent for women in the 1960s, but had fallen to less than 20 per cent in 2007¹¹⁰ before rising slightly in 2008.¹¹¹ The Healthy People 2010 agenda called for smoking prevalence to be reduced to 12 per cent. This was achieved in Utah, where religious beliefs discourage smoking, in 2003. California, a populace state, has managed an impressive reduction to 14.3 per cent. Marginally more men than women smoke. Smoking is concentrated in lower socioeconomic groups.¹¹²

It is often cited that four-fifths of US smokers say they want to quit smoking and that 1.3 million do quit each year. Equally claims are made that success rates can be as high as 20–40 per cent with smoking cessation programs. However, often the rates are far lower. One Californian based study showed the assistance with quitting had helped improve success rates from 7.9 per cent in 1986 to 19.9 per cent in 1996.¹¹³

(ii) United Kingdom

The General Household Survey provides details on smoking patterns in the United Kingdom.¹¹⁴ Cigarette smoking fell from 45 per cent of the adult population in 1974 to 35 per cent in 1982 and continued a steady decline to around 26 per cent in 2002, of whom 27 per cent were men and 25 per cent were women. The figure was 22 per cent in 2006 with the government confident of meeting its target of reducing adult smoking rates to 21 per cent or less by 2010.¹¹⁵ One of the positive impacts of the ban on smoking in public places is that it provides a supportive environment for those who wish to stop smoking. In the first year after the introduction of the ban on July 1, 2007 there was both a 23 per cent increase in those setting a quit date with the NHS and a 22 per cent increase in successful quitters. Unless this is a temporary phenomenon, further reductions in smoking levels can be expected. Smoking is more prevalent in Scotland (30 per cent) and the North. It has for a long time been a predominantly working class habit.116 Previously far more men than women smoked. Now amongst the 16–19 age groups more women (29 per cent) than men (22 per cent) are likely to smoke. Two-thirds of smokers started the habit aged below 18 and well over a third started before they were aged 16.

The General Household Survey has consistently shown that cigarette smoking is more prevalent among people in manual occupational groups. In the 1970s and 1980s, the proportion of cigarette smokers in non-manual occupations fell more sharply than that for manual occupations. However, levels for both seem to have levelled out with 20 per cent of non-manual workers smoking cigarettes in 2002, compared with 31 per cent in the manual group. The trend is for smokers to be less heavy smokers with only 10 per cent of men and 6 per cent of women smoking more than 20 a day.

In 2000, 73 per cent of men and 71 per cent of women said they wanted to give up smoking. More heavy than light smokers say they would find it harder to stop smoking for a day; but also more women than men say they would find it hard to give up. This is a little surprising as they tend to be lighter smokers.

(iii) European Union

Within the European Union, Greece (38 per cent) and Germany (34 per cent) have the highest percentage of smokers.¹¹⁷ Some studies estimate the EU average to be as high as 32 per cent, but others differ and the figure may be lower.

(iv) Rest of the World

China is the biggest market for cigarettes in the world. In 1996 it was estimated that there were 300 million males and 20 million females smoking with 1.7 trillion cigarettes produced in China and 900 million imported. The male smoking rates are particularly high with even 54.2 per cent of college educated males smoking; whereas this rises to 72.4 per cent for those having only primary education.¹¹⁸ In India smoking rates as high as 86 per cent amongst men have been recorded with women being far less likely to smoke.¹¹⁹ A similar pattern of heavy prevalence of smoking preponderantly by men (but with increasing women smokers) is found Russia. 120 Indeed, the rise in women smokers is a significant phenomenon globally and in those developing countries where traditionally few women smoked the numbers are likely to increase given the marketing strategy of tobacco companies.¹²¹ Smoking is more common in Eastern than Western Europe. By contrast in Africa smoking rates are as low as 21 per cent and because of poverty the amount consumers smoke is low (480 cigarettes per capita in 1995); meaning that it may still be possible to intervene to prevent the growth of smoking related illnesses.¹²²

(v) Characteristics of Smokers

Attempts have been made to group smokers as:

(a) ‘psychosocial’ i.e. starting during adolescence or as a social prop in adult life;

(b) ‘indulgent’, seeking sensual or sensory rewards;

(c) using it for tranquillisation;

(d) for stimulation; or

(e) simply because they were addicted.¹²³

Studies have shown that whether teenagers took up smoking was based on parental role models and smoking also served as a prop against social or intellectual inadequacy.¹²⁴ For children cigarettes can be seen as a mild, cheap product that served as both a relaxant and stimulant and the darker side of the product was not evident from the experiences of the young.¹²⁵ It is clear that many smokers tend to deny the truth about the consequences of smoking.¹²⁶ Equally in apparent contradiction to that statement most smokers want to give up.¹²⁷

G Regulators

The US National Cancer Institute (NCI) is the US Federal Government’s principal agency for cancer research and training. Its Smoking and Health Program in 1968 dealt with epidemiological studies, raising public awareness, pressing the case for legislation to reduce smoking and a project to find a ‘less hazardous cigarette’. This latter project was controversial for many thought the industry rather than government should be investing in seeking safer products. The US Surgeon-General issued many important influential reports on the topic of smoking and health which will be referred to below. The work on smoking was undertaken within Health, Education and Welfare’s Clearinghouse on Smoking and Health from 1966 until 1974 when it became a subsection of the Centre for Disease Control. In 1978 it moved back to Washington and became the Office on Smoking and Health where it remains as a division of the federal Centre for Chronic Disease Prevention and Health Promotion. The role of the US government has, until very recently been restricted to research and information about the risks of smoking. Whilst the Federal Communications Commission has successfully regulated television commercials for tobacco products128 the Federal Trade Commission has had more mixed results.¹²⁹ The Food and Drug Administration had not been allowed to regulate tobacco until the passing of the FSPTCA.¹³⁰ It has now established the Centre for Tobacco Products.

Two state officers, Surgeon-General Koop and FDA Commissioner David Kessler became associated with the anti-tobacco movement and their views were seen as crucial during settlement negotiations with the industry in the litigation of the 1990s.¹³¹ Politically Ted Kennedy was influential on the public health agenda in the Senate as were representatives Synar and Waxman in the Congress.

In the UK in 1973 the Independent Scientific Committee on Smoking and Health (ISCSH) was established to look at ways of modifying products and assessing ‘lower risk’ cigarettes. It published four reports. There was also a complementary Department of Health Committee for Research in Behavioural Aspects of Smoking and Health (CRISBASH). In 1994 the Department of Health appointed a Scientific Committee on Tobacco and Health (SCOTH) along with a Technical Advisory Group. Advertising has been regulated by self-regulatory rules.

Across Europe the member states had very different ways of regulating tobacco. In those states where the state had owned tobacco monopolies there was said to be a close cooperation between state and industry even after the state sold its shares. Germany has taken a noticeably lax approach to tobacco regulation.¹³² By contrast, the Nordic states have been strict. The Finnish regulator¹³³ has been particularly active even if Finland has been embarrassed by being taken to the European Court of Justice for failing to prohibit the marketing of tobacco for oral use in the autonomous Aaland archipelago.134 The EU has a section dealing with tobacco housed within the Public Health division of DG SANCO and has viewed this work as part of its Europe Against Cancer Program.

A typical criticism of government engagement with tobacco is that it has been piecemeal with sections being responsible for public health not always being linked up with those regulating the product and its promotion. These streams seems to be most obviously brought together within the EU, but nationally in the UK there has been an emphasis on more joined up government and a coherent tobacco policy. In the US regulation remains patchwork, but that is less to do with the structures and more to do with US dislike of regulation and should improve with the FDA acquiring jurisdiction. Nevertheless the position does vary from state to state, although the federal government tries to promote good practice.¹³⁵

H Public Health NGOs

As the mounting knowledge of smoking risks grew in the 1950s there were still no organised anti-smoking public health pressure groups.¹³⁶ During the 1960s there were other more immediate social issues and few people wanted to take on the tobacco industry as this meant challenging the daily habit of half the nation. Pressure groups in the US like the American Heart Association, American Lung Association and especially the American Cancer Society, were beginning to deal with the issue,¹³⁷ but had taken a long time to come round to addressing the issue out of fear of alienating their smoking members. The American Medical Association (AMA) stood on the sideline as it needed the support of tobacco states to resist attempts to extend socialised medicine. There was also a feeling amongst some that it should be for individual physicians to use their judgment and advise patients. Indeed in 1965 the AMA accepted a $10,000,000 grant to study smoking, which helped perpetuate the feeling that the issues were still alive.138 In 1978 it produced a mealy-mouthed report on Tobacco and Health.

In 1964 an Interagency Council on Smoking and Health was established of public and private health groups, but it lacked resources and influence. A few politicians expressed an interest in the issue, but it took some time for the issue to become popularised. Ultimately though, medical and consumer/public health organisations were to play an important role in bringing the message of the health risks of smoking and justifications for regulation to the public.¹³⁹

John Banzhaf came to prominence when he lobbied for the FCC to require airtime to counter the effect of smoking advertisements under its ‘fairness’ doctrine. He successfully ensured the FCC ruling was not overturned in the courts and went on to monitor industry compliance. He founded Action on Smoking and Health (ASH) and lobbied for separate smoking and non-smoking sections on planes.¹⁴⁰ Ralph Nadar also had some input. But in 1978 the anti-smoking lobby was still described as ‘minimal and symbolic’.¹⁴¹ Banzhaf’s ASH organisation continues to exist, but is very much centred around the personality of Banzhaf. ASH in the US is not the mainstream voice of the tobacco movement to the same extent as its UK namesake.

A new wave of vocal anti-tobacco activists emerged in the US in 1980s. Alan Blum founded Doctors Ought to Care (DOC) and when he became editor of the New York State Journal of Medicine devoted the entire December 1983 issue to ‘The World Cigarette Pandemic’ with a further special issue on the subject in 1985.¹⁴² The more conservative campaigner, Elisabeth Whelan, had a significant impact with her monograph, A Smoking Gun: How the Tobacco Industry Gets Away with Murder.¹⁴³

The anti-tobacco movement in the US has been characterised as secular and based on scientific and technological knowledge.¹⁴⁴ Indeed prior to the 1970s it was dominated in the US by elite public health activists; but then there appeared on the scene effective anti-tobacco local groups campaigning against Environmental Tobacco Smoke (ETS) that attracted more grassroots community support. Known as GASP (Group Against Smoking Pollution), until at least in California they changed their name in 1981 to Californians for Non-smokers’ Rights (CNR), they succeeded in passing local laws restricting smoking in public indoor buildings and for separate non-smoking areas in restaurants and workplaces. This movement was helped by the fact they were not seeking to stop anyone from smoking, but simply wanted the freedom for others not to be affected by others exercising the liberty to smoke. Stanton Glantz was the movement’s leader in California, but then it passed to Mark Pertschuk, the son of the former Federal Trade Commissioner and Julia Carol. CNR became a national movement to support the moves for local laws following the Surgeon-General’s Report in 1986 on The Health Consequences of Involuntary Smoking.

Another hotbed of activity for non-smoker’s rights was Massachusetts where it was led by Ed Sweda. In Boston, Professor Richard Daynard also operated out of Northeastern University and saw product liability as a more effective weapon against the industry. He had been Massachusetts’s GASP Director and drafted workplace control law in Newton, but foresaw a long road in enacting one for each of the 350 municipalities. He proposed a litigation model based on the asbestos litigation. His policy was to challenge pre-emption of common law suits; undermine the assumption of risk defences by pointing to the addictive nature of the product; and undercut defences based on warnings by pointing to the inadequate warnings before federal labelling requirements and how the industry had subsequently acted to reduce the impact of warnings. He has not brought cases himself, but provided information through the Tobacco Products Litigation Reporter and advised trial lawyers. In admiration Ralph Nadar is reported to have admitted ‘We gave up too soon’.145

The big three health organisations, American Cancer Society (ACS), American Heart Association (AHA) and American Lung Association (ALA) finally came together to form a Coalition on Smoking or Health in 1981 following a successful National Conference on Smoking or Health in New York.¹⁴⁶ Prior to this there had been little will to crusade politically, but a change on tax laws in 1976 that allowed organisations to have safe harbour funds for lobbying without losing tax exemption helped in part.

Today the largest anti-smoking organisation in the US is the Campaign for Tobacco Free Kids, which participated in the negotiations between the lawyers and the industry that led to the global settlement.¹⁴⁷ Its participation, however, caused antagonism between itself and many in the movement that objected to any deal with the ‘devil’. Pertschuk provides a telling insight into the leadership of the tobacco movement, including NGO and government regulators and suggests that it was blessed with many charismatic leaders, but that there were perhaps too many conflicting egos for it to work effectively as a cohesive unit.¹⁴⁸ Another study suggests that the anti-smoking NGOs were able to build on the infrastructure of the ‘health’ organisations and had close links with government, described as ‘state-movement interpenetration’, which allowed influence but also constrained activity.149 Perhaps this explains the efforts being focused on advertising and labelling, youth targeting and second-hand smoke where a political consensus could be achieved for action as opposed to more intrusive powers to regulate the composition of cigarettes.

In the UK the general medical community was less engaged than their US counterparts in the tobacco and public health debate until the 1960s when the Royal College of Physicians published influential reports: a tradition that is maintained today. Some members of the College established Action on Smoking and Health (ASH) in 1971 with the benefit of a £125,000 grant from Keith Joseph, the Minister for Health.¹⁵⁰ This organisation shares the same name as its US counterpart, but has quite distinct origins and has become the dominant anti-tobacco voice in the UK. In France, doctors played a prominent role in the anti-tobacco movement.¹⁵¹ In Germany the anti-tobacco movement is rather weak.¹⁵² There are European-wide organisations such as the European Network for Smoking Prevention, the European Respiratory Society and the European Lung Foundation. The Bureau for Action on Smoking Prevention (BASP) closed in 1995 when it ceased to receive funding from the EU Commission.¹⁵³

I(i) Health Effects of Smoking

Smoking must be a pleasurable activity or else so many people would not risk their life for the experience. Certainly some smokers feel a sense of identity as part of a group of smokers, but more concrete positive benefits have also been claimed such as enhancing the smoker’s mental performance and reducing anxiety. Indeed smoking is both a stimulant and a relaxant (known as Nesbitt’s Paradox) and can be a sensuous experience. Its function as an appetite depressant has been exploited when promoting smoking to women. It has also been linked to some positive health effects. Thus, Sir Richard Doll one of the main opponents of smoking has suggested it might reduce risk of Parkinson’s disease by 20–50 per cent, endometrial cancer by 50 per cent and ulcerative colitis by 20 per cent.154 However, he noted the number of lives saved by smoking due to these positive effects is between 1,000 and 2,000 a year – far less than the deaths caused by smoking.¹⁵⁵

Tobacco has not had a clean bill of health for most of its history. As early as 1604 King James 1 of England in his ‘counterblaste to tobacco’ described tobacco smoking as ‘a custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lung, and the black stinking fume thereof, nearest resembling the horribly Stygian smoke of the pit that is bottomless’.

Although some health concerns were expressed during the eighteenth and nineteenth centuries, most prominently in The Lancet in 1856–57, much of the condemnation was more moral than medical in tone and the prevailing view was said to be that smoking in moderation was safe.¹⁵⁶ Later in the nineteenth century there was more scientific concern about smoking, notably Langley and Dickinson’s 1889 study on the effects of nicotine.¹⁵⁷ In the early part of the twentieth century journals were beginning to suggest that smoking was dangerous and cigarettes were particularly dangerous. The renowned geneticist Luther Burbank wrote that cigarettes were ‘nothing more or less than a slow but sure form of lingering suicide’.¹⁵⁸ Nevertheless, in 1929 Hygeia declared the ‘general opinion of those who have studied the subject if that a person in sound health may bear what are for him moderate doses without injury’.¹⁵⁹

It is estimated that smoking killed 315,120 Americans in 1984¹⁶⁰ rising to 440,000 annually in the 1990s (accounting for one in five deaths)¹⁶¹ and has remained constant at around that level – for despite reductions in smoking there has been population growth especially amongst the older population that had in their youth been smokers.162 The smoking attributed annual mortality figure for the UK is 120,000¹⁶³ – 87,000 in England alone.¹⁶⁴ If current patterns of smoking continue it has been projected that annual tobacco deaths globally will increase from three million in the early 1990s to ten million in the late 2020s.¹⁶⁵ The main risks of smoking are lung cancer and heart disease, but it is also linked with chronic obstructive pulmonary disease, emphysema, chronic bronchitis, bladder cancer, cerebrovascular disease, oesophageal cancer, kidney cancer, laryngeal cancer, oral cancer, pancreatic cancer, peptic ulcer disease, cataracts, low bone density in postmenopausal women, reduced fertility, adverse reproductive outcomes, including pre-mature rupture of the membranes, placenta previa, placental abruption, preterm delivery and shortened gestation, foetal growth restriction, low birth weight, acute myeloid leukaemia, stomach cancer, uterine and cervical cancer, liver cancer and generally diminished health status.¹⁶⁶ Cigarette smoke contains 40 carcinogenic materials in at least trace quantities.¹⁶⁷

Our brief survey will focus on research into lung cancer and heart disease.¹⁶⁸ Lung cancer kills 160,000 Americans each year, and 90 per cent of all lung cancer cases are caused by cigarette smoking.¹⁶⁹ However, the impact from heart disease due to smoking is numerically much greater as it is a far more common disease. A UK study of more than 10,000 survivors from heart attacks showed that smokers in their thirties and forties have five times as many heart attacks as non-smokers.¹⁷⁰ The British Regional Heart Study found that men who have never smoked have a 78 per cent chance of reaching 73 years of age whereas those who start smoking by the age of 20 and never stop have only a 42 per cent chance.¹⁷¹