Commentary
The global tobacco litigation initiative: An effort to protect developing countries from big tobacco Mohammed Al-hamdani Saint Mary’s University, 923 Robie Street, Halifax, NS, Canada B3H 3C3.
Abstract
The tobacco industry faces challenges in the affluent world, but preys upon poor and populous countries, taking advantage of underdeveloped tobacco policies. One of the ways to address tobacco control globally is to create a tobacco litigation partnership between developed and developing countries. A global litigation partnership has the potential to alleviate concerns over weak tobacco control structures in developing countries and benefit developed countries in monetary as well as legislative ways. Journal of Public Health Policy (2014) 35, 162–170. doi:10.1057/jphp.2014.4; published online 27 February 2014 Keywords: tobacco litigation; developing countries; developed countries
Background In developed countries, tobacco control policies have advanced on many fronts. These policies have three targets: tobacco users, tobacco companies, and tobacco vendors. Measures that target tobacco users include: ● ● ●
price increases;1 workplace bans;2 and smoking prohibitions in public areas.3
Restrictions on tobacco companies include: ● ● ● ●
advertisement prohibitions;4 regulations for minimum pack size;5 pack design and labelling requirements;6 and policies that restrict the provision of tobacco funds to universities.7
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170 www.palgrave-journals.com/jphp/
Global tobacco litigation
On the supply side, tobacco control policies: ● ●
restrict point of sale marketing8, and require compliance with prohibition of sales of cigarettes to minors.9
Regulatory restrictions, combined with proactive measures such as social marketing campaigns, use of pharmacotherapy, encouragement of counselling, exposure of unethical practices of the tobacco industry, and tobacco litigation, have resulted in a hostile environment against the tobacco industry in developed countries.10–13 In the face of the challenges experienced in developed countries, tobacco companies resort to numerous defence strategies of two types: political and marketing strategies. Political strategies include evidence falsification campaigns aimed at preserving a favourable corporate image of the tobacco industry, as in denying the link between smoking and lung cancer, as well as the harms of second-hand smoke.12 Tobacco companies fund academic institutions in attempts to halt research findings that damage their reputations as in evidence related to harms of second-hand smoke,12,14 and organize groups to undermine tobacco legislation.12 To protect its corporate image, the tobacco industry launches comprehensive corporate social responsibility programs including corporate donations.12 Finally, the tobacco industry pays expert witnesses beyond simple compensation to defend Big Tobacco against plaintiff claims in court.15,16 The tobacco industry uses pack design in its marketing strategies: deceptive text descriptors (for example, ‘light’ versus regular brands) and colours (for example, ‘white’ versus red) to indicate ‘lower constituent content’.17 They offer misleading nicotine, tar, and carbon monoxide emission information on cigarette packs – machine readings that do not reflect the true delivery of toxic contents to humans.18 They sell demographic-specific products such as slim packs to resonate with women’s body image perceptions.20 The industry has also diversified its products, by, for example, acquiring e-cigarettes companies.19 Comprehensive tobacco control strategies in developed countries impede tobacco industry efforts to maximize its profits. Recognizing this issue, transnational companies became pioneers in strategic geographical repositioning by focusing more on developing world markets, especially consumption of tobacco by youth and women.21 Local tobacco companies in developing countries, largely separate from US
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
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companies, help increase in tobacco sales to developing world populations. Smokers in developing countries consume 70 per cent of the world’s tobacco.22 Because of free trade and foreign investments, tobacco consumption in developing countries is expected to grow.21,23,24 It will not be a global public health success to reduce tobacco sales in developed countries – if at the same time the tobacco industry is able to exploit developing countries to achieve higher tobacco sales volumes. To build a strong global tobacco control effort, developing countries need to extract lessons from the litigation experiences of developed countries. Embracing a developed country litigation model could strengthen current tobacco control measures in developing countries. These countries would offer less profitable markets for the tobacco industry. A global tobacco litigation effort could achieve a public health success for three reasons: (i) increasing tobacco litigation efforts in developing countries would threaten survival of the global tobacco industry; (ii) litigation in developing countries would benefit both developing and developed countries by making tobacco control global; and (iii) tobacco litigation might drive other tobacco control policies and prevent the tobacco industry from exploiting developing country markets to sustain profits.
Tobacco Litigation versus Other Policy Options Tobacco litigation demands sizable monetary awards from the tobacco industry, especially when undertaken by governments.25 Smoke-free policies, advertising bans, and taxation are control measures to reduce smoking rates. Smoke-free policies de-normalize smoking behaviour and reduce smoking rates.26–28 Advertising bans effectively reduce smoking rates by limiting environmental cues that trigger smoking.29 Taxation can reduce smoking rates and has desirable economic returns to governments.29 Compared with smoke-free policies and advertisement bans, tobacco litigation may be more costly to the industry. Litigation threatens the tobacco industry with hefty legal defence costs. Unlike taxation, tobacco litigation can disclose wrongdoings by the tobacco industry when courts require companies to turn over internal industry documents to the plaintifs.30 Tobacco litigation is unique as compared with the three other policies, because it leads to settlements that expand beyond money to affect tobacco control policies such as advertising and sales
164
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bans.31 In this sense, tobacco litigation drives other policies. If developing countries were to adopt tobacco litigation strategies in use in developed countries, they might yield high financial rewards, drive other policies, threaten the survival of the tobacco industry, and tarnish its corporate image. Thus, tobacco litigation is an ideal tobacco control strategy to deter the tobacco industry from focusing on developing countries as profitable markets.
Learning from the United States US tobacco litigation constitutes a model for the world. It began in 1954, when injured smokers and their families sued the tobacco industry for negligence and its failure to warn smokers about the harms of cigarettes and other tobacco products.25,32 These lawsuits continued until 1990, but benefits to public health were modest–increased public awareness of harm caused by cigarettes and the tobacco industry. The tobacco industry’s defence succeeded, using high-paid lawyers and a ‘scorched earth’ strategy (a fight until nothing is left behind) – costing most plaintiffs so much that they withdrew their suits.25 In the 1990s, lawyers for the injured parties switched from individualbased lawsuits to class actions and suits by state government.25 These large lawsuits achieved increased public awareness about the harms of tobacco and the addictiveness of nicotine. They finally forced the tobacco industry to enter into the Master Settlement Agreement (MSA) with state governments.25 In the MSA, the industry agreed to pay over US$206 billion,33 or an average of $8 billion per year for 25 years. The MSA requires companies to make annual payments to the state governments. It enforces advertising bans on tobacco.
Building the Global Tobacco Litigation Partnership The MSA has generated opposing views. Some find it inappropriate because it involves an agreement with the tobacco industry plus it does not significantly benefit tobacco control, as most of the funds are used by governments for non-health initiatives.34 Others approve of the dedicated amount paid to governments annually, and are pleased to hold the tobacco industry accountable for their health and social damages.34
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Although the MSA payment of $8 billion in the United States does not constitute a major loss for the tobacco industry, a global MSA, based on government lawsuits in 150 countries, would surely threaten survival of the tobacco industry. Tobacco control measures stemming from tobacco litigation would offer additional public health benefits and further threaten the industry. A global litigation initiative would help public health in both developing and developed countries, by: ●
●
●
●
●
●
allowing developing countries to create agreements on advertising, sales to minors, plus indoor and outdoor smoking bans; threatening the financial well-being of the tobacco industry with costs associated with a global settlement agreement; playing reducing tobacco-related morbidity and mortality rates in developing countries (as has happened in the United States following the MSA); opening an option to dedicate a portion of settlements from developing countries to developed countries in exchange for their contribution of resources, training, and expertise transfer; attenuating the global strength of the tobacco industry and reducing its resources. This translates into less ability of the tobacco industry to undermine tobacco control legislation in developed countries; and preventing the tobacco industry from preying on developing countries by defeating tobacco control restrictions that de-normalize smoking in these countries and subsequently reduce tobacco sales.
How can tobacco litigation and settlement agreements move forward in developing countries in collaboration with developed countries? Here I suggest steps to initiate aggressive tobacco litigation in developing countries: ●
166
Create a resource pool for the collaboration: The project can be funded using a combination of government grants and NGO fund raising. Collaboration can maximize total funds and ensure involvement of NGOs with a mandate for improving lung health, reducing tobacco use, or reducing cancer rates. No funds should be accepted from any NGO that has any affiliation with the tobacco industry in any form, including an NGO with previous tobacco industry funding or tobacco investments. This requirement will avoid conflict of interest and prevent the involvement of the industry in the
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
Global tobacco litigation
●
●
●
●
●
collaboration. Seeking funds in the community creates community participation, a way of building capacity and engaging the public in the collaboration. Lawyers can volunteer some of their time as an inkind contribution to the collaboration. Synthesize best practices in a toolkit based on the US litigation that outlines strategies for success in litigation. Litigators in the United States, for example, learned that large claims based on recovering health-care expenditures are more effective than small-scale claims based on negligence and failure to warn.25 Small claims were useful as a starting point for increasing awareness of the need to hold the tobacco industry accountable for health damages. They set the basis for larger claims.25 How to move from small claims to larger-scale claims should be detailed for developing countries. US litigators also learned that a settlement with the tobacco industry can extend beyond monetary benefits to recover health care expenditures and include restrictions on advertising. In litigation, the discovery process can expose internal industry documents.25,34 A detailed description of potential policy restrictions that can be incorporated within a settlement can maximize litigation outcomes in developing countries. Partner developed and developing countries to target tobacco litigation in developing countries: A collaboration between developed and developing countries needs to involve a coalition of legal, health, and advocacy bodies. For each coalition arm, developing countries can analyse the barriers and opportunities for tobacco litigation in their countries and synthesize the knowledge for lawyers in developed countries. The latter may offer suggestions on the next steps moving forward with litigation. Develop a communication plan to move forward, executing best practices in tobacco litigation in developing countries. Specific contacts in developing and developed countries are important to ensure that the litigation efforts are well executed. Conduct training workshops for lawyers in developing countries. US lawyers will have had the most experience in tobacco litigation. Such training constitutes a long-term professional benefit for developing countries. Offer resources: Knowledge support and tobacco litigation resources from developed countries might be transferred through an online platform to guide lawyers in developing countries in the pleading, pre-trial, trial, and post-trial stages of tobacco litigation.
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
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At least five important circumstances may impede a global litigation initiative. ●
●
●
●
●
Tobacco friendly government officials can delay or hinder the enrolment of their countries in the initiative. The tobacco industry is likely to launch campaigns in developing countries against a global tobacco litigation initiative. They may, for example, warn – untruthfully – that taxpayers’ money will be spent for lawsuits. The industry has lied in the past to resist the introduction of tobacco control policies. They deliberately misstated the risks of second-hand smoke,36 to resist indoor smoking bans. The tobacco industry, by a show of massive legal and financial resources, may attempt to intimidate developing countries that possess many fewer resources to battle the tobacco industry in court. Where tobacco use is relatively normalized, it is difficult to gain public support for such initiatives. Most recently big tobacco owns several non-tobacco organizations, including blu, a previously independent e-cigarette company, which is now owned by Lorillard.35 Such companies can benefit the tobacco industry in terms of survival, but do not change the fact that tobacco litigation awards might make the whole smoking business unprofitable.
To overcome barriers to a global tobacco litigation initiative, governments must be urged to join the initiative because of its potential monetary and health benefits. Campaigns demonstrating wrongdoings of the tobacco industry can increase public acceptance tobacco litigation. Increasing tobacco litigation resources of developing countries can hold off industry efforts to intimidate governments, thus I urge a developing– developed government partnership for global tobacco litigation. Finally, it is necessary to increase global awareness of the value of tobacco litigation in preventing the tobacco industry from preying on developing countries for tobacco profits.
Conclusion An ideal public health victory is one where the tobacco industry is weakened globally. Tobacco litigation is an aggressive approach that has potential for deterring the tobacco industry from preying on developing countries for profits. A litigation partnership between developing and
168
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
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developed countries offers benefits for both and represents a serious step toward the demise of the tobacco industry.
About the Author Mohammed Al-hamdani, MHA, a PhD student in Industrial/Organizational Psychology at Saint Mary’s University, is a member of the Coalition for a Smoke-Free Nova Scotia. He leads a student-based research society at Saint Mary’s University.
References 1. Peterson, D.E., Zeger, S.L., Remington, P.L. and Anderson, H.A. (1992) The effect of state cigarette tax increases on cigarette sales, 1955 to 1988. American Journal of Public Health 82(1): 94–96. 2. Farrelly, M.C., Evans, W.N. and Sfekas, A.E. (1999) The impact of workplace smoking bans: Results from a national survey. Tobacco Control 8(3): 272–277. 3. Wakefield, M.A., Chaloupka, F.J., Kaufman, N.J., Orleans, C.T., Barker, D.C. and Ruel, E.E. (2000) Effect of restrictions on smoking at home, at school, and in public places on teenage smoking: Cross sectional study. British Medical Journal 321(7257): 333–337. 4. Laugesen, M. (1992) Tobacco advertising bans cut smoking. British Journal of Addiction 87(7): 965–966. 5. Deyton, L., Sharfstein, J. and Hamburg, M. (2010) Tobacco product regulation – A public health approach. New England Journal of Medicine 362(19): 1753–1756. 6. Hammond, D. (2011) Health warning messages on tobacco products: A review. Tobacco Control 20(5): 327–337. 7. Cohen, J.E. (2001) Universities and tobacco money. British Medical Journal 323(7303): 1–2. 8. McNeill, A. et al (2011) Evaluation of the removal of point-of-sale tobacco displays in Ireland. Tobacco Control 20(2): 137–143. 9. Cummings, K.M., Saunders-Martin, T., Clarke, H. and Perla, J. (1996) Monitoring vendor compliance with tobacco sales laws: Payment vs no payment approaches. American Journal of Public Health 86(5): 750–751. 10. Eisenberg, M.J. et al (2008) Pharmacotherapies for smoking cessation: A meta-analysis of randomized controlled trials. Canadian Medical Association Journal 179(2): 135–144. 11. Mottillo, S. et al (2009) Behavioural interventions for smoking cessation: A meta-analysis of randomized controlled trials. European Heart Journal 30(6): 718–730. 12. Proctor, R.N. (2012) Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition. Berkley, LA: University of California Press. 13. Stead, M., Gordon, R., Angus, K. and McDermott, L. (2007) A systematic review of social marketing effectiveness. Health Education 107(2): 126–191. 14. Kaufman, P.E. et al (2004) Tobacco industry links to faculties of medicine in Canada. Canadian Journal of Public Health 95(3): 205–208. 15. Hiilamo, H.T. (2007) The impact of strategic funding by the tobacco industry of medical expert witnesses appearing for the defence in the Aho Finnish product liability case. Addiction 102(6): 979–988.
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16. Spurgeon, D. (2002) Canadian universities links to tobacco industry shown. British Medical Journal 325(7367): 734. 17. Pollay, R.W. and Dewhirst, T.C.I. (2002) The dark side of marketing seemingly ‘Light’ cigarettes: Successful images and failed fact. Tobacco Control 11(suppl 1): i18–i31. 18. Hammond, D., Collishaw, N.E. and Callard, C. (2006) Secret science: Tobacco industry research on smoking behaviour and cigarette toxicity. The Lancet 367(9512): 781–787. 19. Pearson, J.L., Richardson, A., Niaura, R.S., Vallone, D.M. and Abrams, D.B. (2012) E-cigarette awareness, use, and harm perceptions in US adults. American Journal of Public Health 102(9): 1758–1766. 20. Hammond, D., Doxey, J., Daniel, S. and Bansal-Travers, M. (2011) Impact of female-oriented cigarette packaging in the United States. Nicotine and Tobacco Research 13(7): 579–588. 21. Beaglehole, R. and Yach, D. (2003) Globalisation and the prevention and control of noncommunicable disease: The neglected chronic diseases of adults. The Lancet 362(9387): 903–908. 22. World Health Organization. (2013) Trade, foreign policy, diplomacy and health, http://www. who.int/trade/glossary/story089/en/, accessed 20 November 2013. 23. Stuckler, D., McKee, M., Ebrahim, S. and Basu, S. (2012) Manufacturing epidemics: The role of global producers in increased consumption of unhealthy commodities including processed foods, alcohol, and tobacco. PLoS Medicine 9(6): e1001235. 24. Abdullah, A.S.M. and Husten, C.G. (2004) Promotion of smoking cessation in developing countries: A framework for urgent public health interventions. Thorax 9(7): 623–630. 25. Alderman, J. and Daynard, R.A. (2006) Applying lessons from tobacco litigation to obesity lawsuits. American Journal of Preventive Medicine 30(1): 82–88. 26. Fichtenberg, C.M. and Glantz, S.A. (2002) Effect of smoke-free workplaces on smoking behaviour: Systematic review. British Medical Journal 325(7357): 188. 27. Hopkins, D.P., Razi, S., Leeks, K.D., Priya Kalra, G., Chattopadhyay, S.K. and Soler, R.E. (2010) Smokefree policies to reduce tobacco use: A systematic review. American Journal of Preventive Medicine 38(2): S275–S289. 28. Levy, D.T., Chaloupka, F. and Gitchell, J. (2004) The effects of tobacco control policies on smoking rates: A tobacco control scorecard. Journal of Public Health Management and Practice 10(4): 338–353. 29. Ranson, M.K., Jha, P., Chaloupka, F. and Nguyen, S. (2002) Global and regional estimates of the effectiveness and cost-effectiveness of price increases and other tobacco control policies. Nicotine and Tobacco Research 4(3): 311–319. 30. Daynard, R.A., Bates, C. and Francey, N. (2000) Tobacco litigation worldwide. British Medical Journal 320(7227): 111. 31. Posner, E.A. (2003) Tobacco regulation or litigation? The University of Chicago Law Review 70(3): 1141–1157. 32. Kelder, G.E. and Daynard, R.A. (1997) Judicial approaches to tobacco control: The third wave of tobacco litigation as a tobacco control mechanism. Journal of Social Issues 53(1): 169–186. 33. Warner, K.E. (2002) What’s a cigarette company to do? American Journal of Public Health 92(6): 897–900. 34. Schroeder, S. A. (2004) Tobacco control in the wake of the 1998 Master Settlement Agreement. New England Journal of Medicine 350(3): 293–301. 35. Peeters, S. and Gilmore, A.B. (2013) Transnational tobacco company interests in smokeless tobacco in Europe: Analysis of internal industry documents and contemporary industry materials. PLoS Medicine 10(9): e1001506. 36. Ong, E.K. and Glantz, S.A. (2000) Tobacco industry efforts subverting International Agency for Research on Cancer’s second-hand smoke study. The Lancet 355(9211): 1253–1259.
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The global tobacco litigation initiative: An effort to protect developing countries from big tobacco Mohammed Al-hamdani Saint Mary’s University, 923 Robie Street, Halifax, NS, Canada B3H 3C3.
Abstract
The tobacco industry faces challenges in the affluent world, but preys upon poor and populous countries, taking advantage of underdeveloped tobacco policies. One of the ways to address tobacco control globally is to create a tobacco litigation partnership between developed and developing countries. A global litigation partnership has the potential to alleviate concerns over weak tobacco control structures in developing countries and benefit developed countries in monetary as well as legislative ways. Journal of Public Health Policy (2014) 35, 162–170. doi:10.1057/jphp.2014.4; published online 27 February 2014 Keywords: tobacco litigation; developing countries; developed countries
Background In developed countries, tobacco control policies have advanced on many fronts. These policies have three targets: tobacco users, tobacco companies, and tobacco vendors. Measures that target tobacco users include: ● ● ●
price increases;1 workplace bans;2 and smoking prohibitions in public areas.3
Restrictions on tobacco companies include: ● ● ● ●
advertisement prohibitions;4 regulations for minimum pack size;5 pack design and labelling requirements;6 and policies that restrict the provision of tobacco funds to universities.7
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170 www.palgrave-journals.com/jphp/
Global tobacco litigation
On the supply side, tobacco control policies: ● ●
restrict point of sale marketing8, and require compliance with prohibition of sales of cigarettes to minors.9
Regulatory restrictions, combined with proactive measures such as social marketing campaigns, use of pharmacotherapy, encouragement of counselling, exposure of unethical practices of the tobacco industry, and tobacco litigation, have resulted in a hostile environment against the tobacco industry in developed countries.10–13 In the face of the challenges experienced in developed countries, tobacco companies resort to numerous defence strategies of two types: political and marketing strategies. Political strategies include evidence falsification campaigns aimed at preserving a favourable corporate image of the tobacco industry, as in denying the link between smoking and lung cancer, as well as the harms of second-hand smoke.12 Tobacco companies fund academic institutions in attempts to halt research findings that damage their reputations as in evidence related to harms of second-hand smoke,12,14 and organize groups to undermine tobacco legislation.12 To protect its corporate image, the tobacco industry launches comprehensive corporate social responsibility programs including corporate donations.12 Finally, the tobacco industry pays expert witnesses beyond simple compensation to defend Big Tobacco against plaintiff claims in court.15,16 The tobacco industry uses pack design in its marketing strategies: deceptive text descriptors (for example, ‘light’ versus regular brands) and colours (for example, ‘white’ versus red) to indicate ‘lower constituent content’.17 They offer misleading nicotine, tar, and carbon monoxide emission information on cigarette packs – machine readings that do not reflect the true delivery of toxic contents to humans.18 They sell demographic-specific products such as slim packs to resonate with women’s body image perceptions.20 The industry has also diversified its products, by, for example, acquiring e-cigarettes companies.19 Comprehensive tobacco control strategies in developed countries impede tobacco industry efforts to maximize its profits. Recognizing this issue, transnational companies became pioneers in strategic geographical repositioning by focusing more on developing world markets, especially consumption of tobacco by youth and women.21 Local tobacco companies in developing countries, largely separate from US
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
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companies, help increase in tobacco sales to developing world populations. Smokers in developing countries consume 70 per cent of the world’s tobacco.22 Because of free trade and foreign investments, tobacco consumption in developing countries is expected to grow.21,23,24 It will not be a global public health success to reduce tobacco sales in developed countries – if at the same time the tobacco industry is able to exploit developing countries to achieve higher tobacco sales volumes. To build a strong global tobacco control effort, developing countries need to extract lessons from the litigation experiences of developed countries. Embracing a developed country litigation model could strengthen current tobacco control measures in developing countries. These countries would offer less profitable markets for the tobacco industry. A global tobacco litigation effort could achieve a public health success for three reasons: (i) increasing tobacco litigation efforts in developing countries would threaten survival of the global tobacco industry; (ii) litigation in developing countries would benefit both developing and developed countries by making tobacco control global; and (iii) tobacco litigation might drive other tobacco control policies and prevent the tobacco industry from exploiting developing country markets to sustain profits.
Tobacco Litigation versus Other Policy Options Tobacco litigation demands sizable monetary awards from the tobacco industry, especially when undertaken by governments.25 Smoke-free policies, advertising bans, and taxation are control measures to reduce smoking rates. Smoke-free policies de-normalize smoking behaviour and reduce smoking rates.26–28 Advertising bans effectively reduce smoking rates by limiting environmental cues that trigger smoking.29 Taxation can reduce smoking rates and has desirable economic returns to governments.29 Compared with smoke-free policies and advertisement bans, tobacco litigation may be more costly to the industry. Litigation threatens the tobacco industry with hefty legal defence costs. Unlike taxation, tobacco litigation can disclose wrongdoings by the tobacco industry when courts require companies to turn over internal industry documents to the plaintifs.30 Tobacco litigation is unique as compared with the three other policies, because it leads to settlements that expand beyond money to affect tobacco control policies such as advertising and sales
164
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
Global tobacco litigation
bans.31 In this sense, tobacco litigation drives other policies. If developing countries were to adopt tobacco litigation strategies in use in developed countries, they might yield high financial rewards, drive other policies, threaten the survival of the tobacco industry, and tarnish its corporate image. Thus, tobacco litigation is an ideal tobacco control strategy to deter the tobacco industry from focusing on developing countries as profitable markets.
Learning from the United States US tobacco litigation constitutes a model for the world. It began in 1954, when injured smokers and their families sued the tobacco industry for negligence and its failure to warn smokers about the harms of cigarettes and other tobacco products.25,32 These lawsuits continued until 1990, but benefits to public health were modest–increased public awareness of harm caused by cigarettes and the tobacco industry. The tobacco industry’s defence succeeded, using high-paid lawyers and a ‘scorched earth’ strategy (a fight until nothing is left behind) – costing most plaintiffs so much that they withdrew their suits.25 In the 1990s, lawyers for the injured parties switched from individualbased lawsuits to class actions and suits by state government.25 These large lawsuits achieved increased public awareness about the harms of tobacco and the addictiveness of nicotine. They finally forced the tobacco industry to enter into the Master Settlement Agreement (MSA) with state governments.25 In the MSA, the industry agreed to pay over US$206 billion,33 or an average of $8 billion per year for 25 years. The MSA requires companies to make annual payments to the state governments. It enforces advertising bans on tobacco.
Building the Global Tobacco Litigation Partnership The MSA has generated opposing views. Some find it inappropriate because it involves an agreement with the tobacco industry plus it does not significantly benefit tobacco control, as most of the funds are used by governments for non-health initiatives.34 Others approve of the dedicated amount paid to governments annually, and are pleased to hold the tobacco industry accountable for their health and social damages.34
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Although the MSA payment of $8 billion in the United States does not constitute a major loss for the tobacco industry, a global MSA, based on government lawsuits in 150 countries, would surely threaten survival of the tobacco industry. Tobacco control measures stemming from tobacco litigation would offer additional public health benefits and further threaten the industry. A global litigation initiative would help public health in both developing and developed countries, by: ●
●
●
●
●
●
allowing developing countries to create agreements on advertising, sales to minors, plus indoor and outdoor smoking bans; threatening the financial well-being of the tobacco industry with costs associated with a global settlement agreement; playing reducing tobacco-related morbidity and mortality rates in developing countries (as has happened in the United States following the MSA); opening an option to dedicate a portion of settlements from developing countries to developed countries in exchange for their contribution of resources, training, and expertise transfer; attenuating the global strength of the tobacco industry and reducing its resources. This translates into less ability of the tobacco industry to undermine tobacco control legislation in developed countries; and preventing the tobacco industry from preying on developing countries by defeating tobacco control restrictions that de-normalize smoking in these countries and subsequently reduce tobacco sales.
How can tobacco litigation and settlement agreements move forward in developing countries in collaboration with developed countries? Here I suggest steps to initiate aggressive tobacco litigation in developing countries: ●
166
Create a resource pool for the collaboration: The project can be funded using a combination of government grants and NGO fund raising. Collaboration can maximize total funds and ensure involvement of NGOs with a mandate for improving lung health, reducing tobacco use, or reducing cancer rates. No funds should be accepted from any NGO that has any affiliation with the tobacco industry in any form, including an NGO with previous tobacco industry funding or tobacco investments. This requirement will avoid conflict of interest and prevent the involvement of the industry in the
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
Global tobacco litigation
●
●
●
●
●
collaboration. Seeking funds in the community creates community participation, a way of building capacity and engaging the public in the collaboration. Lawyers can volunteer some of their time as an inkind contribution to the collaboration. Synthesize best practices in a toolkit based on the US litigation that outlines strategies for success in litigation. Litigators in the United States, for example, learned that large claims based on recovering health-care expenditures are more effective than small-scale claims based on negligence and failure to warn.25 Small claims were useful as a starting point for increasing awareness of the need to hold the tobacco industry accountable for health damages. They set the basis for larger claims.25 How to move from small claims to larger-scale claims should be detailed for developing countries. US litigators also learned that a settlement with the tobacco industry can extend beyond monetary benefits to recover health care expenditures and include restrictions on advertising. In litigation, the discovery process can expose internal industry documents.25,34 A detailed description of potential policy restrictions that can be incorporated within a settlement can maximize litigation outcomes in developing countries. Partner developed and developing countries to target tobacco litigation in developing countries: A collaboration between developed and developing countries needs to involve a coalition of legal, health, and advocacy bodies. For each coalition arm, developing countries can analyse the barriers and opportunities for tobacco litigation in their countries and synthesize the knowledge for lawyers in developed countries. The latter may offer suggestions on the next steps moving forward with litigation. Develop a communication plan to move forward, executing best practices in tobacco litigation in developing countries. Specific contacts in developing and developed countries are important to ensure that the litigation efforts are well executed. Conduct training workshops for lawyers in developing countries. US lawyers will have had the most experience in tobacco litigation. Such training constitutes a long-term professional benefit for developing countries. Offer resources: Knowledge support and tobacco litigation resources from developed countries might be transferred through an online platform to guide lawyers in developing countries in the pleading, pre-trial, trial, and post-trial stages of tobacco litigation.
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
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Al-hamdani
At least five important circumstances may impede a global litigation initiative. ●
●
●
●
●
Tobacco friendly government officials can delay or hinder the enrolment of their countries in the initiative. The tobacco industry is likely to launch campaigns in developing countries against a global tobacco litigation initiative. They may, for example, warn – untruthfully – that taxpayers’ money will be spent for lawsuits. The industry has lied in the past to resist the introduction of tobacco control policies. They deliberately misstated the risks of second-hand smoke,36 to resist indoor smoking bans. The tobacco industry, by a show of massive legal and financial resources, may attempt to intimidate developing countries that possess many fewer resources to battle the tobacco industry in court. Where tobacco use is relatively normalized, it is difficult to gain public support for such initiatives. Most recently big tobacco owns several non-tobacco organizations, including blu, a previously independent e-cigarette company, which is now owned by Lorillard.35 Such companies can benefit the tobacco industry in terms of survival, but do not change the fact that tobacco litigation awards might make the whole smoking business unprofitable.
To overcome barriers to a global tobacco litigation initiative, governments must be urged to join the initiative because of its potential monetary and health benefits. Campaigns demonstrating wrongdoings of the tobacco industry can increase public acceptance tobacco litigation. Increasing tobacco litigation resources of developing countries can hold off industry efforts to intimidate governments, thus I urge a developing– developed government partnership for global tobacco litigation. Finally, it is necessary to increase global awareness of the value of tobacco litigation in preventing the tobacco industry from preying on developing countries for tobacco profits.
Conclusion An ideal public health victory is one where the tobacco industry is weakened globally. Tobacco litigation is an aggressive approach that has potential for deterring the tobacco industry from preying on developing countries for profits. A litigation partnership between developing and
168
© 2014 Macmillan Publishers Ltd. 0197-5897 Journal of Public Health Policy Vol. 35, 2, 162–170
Global tobacco litigation
developed countries offers benefits for both and represents a serious step toward the demise of the tobacco industry.
About the Author Mohammed Al-hamdani, MHA, a PhD student in Industrial/Organizational Psychology at Saint Mary’s University, is a member of the Coalition for a Smoke-Free Nova Scotia. He leads a student-based research society at Saint Mary’s University.
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