Law Suits
Brazil Sues Big Tobacco Over Compensation for Tobacco-Related Diseases
The world’s largest tobacco companies, British American Tobacco Plc (BAT) and Philip Morris International (PMI), have until this month to defend themselves in a lawsuit demanding compensation for tobacco-related diseases.
https://www.vapingpost.com/2020/03/24/brazil-sues-big-tobacco-over-compensation-for-tobacco-related-diseases/
Last year, the Brazilian solicitor general’s office sent subpoenas to Souza Cruz Ltda, Philip Morris Brasil Industria e Comercio Ltda and Philip Morris Brasil SA. These tobacco companies, who produce 90% of the cigarettes sold in Brazil, refused to receive them.
The tobacco companies claimed that they are only subsidiaries and that notifications had to be sent directly to their parent companies in the UK and the US. However, the federal judge hearing the case in Porto Alegre, Graziela Bündchen, ruled that these companies are the operational wings of the parent companies and are therefore fully capable of relaying the notifications to their head offices.
To this effect, last month she gave them 30 days to present their defenses. The lawsuit was heralded as historic by groups advocating for reduced tobacco consumption, such as the Alliance to Control Smoking (ACT). “It is very important that international headquarters are also held accountable,” said ACT legal director Adriana Carvalho. “They profit from the business in Brazil and have always exercised power of control over their Brazilian units.”
Big tobacco and loopholes
Meanwhile, a report published in the British Medical Journal’s BMJ Open publication a few months back, had pointed out that the world’s major tobacco companies have adopted subtle techniques, to bypass plain packaging regulations and make their packets more recognizable.
Written by academics at the University of Bath, the report is drawing attention to the fact that the world’s major tobacco companies have adopted subtle marketing techniques in order to replace traditional cigarette branding, which in 2016 was banned across the UK. In fact, one of the MPs who had devised the plain packaging legislation, is urging ministers to review the measure in order to eliminate loopholes as detailed in the report.
The report’s lead author, Dr Karen Evans-Reeves, said the tobacco industry is “engaged in activities that undermined and continue to undermine the legislation.” She added that lawmakers should keep in mind that tobacco companies will always try to find loopholes.
“Major tobacco companies will always try to find a way to market their products. Based on the number of innovations we found in this study, we would encourage all governments considering implementing plain packaging legislation to consider how tobacco companies have adapted to the legislation in other countries and where possible, close any remaining loopholes.”
$26.75M Award in Retrial Over Smoker’s Death More Than Doubles Original Trial Verdict
https://blog.cvn.com/26.75m-verdict-in-tobacco-case-retrial-over-smokers-fatal-cancer-more-than-doubles-original-award
St. Petersburg, FL— A Florida state court jury awarded $26.75 million to the family of a Florida smoker after finding the nation’s two largest tobacco companies responsible for his cancer death. Duignan v. R.J. Reynolds and Philip Morris, 13-010978-CI.
The award includes $2.75 million in compensatory damages handed down last week and $24 million in punitives imposed equally against R.J. Reynolds and Philip Morris Tuesday for the 1992 cancer death of Douglas Duignan.
Duignan, 42 when he died, smoked up to two packs of cigarettes a day for more than 25 years. His family contends Reynolds and Philip Morris’s role in a conspiracy to hide the dangers of cigarettes hooked Duignan to nicotine and caused his fatal cancer.
The award more than doubles the $12 million handed down in a 2015 trial in the case. That verdict was thrown out two years later, however, after the Florida Court of Appeals for the Second District found the trial judge in the case improperly discouraged a jury readback request.
The case is among thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against tobacco companies. The state’s supreme court later decertified the class, but ruled Engle progeny cases may be tried individually. Plaintiffs are entitled to the benefit of the jury’s findings in the original verdict, including the determination that tobacco companies placed a dangerous, addictive product on the market and hid the dangers of smoking.
To be entitled to those findings, however, each plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that was the legal cause of a smoking-related disease.
After Friday’s verdict finding class membership and awarding compensatories, the two-day punitive phase of trial turned on whether harsh financial punishment should be imposed in light of broad changes by the companies, and the industry at-large, over the last two decades.
During Tuesday’s closing statements, Shook Hardy & Bacon’s Kenneth Reilly reminded jurors that the tobacco industry now faced strict oversight by the U.S. Food and Drug Administration, or FDA, while Philip Morris had paid billions of dollars under a settlement with states’ attorneys-general. Meanwhile, he said, the company had gone farther than required in restricting their marketing.
“What message are you guys going to send to the people who are operating the business today and have been for a quarter of a century?” Reilly asked jurors. “They’ve never failed to comply with the FDA requirements. They’ve never failed to comply with the attorneys-general requirements. They’ve never been criticized, and look at all the voluntary things they did.”
Jones Day’s Jack Williams, representing Reynolds, agreed, and argued Reynolds now sent clear messages about smoking’s dangers while spending decades and billions of dollars trying to make a safer cigarette. “Punishing Reynolds now would… be saying that if a company changes and becomes more responsible and tries to do more of the right thing, it’s still… going to get punished,” Williams said.
But Searcy Denney’s James Gustafson argued that none of the changes the companies detailed affected Duignan’s ultimate end.
“Nothing that the defendants brought you… mitigated, or made less severe, what they did to Douglas Duignan,” Gustafson said. “If they don’t get punished for what they did, what does that do to deter others from doing the same thing?”
Mining billionaire Andrew Forrest plotting ‘assault’ on the tobacco industry
Suing big tobacco for the costs of smoking-related illnesses is on the radar of an organisation set up by billionaire iron ore magnate and philanthropist Andrew “Twiggy” Forrest.
http://www.abc.net.au/news/2017-09-30/andrew-forrest-cancer-centre-to-take-on-tobacco-industry/9004204
The $75-million Eliminate Cancer Initiative (ECI), funded by Mr Forrest and wife Nicola, is seeking legal advice on the potential to mount a case seeking billions of dollars in compensation from tobacco companies.
ECI said the potential litigation would likely be based on a landmark Canadian lawsuit where three tobacco companies were ordered to pay more than $15.6 billion in damages to smokers in Quebec.
“What we do need to keep in mind is the impact and cost associated with those smokers who are now coming through the healthcare system,” ECI chief operating officer Bruce Mansfield said.
“We do need to recognise that there is a cost associated with tobacco and therefore an approach that needs to be considered very sensibly is for those industries to actually take some of the burden away from the community and of course the government.”
Mr Forrest said to tackle cancer, smoking must also be tackled because it was the single-greatest cause of preventable death.
“Cancer is the greatest cause of disease burden in Australia and, personally, it has caused the misery of every single generation of Forrests since the premature death of Lord John Forrest in 1918,” Mr Forrest said.
“One hundred million lives will be lost in the next decade — one in six deaths and with a rising incidence by 70 per cent in the next two decades.
“We must erupt change and bring this devastating disease to its knees.”
The potential litigation would be part of a multi-pronged “assault” on the tobacco industry that is also seeking to have major financial institutions cut tobacco companies from their investment portfolios, Mr Forrest’s Minderoo Foundation said.
The Australian Council on Smoking and Health has welcomed the move to put the burden of health costs back on the tobacco industry.
“The biggest impact of a successful legal action would be to hasten the demise of the tobacco industry in Australia,” president Maurice Swanson said.
“We all know that tobacco is expensive in Australia and that’s because we have relatively high taxes and they have been successful at reducing the number of smokers in Australia but those taxes are paid by individual smokers.
“The most compelling reason we’re calling for this sort of action is that taxpayers are the group that picks up the tab for the treatment of smoking caused diseases.
“The tobacco industry itself, the most lethal industry in the world, contributes nothing to compensate governments for the healthcare costs that are incurred by the consumption of their lethal product.”
‘We must hold them to account’
Cancer Council chief executive Sanchia Aranda also applauded the move and explained most governments do not have the finances to go head to head with big tobacco.
“Most countries haven’t gone down this way because the tobacco industry has very deep pockets,” Professor Aranda said.
“The tobacco industry has known for over 50 years that its product kills and yet they continue to manufacture and promote this product and market it to unsuspecting young people worldwide.”
Legal action poised to be announced within days
More than 15,000 Australians are diagnosed with preventable cancers caused by tobacco each year and 12.2 per cent of the population currently smoke.
Professor Aranda has commended the Federal Government for policy measures taken to decrease smoking rates, including tobacco taxes and the introduction of graphic warnings on packaging, but said they do not work for everybody.
“There’s certainly the belief that since graphic warnings and plain packaging that Australians should be well aware of the dangers of smoking but the problem is that tobacco smoke or the nicotine within that is highly addictive and it takes a very short time to become addicted to cigarettes,” Professor Aranda said.
“Even people who’ve given up some years ago in the older generations are facing tobacco-related illnesses — not only cancers but respiratory disease, vascular disease, heart disease — so we see this as the biggest burden of healthcare costs in Australia for the foreseeable future,” she said.
ECI said this concern was why part of their efforts would also look at lobbying for further policy changes such as raising the minimum age to purchase tobacco.
The organisation is expected to make an announcement regarding the potential challenge to the tobacco industry in the coming days.
Swedish snus company sues Norwegian state over neutral packaging
Snus producer Swedish Match is taking the Norwegian state to court as it seeks an injunction to delay neutral packaging.
https://www.thelocal.no/20170925/snus-company-sues-norwegian-state-over-packaging
A change in Norwegian law requiring all tobacco products to be given neutral packaging is set to be tested in court.
That includes snus, a moist powder tobacco product related to dry snuff that is popular in Norway and Sweden. The product is consumed by placing under the upper lip for extended periods.
The law, which came in to effect on July 1st this year, means that packaging of snus, as well as of cigarettes, must now be neutral.
All tobacco companies must introduce neutral packaging on their products by July 1st 2018, the final deadline for doing so after the new law was introduced.
But the Swedish company wants a temporary injunction to be taken out over snus products, reports news agency NTB.
Swedish Match will meet representatives from Norwegian authorities in court on Monday over the issue.
The company claims that the requirement set down by the Norwegian government is in breach of EEC free trade rules, and that the deadline for the new packaging must therefore be delayed until the EEC issue has been resolved by an as-yet undefined trial.
“Regulation that constitutes such a strong intervention as standardised packaging is not in proportion to the possible health risks associated with snus,” Swedish Match spokesperson Patrik Hildingsson told newspaper VG earlier this year.
Norways’s minister for health Bent Høie told the newspaper that he was not surprised by lawsuits from tobacco companies in the wake of the regulation introduced on July 1st.
“They did it in Australia, France and the United Kingdom, and lost everywhere,” Høie told VG.
The general secretary of the Norwegian Cancer Society (Kreftforeningen) said that she was, like Høie, unsurprised at the decision of tobacco companies to pursue legal options.
“This is a well-known tactic used to challenge a political initiative to ensure fewer young people start using snus,” Anne Lise Ryel said in a press statement.
The number of young people smoking has reduced significantly over the last ten years, while the used of snus has increased, according to NTB’s report.
One third of young men and just under a quarter of young women currently used the product, according to the report, while over 10,000 young people start using it each year.
Tobacco Consumption: Going Up in Smoke
In a reassuring move, the Delhi government has warned of legal action against tobacco companies if they violate laws and advertise at outlets selling their products
http://www.indialegallive.com/health-updates/tobacco-consumption-going-up-in-smoke-34241
We all know how tobacco companies sneak in surrogate advertising as they are not allowed to advertise their products. But Philip Morris International (PMI) Inc., the 160-year-old tobacco giant, pushed its top cigarette brands like Marlboro blatantly. It approached small shops and kiosks selling cigarettes and gave them free attractive boards with its advertisement to adorn the front of their shops and paid shopkeepers around Rs 500 as an incentive to break the law. The tobacco major roped in smart, young executives, mainly girls, to gift cigarette packs to youngsters in bars, discos and at parties.
However, after the Cigarettes and other Tobacco Products Act of 2003, which allowed tobacco companies to advertise in shops, was amended, these ads were prohibited. And in mid-August, the Delhi government’s Directorate General of Health Services shot off a stern warning to Philips Morris threatening legal action if it did not remove advertisements from kiosks and other point of sale outlets. The letter asked the company why appropriate punitive action could not be initiated against it and its directors. The letter was sent when the health ministry realised that the tobacco company was violating India’s tobacco control law by advertising at outlets where it was selling its products. It also sent these notices to two other tobacco companies, Indian Tobacco Company Ltd., and Godfrey Philips.
But this was after a series of earlier warnings which were ignored by these tobacco companies. On March 24 this year, the government had told them to get the ads removed. This was largely ignored. Their stand was that the law only stipulated that the ads should not be outside the outlets and did not mention that these could not be carried within the establishments or shops. Last month, the government shot of another letter reiterating the same, but this too was ignored. An internal document of Philip Morris said that the India market had high potential.
Dr SK Arora, additional director, health, Delhi, and also the state tobacco control officer, told India Legal: “In the last three years, we have been constantly writing to tobacco companies like Philips Morris, Indian Tobacco Company and Godfrey Phillips that their ads on posters and billboards were not allowed as they were violating Section 5 of the Cigarettes and other Tobacco Products Act (COTPA-2003). Our teams used to challan vendors who displayed these ads. But they would again put up the ads after we left as they were paid by the tobacco companies.”
Arora added: “So the tobacco companies removed the ads outside the shops, but started putting them inside, arguing that the Act did not mention that they should not be within shops or point of sale counters. Recently, the government clarified there should be no such ads both outside and inside. The tobacco companies are now pleading that they be allowed to advertise within the shop or on counters. We have no fight with these companies as long as cigarettes can be sold legally. But they have to sell them within the legal provisions.”
A source from the health ministry said that as far as Delhi was concerned, most of the ads had now been taken off and if they spotted any new ones, legal action would be initiated. Till the Delhi government carries out its threat of cracking down on violators, it is unlikely they will ever comply with the rules.
This is not the first controversy that PMI has faced. In 2010, the tobacco giant admitted to using child labour at its production facility in Kazakhstan. Human Rights Watch documented 72 cases of children used as forced labour.
India alone has some 100 million smokers. Government data says that tobacco use annually kills over 9,00,000 people. WHO estimates that tobacco-related diseases annually cost India $16 billion. Arora warned: “Tobacco is a leading cause of 40 percent of all cancers, 90 percent of oral cancer, 30 percent of tuberculosis, and 20 percent of diseases like heart attack, diabetes and hypertension apart from other respiratory diseases. While we are rapidly developing curative strategies like setting up huge cancer, diabetics and hypertension clinics, we are not doing enough to work on a preventive strategy to ensure that these diseases do not happen.”
The reach and marketing power of tobacco companies is huge. According to a 2002 study in the American Journal of Public Health, the tobacco industry in the 1990s increasingly sponsored entertainment events in bars and nightclubs where it displayed cigarette brand paraphernalia and advertisements.
Globally, anti-tobacco campaigners have accused PMI of breaking an ethical code when it deliberately targeted new young smokers. Often, cigarettes were given free to those who had just entered the legal age to smoke. The company had earlier aggressively run an advertising campaign in about 50 countries, cleverly targeting the young. Internal documents of the company indicated that those between 18 and 24 years had to be zeroed in. Company executives were specifically told that they must never use the word “promotion or advertising” when they were interacting with sellers or potential users.
In 2013, Germany banned promotional images of Marlboro, saying it encouraged children as young as 14 to start smoking. But other countries did not do so despite the fact that seven anti-tobacco organisations in a report charged that Philip Morris was trying to get a new generation hooked to tobacco. The ads of PMI appealed to teenagers as they used attractive models partying, falling in love, travelling, exploring, being cool and even confused. PMI violated its own ethical code which stated that it would not use images and content that would appeal to minors.
India enacted the national tobacco control law in 2004 before being one of the first countries to ratify WHO’s Framework Convention on Tobacco Control treaty. It contains a raft of anti-smoking provisions, including tobacco taxes, warning labels on cigarette packs and advertising bans. India, thereafter, strengthened the law in line with the provisions of the treaty. It was ultimately signed by 181 countries.
A group of cigarette distributors challenged the law. But in 2013, the Supreme Court ordered that the law be implemented. It said advertisement of tobacco products would attract the younger generation and innocent minds who were not aware of the grave and adverse consequences of consuming it.
Delhi has acted strongly, but what about other states? The central government is supposed to monitor and supervise implementation of the Act all over India. Had it done that, all states would have cracked down on tobacco companies the way Delhi has done.
The Tobacco Control Programme has the infrastructure and manpower, but lacks commitment to crack down on the tobacco lobby. An anti-tobacco activist said these companies used to set aside a budget to ensure that monitoring officials were well-inclined towards them.
It is time to act before matters go up in smoke.
Threats, bullying, lawsuits: tobacco industry’s dirty war for the African market
Revealed: In pursuit of growth in Africa, British American Tobacco and others use intimidatory tactics to attempt to suppress health warnings and regulation
https://www.theguardian.com/world/2017/jul/12/big-tobacco-dirty-war-africa-market
British American Tobacco (BAT) and other multinational tobacco firms have threatened governments in at least eight countries in Africa demanding they axe or dilute the kind of protections that have saved millions of lives in the west, a Guardian investigation has found.
BAT, one of the world’s leading cigarette manufacturers, is fighting through the courts to try to block the Kenyan and Ugandan governments’ attempts to bring in regulations to limit the harm caused by smoking. The giant tobacco firms hope to boost their markets in Africa, which has a fast-growing young and increasingly prosperous population.
In one undisclosed court document in Kenya, seen by the Guardian, BAT’s lawyers demand the country’s high court “quash in its entirety” a package of anti-smoking regulations and rails against what it calls a “capricious” tax plan. The case is now before the supreme court after BAT Kenya lost in the high court and the appeal court. A ruling is expected as early as next month.
BAT in Uganda asserts in another document that the government’s Tobacco Control Act is “inconsistent with and in contravention of the constitution”.
The Guardian has also seen letters, including three by BAT, sent to the governments of Uganda, Namibia, Togo, Gabon, Democratic Republic of Congo, Ethiopia and Burkina Faso revealing the intimidatory tactics that tobacco companies are using, accusing governments of breaching their own laws and international trade agreements and warning of damage to the economy.
Extract – court document
“The Regulations are unlawful in their entirety as a result of procedural impropriety … The warning requirements [on cigarette packets] constitute an unjustifiable barrier to international trade.”
A petition by British American Tobacco Kenya to the country’s high court against aspects of the Kenyan government’s proposed tobacco regulations, 16 April 2015
BAT denies it is opposed to all tobacco regulation, but says it reserves the right to ask the courts to intervene where it believes regulations may not comply with the law.
Later this month, BAT is expected to become the world’s biggest listed tobacco firm as it completes its acquisition of the large US tobacco company Reynolds in a $49bn deal, and there are fears over the extent to which big tobacco can financially outmuscle health ministries in poorer nations. A vote on the deal by shareholders of both firms is due to take place next Wednesday, simultaneously in London at BAT and North Carolina at Reynolds.
Professor Peter Odhiambo, a former heart surgeon who is head of the government’s Tobacco Control Board in Kenya, told the Guardian: “BAT has done as much as they can to block us.”
Experts say Africa and southern Asia are urgent new battlegrounds in the global fight against smoking because of demographics and rising prosperity. Despite declining smoking and more controls in some richer countries, it still kills more than seven million people globally every year, according to the WHO, and there are fears the tactics of big tobacco will effectively succeed in “exporting the death and harm” to poorer nations.
There are an estimated 77 million smokers in Africa and those numbers are predicted to rise by nearly 40% from 2010 levels by 2030, which is the largest projected such increase in the world.
In Kenya, BAT has succeeded in delaying regulations to restrict the promotion and sale of cigarettes for 15 years, fighting through every level of the legal system. In February it launched a case in the supreme court that has already halted the imposition of tobacco controls until probably after the country’s general election in August, which are being contested by parliamentarians who have been linked to payments by the multinational company.
Extract – court document
“[A proposal for a new 2% tax on the industry in Kenya] … is arbitrary, capricious and inaccessible … it will have a significant effect on cigarette manufacturers and importers putting at risk further investment and direct and indirect employment opportunities in Kenya.”
A petition by British American Tobacco Kenya to the country’s high court against aspects of the Kenyan government’s proposed tobacco regulations, April 16th 2015
In Uganda, BAT launched legal action against the government in November, arguing that the Tobacco Control Act, which became law in 2015, contravenes the constitution. It is fighting restrictions that are now commonplace in richer countries, including the expansion of health warnings on packets and point-of-sale displays, arguing that they unfairly restrict its trade.
The court actions are brought by BAT’s local affiliates, BAT Kenya and BAT Uganda, but approved at Globe House, the London headquarters of the multinational, which receives most of the profits from the African trade. In its 2016 annual report, BAT outlined the “risk” that “unreasonable litigation” would be brought in to control tobacco around the world. Its response was an “engagement and litigation strategy coordinated and aligned across the Group”.
‘Focus on emerging markets’
At its annual meeting in March, chairman Richard Burrows toasted a “vintage year” for BAT, as profits rose 4% to £5.2bn after investors took their cut – their dividend had increased by 10%. When asked about the legal actions in Africa, he said tobacco was an industry that “should be regulated … but we want to see that regulation is serving the correct interests of the health mission and human mission which should lie behind it”.
Extract – court document
“Your Petitioner alleges and shall demonstrate that the Tobacco Control Act, read as a whole, has the effect of unjustifiably singling out the tobacco industry for discriminative treatment.”
A petition of British American Tobacco Uganda in the constitutional court against the Ugandan government’s Tobacco Control Act
So, “from time to time it’s necessary for us to take legal action to challenge new regulation” which he said was led by “the local board”.
BAT says it is “simply not true that we oppose all tobacco regulation, particularly in developing countries”. Tobacco should be appropriately regulated as a product that has risks to health, it said, but “where there are different interpretations of whether regulations comply with the law, we think it is entirely reasonable to ask the courts to assist in resolving it”. It was opposed to only a handful of the issues in Kenya’s regulations, not the entirety, it said in a statement.
Although most countries in Africa have signed the World Health Organisation (WHO) treaty on tobacco control, none has yet fully implemented the smoking restrictions it endorses.
The WHO predicts that by 2025, smoking rates will go up in 17 of the 30 Africa-region countries from their 2010 level. In some countries a massive hike is expected – in Congo-Brazzaville, from 13.9% to nearly half the population (47.1%) and in Cameroon from 13.7% to 42.7%. In Sierra Leone it will be 41.2% (74% among men) and in Lesotho 36.9%.
In contrast, research showed last year that just 16.9% of adults smoke in the UK; and last month new figures showed UK heart disease deaths had fallen 20% since that country’s indoor smoking ban.
“The tobacco industry is now turning its focus toward emerging markets in sub-Saharan Africa, seeking to exploit the continent’s patchwork tobacco control regulations and limited resources to combat industry marketing advances,” said Dr Emmanuela Gakidou and colleagues at the Institute for Health Metrics and Evaluation at the University of Washington in Seattle, publishing an analysis of smoking prevalence around the world in the Lancet in April.
Extract – letter
Uganda’s economy has “benefitted… significantly” from BAT’s tobacco business, employing 200 Ugandans and 1500 extra in the tobacco buying season. “This has helped to alleviate poverty and improve welfare in urban and rural areas …”
Extracts of a letter from Jonathan D’Souza, managing director of BAT Uganda to the chairperson of the Uganda Parliamentary committee on health, 14 April 2014
Africa’s growing numbers of children and young people, and its increasing wealth, represent a huge future market for the tobacco industry. The companies deny targeting children and cannot sell packs smaller than 10, but a new study carried out in Nairobi by the Johns Hopkins school of public health in the US and the Kenya-based Consumer Information Network found vendors selling cigarettes along the routes children take to walk to primary schools.
Stalls sell single Dunhill, Embassy, Safari and other BAT cigarette sticks, costing around 4p (5 cents) each, alongside sweets, biscuits and fizzy drinks. The vendors split the packets of 20 manufactured by BAT. “They are targeting children,” said Samuel Ochieng, chief executive of the Consumer Information Network. “They mix cigarettes with candies and sell along the school paths.”
BAT said that its products were for adult smokers only and that it would much prefer that stalls sold whole packets rather than single sticks, “given our investment in the brands and the fact there are clear health warnings on the packs.
“Across the world, we have very strict rules regarding not selling our products to retailers located near schools. BAT Kenya provides support to many of these independent vendors, including providing stalls painted in non-corporate colours, and providing youth smoking prevention and health warnings messages. We also educate vendors to ensure they do not sell tobacco products near schools.”
Links with politicians
The Kenya case, expected to be heard after the elections on 8 August, is seen as critical for the continent. If the government loses, other countries will have less appetite for the long and expensive fight against the wealthy tobacco industry.
BAT has around 70% of the Kenyan market; its Kenyan competitor, Mastermind, has joined in the legal action against the government.
Extract – letter
“If these measures are brought into effect, the economic and social impact will be extremely negative. They could even threaten the continuation of our factory which has operated in Bobo Dioulasso for more than fifty years with more than 210 salaried employees.”
Excerpt from letter from Imperial Tobacco to the prime minister of Burkina Faso, 25 January 2016, concerning new regulations on plain cigarette packaging and large graphic health warnings.
Concerns have been raised about links between politicians and the tobacco companies. “There are allegations of some of them having been bribed in the past,” said Joel Gitali, chief executive of the Kenya Tobacco Control Alliance.
BAT whistleblower Paul Hopkins, who worked in Africa for BAT for 13 years, told a British newspaper he paid bribes on the company’s behalf to the Kenya Revenue Authority for access to information BAT could use against its Kenyan competitor, Mastermind. Hopkins has also alleged links between certain prominent opposition Kenyan politicians and two tobacco companies, BAT Kenya and Mastermind. Hopkins, who says he alerted BAT to the documents before the company made him redundant, claimed BAT Kenya paid bribes to government officials in Burundi, Rwanda and the Comoros Islands to undermine tobacco control regulations. Gitali is concerned about the outcome of the election: “If the opposition takes over government we shall be deeply in the hands of the tobacco companies.”
BAT denies any wrongdoing. A spokesperson said: “We will not tolerate improper conduct in our business anywhere in the world and take any allegations of misconduct extremely seriously. We are investigating, through external legal advisors, allegations of misconduct and are liaising with the Serious Fraud Office and other relevant authorities.”
Extract – letter
“Once the decision to smoke is taken by an adult smoker, the pack provides adult consumers with pertinent information”
British American Tobacco letter to the prime minister of Gabon, 1 January 2012
‘We grow up dreaming we can be one of them’
Tih Ntiabang, regional coordinator for Africa of the Framework Convention Alliance – NGOs that support the WHO treaty – said the tobacco companies had become bolder. “In the past it used to be invisible interference, but today it is so shameful that it is so visible and they are openly opposing public health treaties like the case in Kenya at the moment … Today they boldly go to court to oppose public health policy. Every single government is highly interested in economic growth. They [the tobacco companies] know they have this economic power. The budget of tobacco companies like BAT could be as much as the whole budget of the Africa region.
“Our health systems are not really well organised. Our policy makers can’t see clearly what are the health costs of inaction on tobacco control because our health system is not very good. It puts the tobacco industry at an advantage on public health.”
The sale across the whole of Africa of single cigarette sticks was a serious problem because it enabled children to buy them. “They are extremely affordable. Young teenagers are able to purchase a cigarette. You don’t need £1 for a pack of 20,” he said.
BAT has a reputation in Africa as an employer offering steady and well-paid jobs, said Ntiabang, based in Cameroon. “When I was about 10, I was always dreaming I could work for BAT. They have always painted themselves as a responsible company – a dream company to work for. All the staff are well-off. The young people think ‘I want to work for BAT’. They promote a lot of events and make their name appear to young people. We grow up dreaming we can be one of them.”
In Uganda in 2014, BAT managing director, Jonathan D’Souza, sent a 13-page detailed attack on the tobacco control bill, then going through parliament, to the chair of the government’s health committee.
BAT was contracting with 18,000 farmers and paid them 61bn Ugandan shillings for 16.8m kg of tobacco in 2013, said the letter. The economy has “benefited significantly” from BAT Uganda’s investments, it said. “This has helped to alleviate poverty and improve welfare in urban and rural areas,” it says.
Extract – letter
“The draft regulations which you have published deal with a wide range of issues which will have a massive impact not only on the tobacco industry but also on a wider scale on the Namibian economy at large.”
Excerpt from a letter from the general manager of BAT in Namibia to the minister of health and social services, 17 November 2011
BAT Uganda (BATU) agreed tobacco should be regulated while “respecting the informed choices and rights of adults who choose to smoke and the legal rights of a legal industry”. But it cited 11 “areas of concern”, claiming there is no evidence to support a ban on tobacco displays in shops, that large graphic health warnings on packs are ineffective, that proposals on bans on smoking in public places were too broad and that prohibiting smoking under the age of 21 was unreasonable, since at 18 young people are adults and can make up their own mind.
Documents made public by the University of Bath show that BATU had another concern: the ban on the sale of cheap single cigarettes. Adults should be “free to purchase what they can afford”, says an internal leaked paper. BATU also took action against the MP who sponsored the bill. A letter informed him that the company would no longer be contracting with the 709 tobacco farmers in his region. There is evidence that the company also lobbied other MPs with tobacco farmers in their constituencies.
The Tobacco Control Act became law in 2015, and in November last year, BAT sued. Many people choose to smoke, said an affidavit to the court from managing director Dadson Mwaura and it was important to ensure regulation did not lead to “unintended consequences that risk an untaxed and unrestrained illegitimate trade in tobacco products”. BATU’s legal product contributed to the Ugandan economy “in many dimensions”.
The Guardian has seen letters showing that at least six other African governments have faced challenges from the multinational tobacco companies over their attempts to control smoking.
Democratic Republic of Congo: Letter to the president sent in April 2017 by the Fédération des Entreprises du Congo (chamber of commerce) on behalf of the tobacco industry, listing 29 concerns with the proposed tobacco control regulations, which they claim violate the constitution, international agreements and domestic law.
Burkina Faso: Letter sent in January 2016 to the minister of health from Imperial Tobacco, warning that restrictions on labeling and packaging cigarettes risks economic and social damage to the country. Previous letter sent to the prime minister from the US Chambers of Commerce in December 2013 warning that large health warnings and plain packaging could put Burkina Faso in breach of its obligations to the World Trade Organisation.
Ethiopia: Letter sent in February 2015 to the ministers of health and science and technology by Philip Morris International, claiming that the government’s tobacco directive banning trademarks, brands and added ingredients to tobacco breached existing laws and would penalise all consumer retailers.
Togo: Letter to the minister of commerce in June 2012 from Philip Morris International opposing plain packaging, which “risks having damaging consequences on Togo’s economy and business environment”.
Gabon: Letter from BAT arguing that there is no evidence that plain packaging reduces smoking, citing the Deloitte report of 2011, alleging its introduction would put Gabon in breach of trade agreements and promote smuggling.
Namibia: Letter to the minister of health from BAT, warning that planned tobacco controls will have “a massive impact … on the Namibian economy at large”.
Extract – memo
“As a country whose economy heavily relies on exports, Togo can ill afford to anger its international partners by introducing plain packaging.”
Excerpt from memo on plain packaging from chief executive of Philip Morris West Africa to the minister of commerce of Togo, to reiterate its concerns following a meeting, 21 June 2013
Bintou Camara, director of Africa programs at Campaign for Tobacco-Free Kids, said: “British American Tobacco, Philip Morris International and other multinational tobacco companies have set their sights on Africa as a ‘growth market’ for their deadly products”. Throughout Africa, tobacco companies have tried to intimidate countries from taking effective action to reduce tobacco use, the world’s leading cause of preventable death, he added.
“Governments in Africa should know that they can and should move forward with measures aimed at preventing and reducing tobacco use – and that they do so with the support of the many governments and leaders around the world that have taken strong action to protect public health.”
Cloe Franko, senior international organizer at Corporate Accountability International, said: “In Kenya, as in other parts of the world, the industry has resorted to frivolous litigation, aggressive interference … to thwart, block, and delay lifesaving policies. BAT’s actions are emblematic of a desperate industry grasping to maintain its hold over countries and continue to peddle its deadly product.”
Philip Morris said it is regularly engaged in discussions with governments. “We are approached by or approach public authorities to discuss a range of issues that are important for them and for us, such as taxation, international trade, and tobacco control policies. Participating in discussions and sharing points of view is a basic principle of public policy making and does not stop governments from taking decisions and enacting the laws they deem best.” It said that it supports effective regulation, “including laws banning sales to minors, mandatory health warnings, and advertising restrictions”.
Imperial Tobacco said it sold its brands “where there’s a legitimate and existing demand for tobacco and take the same responsible approach in Africa as we do in any Western territory”. A spokesman said it supported “reasonable, proportionate and evidence-based regulation of tobacco”, including “health warnings that are consistent with global public health messages”. But, it said, Imperial would “continue to make our views known on excessive, unnecessary and often counter-productive regulatory proposals”.