The Article 19 Expert Group has produced an excellent civil liability toolkit to help Parties strengthen their laws to hold tobacco companies legally accountable for the deaths, disease and health care costs that their products and misbehaviour produce.
But the toolkit won’t do any good in the closet.
First, it needs to be used by the Parties to strengthen their laws;. Second, the Parties, or civil society, need to use these laws to actually bring litigation against the industry. Nongovernmental organizations (NGOs) can provide critical assistance at both stages., Tobacco litigation has been demonstrated to contribute powerfully to achieving tobacco control goals. In the United States, health care litigation has:
1. Produced billions of dollars of annual payments to the states,
2. Forced manufacturers to raise prices sharply— greatly reducing smoking, especially among youth.
3. Funded the counter-advertising campaign, Truth,; and
4. Revealed millions of internal industry documents that have made the industry politically toxic, making strong national tobacco control legislation possible for the first time.
FORCING THE TRUTH
Individual litigation, brought by private attorneys, has forced the industry to stop pretending that “light” cigarettes are less dangerous than other cigarettes, drawn media attention to the fact that cigarettes kill real people (as opposed to dreary statistics), and redirected the industry’s PR machinery from denying the dangers of cigarettes to blaming plaintiffs for being foolish and weak-willed for actually using them. In France however, the tobacco control law known as the Loi Evin authorised civil society to bring litigation against tobacco companies that violate advertising restrictions. This has resulted in effective enforcement of the law, along with substantial fines that have helped fund tobacco control organisations.
Why do Parties need help from NGO’s? Principally because not many people in the world – and few or none in most Parties – have experience bringing litigation against the tobacco industry. Health ministries certainly don’t have that expertise, but neither do justice ministries. Such litigation has only been attempted in a few countries, with even fewer chalking up successes to date.
EXPERIENCE NEEDED
The challenges and opportunities this litigation presents are quite different from other litigation.
Consider some examples. Much of the industry’s misbehaviour has taken place in the US or Britain and while there are millions of internal documents- many of which are incriminating— it’s not obvious how to find the right ones or get them admitted into evidence. Many of these documents are publicly availabe at http://truthinitiative.org.
Tobacco defendants will also try to complicate the proceedings by insisting that each victim’s case is so unique that it must be tried separately, making personal injury litigation and even health care recovery litigation prohibitively expensive to bring. This experience needs to be presented to legislators and judges to persuade them to
rationalise and simplify procedures. And of course, tobacco defendants are endlessly inventive in making up reasons for delays and pre-trial appeals. Successful efforts to limit these possibilities in advance and to debunk claims that have been refuted elsewhere will also need the assistance and perhaps testimony from veterans of prior tobacco litigation battles.
Fortunately, help is readily available. The Tobacco Products Liability Project, part of the Public Health Advocacy Institute at Northeastern University School of Law in Boston, US, has been addressing these issues since its founding in 1984. We have held more than 20 conferences with multi-national participation in Boston and have participated in multiple tobacco litigation conferences in each region designated by the World Health Organization. Since the purpose of the project is to encourage tobacco litigation as a public health strategy, we are happy to share our experience and expertise with Parties and civil society seeking to implement Article 19. Experienced attorneys are also available for technical assistance at the McCabe Centre for Law and Cancer in Melbourne, Australia and the International Legal Consortium at the Campaign for Tobacco-Free Kids in Washington, DC.
Richard Daynard
Public Health Advocacy Institute,
Northeastern University School of Law, Boston