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How would you respond to this scenario? A cosmetics company releases a new line of fragrances that promises to “make life wonderful.” The product is a hit, and millions of consumers world-wide begin using it daily. But researchers soon find that the fragrances contain a very addictive chemical that is absorbed through the skin. Worse, the chemicals that make the fragrances alluring are found to be toxic and carcinogenic, and the cancer rate of users skyrockets.

Further investigation reveals that not only did the cosmetic company know about these problems, it had invested a fortune to ensure that the fragrances are as addictive as possible. Are the corporate ringleaders guilty of murder?

Of course they are. Not only would the fragrances be removed from shelves, the CEO and other top corporate officials would be arrested and prosecuted. In 2014 the owner of a peanut company in the US was sent to prison for knowingly putting salmonella-tainted peanut butter on the market, killing nine people. And peanut butter is not addictive.

So why aren’t tobacco executives treated similarly? In a word, inertia.

By the time scientists and governments were sure of the health impacts of tobacco, hundreds of millions of people were already addicted, and tobacco use had become normalised. The public health community has spent decades, with marked success, denormalising tobacco use.

Meanwhile, the tobacco industry has not only continued selling products it knows to be deadly and addictive, it has worked hard to make them more addictive and therefore more dangerous.

If cigarettes were introduced to the market today, and their impact was immediately recognised, criminal charges would quickly follow. It is only the historical legacy and political power of tobacco companies that have kept tobacco executives out of prison. To be clear, getting away with a crime for a long time is not a legal defence.

Criminal liability has received scant attention under FCTC Article 19. The report of the Expert Group to this COP, which is excellent on civil liability, does not include the word “criminal” except when it is lumped in with the phrase “civil and criminal liability”. This partly reflects the complexities of addressing criminal law in 180 jurisdictions. But perhaps it is time for society as a whole – to begin considering how long we will let people get away with murder.

Civil liability is a key litigation tool in the fight against Big Tobacco. In the US, Canada, and other jurisdictions, civil cases have had a profound impact, especially in  revealing the underhanded tactics of the industry.

In many of those cases, judges have opined on the potential criminal ramifications of such tactics, but to date no criminal charges have been filed addressing the tobacco industry’s core business practices.

A successful criminal prosecution would be a fundamental blow to the tobacco industry’s ability to carry on with “business as usual”. The key  acts that add up to murder, including nicotine manipulation and marketing, would have to cease; recruitment of corporate officials would be nearly impossible; corporate executives indicted in one jurisdiction would not be able to travel there, and would face extradition.

Since the adoption of the FCTC, there has been much talk of “end-game” scenarios in tobacco control. Criminal liability needs to be on that list.

Chris Bostic, deputy director, policy Action on Smoking and Health (US)

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