Feature

Has the tobacco industry finally met its match?

In the wake of a recent courtroom success, anti-smoking campaigners are pinning fresh hopes on litigation in the battle against the tobacco industry. Monisha Bhaumik reports

You caused the health crisis, now you pay for it,’ said Mississippi attorney general Mike Moore, announcing in 1994 that the state was to take tobacco companies to court. With the costs of treating people with tobacco-related diseases spiralling out of control Mississippi, along with a number of other US states, is attempting to recover this money from the tobacco industry.

But, despite numerous attempts, the tobacco industry has never paid out a penny in damages in tobacco-related litigation – until now. In August, a Florida court decided that 66-year-old Grady Carter, who developed lung cancer after smoking for more than 40 years, should receive $750,000 in damages from tobacco company Brown and Williamson.

Before that, the only case they had ever lost was overturned on appeal. Despite the wealth of evidence about the dangers of smoking, companies have always managed to wriggle out of liability, claiming that litigants cannot conclusively prove that smoking caused their illness, that they understood the risks of smoking and that it is impossible to tell which tobacco manufacturer is to blame in a particular case.

Anti-tobacco litigants have therefore been looking at new ways of bringing cases. The US states case will attempt to circumvent the tobacco industry’s usual defences by suing all cigarette manufacturers on behalf of the states, not individuals. The first of these, brought by Mississippi, is due to be heard in March 1997. If the states win, the cigarette manufacturers will have to split the damages according to their market share.

Florida, which sees 28,000 tobacco-related deaths each year, has gone as far as passing a new law, prohibiting the tobacco industry from using its traditional arguments on the grounds that these are not relevant to the costs incurred by the states in treating tobacco-related diseases.

The states’ case received an enormous boost when one of the companies named in the action, Liggett Group, decided to settle out of court. The Liggett deal involved the company setting aside 7.5 per cent of its profits over 24 years to pay for the costs of tobacco-related diseases. As Liggett is a minor company, only the fifth largest in the US, the deal does not amount to very much in financial terms. But it does mark a psychological breakthrough, as in the past tobacco companies have always joined forces and collectively chosen to pursue such cases doggedly through the courts.

Liggett’s decision to make a settlement was in part a commercial tactic in the company’s fight to take over one of the major US tobacco firms. But the damning testimony of whistleblower Jeffrey Wigand also played a part. Wigand, a former research and development director at Brown and Williamson, a subsidiary of British American Tobacco, turned the tables on the company last year. He went on the record saying that Brown and Williamson had manipulated nicotine levels, knowingly used an additive which lab tests showed had caused cancer in animals and tampered with documents to destroy evidence that the company had planned to develop a safer cigarette. He also stated that a former Brown & Williamson chairman had lied to Congress about his views on nicotine addiction.

The US states case has not yet come to court but another major US attempt at anti-tobacco litigation received a set-back recently. Lawyers were trying to establish a ‘class action’ on behalf of all smokers in America. The idea was that once the case had begun, any smoker who wanted to could join in. This case was also based on a new argument — that the tobacco industry knew long ago of the addictiveness of tobacco but kept this information secret from the public.

Unfortunately a court ruled that the case could not proceed as a class action, due to its enormous potential size. However, the three litigants who began the case are to go ahead with it and lawyers are appealing against the decision to block the class action.

In the UK, ASH has recently launched a campaign aiming to attack the tobacco industry through litigation. As in the US, ASH is arguing that the tobacco industry must take responsibility for the health damage their products have inflicted because they knowingly withheld information about the dangers of tobacco from the public. UK lawyers have been arguing that the tobacco industry knew over 30 years ago that tar was lethal and nicotine addictive, and that levels of these substances should have been reduced.

Lawyers were hoping to get legal aid to sue the tobacco industry on behalf of smokers with tobacco-related diseases. The Legal Aid Board granted funding for the case to be investigated for a year but have refused to grant further money for it to be taken to court. The case would have the been the biggest ever to be funded under legal aid. It seems likely that the main reason for the rejection of application was the climate of cutbacks within legal aid, rather than the merits of the case itself.

Perhaps the Legal Aid Board’s decision should have come as no surprise. The British establishment has always been happy to side with the tobacco industry at the expense of the nation’s health. Despite an outcry from medical professors, Cambridge University recently decided to take funding from BAT to set up a chair in international relations, and of course there is the government’s reluctance to ban the advertising and promotion of tobacco, preferring to leave its regulation to a committee made up of government and tobacco industry representatives.

But regardless of this, the anti-tobacco lobby is determined that litigation will proceed without legal aid. ASH has launched an appeal for funds to continue with the case. Failing that, lawyers are considering taking it on a ‘no-win, no-fee’ basis. Other possibilities for UK litigation are also being investigated and meetings are currently being held to discuss the best targets.

One positive development for tobacco litigation in the UK is the decision by judges to allow a case against Imperial Tobacco to proceed in Scotland. Widow Margaret McTear is suing Imperial over her husband’s death from lung cancer, on the same grounds as the English case which was refused legal aid. Imperial tried to block the case by arguing that Mrs McTear should put up a £2m bond to pay the company’s legal fees if she is defeated. But the judges ruled against this on the grounds that such a precedent would prevent poor people ever seeking justice through an expensive legal case.

The other encouraging factor is that victories in several passive smoking cases have shown that it is possible to prove the health damage caused by smoking through the British legal system.

In two separate out-of-court settlements, Stockport Metropolitan Borough Council paid damages totalling £40,000 to two employees who were able to show that their health had been seriously damaged as result of their smoky working environments.

Part of the aim of ASH’s litigation campaign is to undermine the financial viability of investing in tobacco. The financial implications of litigation for the tobacco industry are huge and tobacco shares have certainly proved very vulnerable to developments in the litigation field. One of the most worrying factors for investors must be that at least one major tobacco company has admitted that it has no contingency plans to deal with these legal costs.

The determination of those bringing forward anti-tobacco litigation is fuelled both by disgust at watching the industry profit from ruining people’s health and outrage at their concealment of the true facts about their products. With cases being brought all over the world, sooner or later one is bound to win — even on appeal — and this will open the floodgates for similar claims. When that happens, ASH will be encouraging anyone who feels they have a case to come forward and give the industry what it deserves.