Tobacco politics

In 1964, the Surgeon General released a report confirming the causal link between smoking and cancer.^[1][2] Tobacco industries formed the Tobacco Institute, a trade association that acted as a lobby for tobacco industries in Congress.^[3] This lobbying was generally successful, as the tobacco industry was well-funded and Southern states relied on tobacco revenues.^[2][3] For example, after the Federal Trade Commission (FTC) mandated health warning labels on cigarette packaging, tobacco companies successfully requested Congressional regulation in place of FTC regulation.^[2] The Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965 originally required cigarette warning labels to include a warning of cancer, but this was removed from the final bill.^[1][2]

Although tobacco companies had considerable influence throughout the twentieth century, anti-tobacco advocates also had some success. In 1967, anti-tobacco advocates successfully argued that the

Tobacco companies continue to play a large role in politics, although not as extensively as in the twentieth century.[12] In 1990, the contributions of tobacco lobbies totalled to over $70 million.^[12] In 2017, tobacco lobbies paid $21.8 million.^[12] Tobacco companies tend to donate more to Republican candidates, contributing over $50 million since 1990 to Republicans, including former Vice President Mike Pence.^[13] Although multiple proposals for relaxed electronic cigarette regulation, such as the Cole-Bishop Amendment in the 2017 omnibus bill and FDA Deeming Authority Clarification Act of 2017, have emerged, none have passed yet.^[14] In 2006, courts ordered tobacco companies to run anti-smoking advertisements, but tobacco companies delayed this order through multiple appeals until 2017.^[15] As of 2017, tobacco companies must now run advertisements detailing the negative health impacts of smoking for a year.^[15] In a measure to curb use of E-cigarettes' among youth US FDA banned promoting and selling of flavored vaping products in January 2020.^[16]

In 2017, Philip Morris International created the Foundation for a Smoke-Free World and fully funds it (to the tune of $80 million per year over twelve years) for the purpose of promoting new tobacco industry products.

Litigation

The history of tobacco litigation in the United States can be divided into three waves: (1) from 1954 to 1973, (2) from 1983 to 1992, and (3) from 1994 until today.[18] During the first two waves, tobacco companies had enormous success, winning all but one of their cases, with the only case they lost, Cipollone v. Liggett, being reversed.^[18][19]

During the first wave, a growing abundance of evidence linked tobacco to death and disease.^[18] Individual smokers filed lawsuits against the tobacco industry, claiming negligence in manufacturing and advertising, breach of warranty, and product liability.^[19] However, the tobacco industry responded by challenging the science of smoking causing disease and claiming that smokers assumed any risks.^[19]

During the second wave, plaintiffs charged tobacco companies with failure to warn about the addiction and disease risk of cigarettes and strict liability.^[19] The tobacco companies argued that people assumed the risks of smoking and that federal laws preempted state laws, which the lawsuits were filed under.^[19] In addition, the tobacco industry poured a massive amount of money into these cases, trying to overwhelm plaintiffs with legal costs.^[18] An internal memorandum by an attorney for the RJ Reynolds tobacco company described their strategy as, “To paraphrase General Patton, the way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all [of] his.”^[18]

The third wave of tobacco litigation was much more successful for plaintiffs, with plaintiffs winning 41% of cases between 1995 and 2005.^[18] It also saw a greater number and variety of lawsuits overall.^[18] State attorneys general charged the tobacco industry of using misleading marketing, targeting children, and concealing the health effects of smoking.^[19] These cases resulted in settlements across all fifty states in the United States.^[19]

Recently, there has been mixed success for plaintiffs in tobacco litigation. In Florida, a large class action lawsuit was rejected, because the court argued that each individual case must be proven.

• 1992: In Cipollone v. Liggett Group, Inc. the US Supreme Court held that the Surgeon General's warning did not preclude suit by smokers against tobacco companies on several claims, and that the federal laws on tobacco regulation aren't worded to override state laws.
• 1995: The Supreme Court of Canada in
  RJR-MacDonald Inc. v. Canada (Attorney General)
  upheld the constitutionality of the federal Tobacco Products Control Act, but struck out the provisions which prevented tobacco advertising and unattributed health warnings.
• March 2001: The US Supreme Court affirmed the Circuit Court's ruling that the
  Food, Drug and Cosmetic Act. (FDA v. Brown & Williamson Tobacco Corp.
  )
• June 2002: A District Court in Kansas awarded $15 million in punitive damages against R.J. Reynolds Tobacco after calling the company's conduct "highly blameworthy and deserving of significant punishment." (David Burton vs. R.J. Reynold's Tobacco)
• June 2002: A Miami jury held three cigarette companies liable for $37.5 million in a lawsuit involving an ex–smoker who lost his tongue to tobacco–related oral cancer. (Lukacs vs. Philip Morris)
• October 2002: A Los Angeles jury issued $28 billion in punitive damages against Philip Morris. This was later reduced to $28 million. (Betty Bullock vs. Philip Morris)
• 2003: A Madison County, Illinois jury awarded $10.1 billion against the tobacco company Philips Morris for deceptive cigarette advertising in a class action led by attorney Stephen Tillery (Price v. Philip Morris).[24]
• 2004: A New York jury issued $20 million to the wife of a long-term smoker who died of lung cancer at the age of 57. This was the first time that a New York court had held a tobacco company liable for an individual smoker's death. (Gladys Frankson vs. Brown and Williams Tobacco Corp)
• 2005: In
  Imperial Tobacco v. British Columbia the Supreme Court of Canada found that the provincial Tobacco Damages and Health Care Costs Recovery Act
  , which allowed the government to sue tobacco companies, was constitutionally valid.
• 2007:
  State Farm v. Campbell
  . The appeals court ultimately upheld their original damages.
• 2008: The
  Altria Group v. Good
  US Supreme Court case said that state law is not preempted by a federal law regarding cigarette advertisement regulations.

Grounds of claims

This section needs expansion. You can help by adding to it. (December 2008)

Civil Rights

Tobacco companies have marketed

menthol cigarettes specific to African Americans; groups have pursued civil rights remedies in court.^[25]

Design defects

Claims of design defects allege that tobacco companies designed tobacco products with additional adverse health risks. Examples of design defects include cigarettes that increase addiction risks and deliberately choosing to not develop less harmful cigarettes.[26]

In response, tobacco companies have argued that they have not intentionally made cigarettes more dangerous, but instead carefully and thoughtfully design the least hazardous tobacco product for smokers.^[26]

Strict liability

Under a theory of strict liability, a tobacco company is responsible for any damages or injuries resulting from the use of cigarettes even if there is no showing of negligence.^[27]

Product liability

The liability of any or all parties along the chain of manufacture, distribution and sale of any product for damage or injury caused by that product.^[28]

Depriving of health hazards information

Lawsuits against tobacco companies have asserted that tobacco companies mislead the public on the risks of smoking, environmental smoke, and nicotine addiction.^[29]

Defenses

This section needs expansion. You can help by adding to it. (December 2008)

Volenti non fit injuria

Volenti non fit injuria, or "to a willing person, no injury is done", is a common law doctrine which states, when applied to these cases, that there is no damage to someone who willingly places themselves in a position where they are negatively affected by tobacco consumption.

Contributory negligence

Contributory negligence is a common law defense to a claim based on negligence, that before the cases, the adverse effects were unknown. This has been one of the commonly used defences. Most of them will assert that it was the plaintiff himself that has contributed to his own injury as he has prior knowledge of the harm associated with tobacco smoking.

Tobacco advertising fails to influence non-smokers

In 2006, tobacco companies argued that

tobacco advertisements were intended for smokers choosing between brands of tobacco products.^[30] Moreover, advertising has a limited effect on influencing smoking behavior.^[30] Therefore, tobacco advertisements do not play a role in driving non-smokers to smoke.^[30]

Tobacco companies have claimed that epidemiological evidence cannot show direct causation in individuals.^[31] This reasoning was used in the 2005 McTear v. Imperial Tobacco Limited case in Scotland, arguing that the plaintiffs could not reasonably prove that the plaintiffs’ smoking caused lung cancer.^[31] In addition, tobacco companies challenge the way epidemiological evidence is collected.^[31]

Litigation outside of the United States

Introduction

As of 2000, litigation also continued in several countries outside the United States. Citing third-party reimbursement, several countries, such as Bolivia, Guatemala, Nicaragua, and Venezuela, have filed lawsuits both in the United States and in their own courts against tobacco industries.^[32] As of 2000, individual suits have also been filed in a multitude of countries, including Argentina, Finland, France, Japan, Ireland, Israel, Norway, Sri Lanka, Thailand, and Turkey.^[32]

WHO Framework Convention on Tobacco Control

The

Before 1998, the concept of an international tobacco control treaty received little enthusiasm.[4] However, in 1998, Gro Harlem Brundtland became director general of the WHO, creating momentum for the FCTC.^[4][7] Organizations and events within the United States also played a key role in the creation and adoption of the FCTC globally. The American Public Health Association helped support the development of the FCTC, while the wave of successful tobacco litigation helped generate interest in tobacco control.^[4][7] However, the FCTC lacks mandates on transboundary tobacco issues.^[7] As a result, implementation of the treaty fell short, despite widespread ratification.^[7] In response, organizations such as Bloomberg Philanthropies and the Bill and Melinda Gates Foundation increased their philanthropic contributions to the WHO, creating MPOWER tobacco control, which focuses on implementation of FCTC.^[7]

Australia

In Australia, tobacco companies have faced several lawsuits, although not to the scale of litigation in the United States.^[32][34] In 1991, the Federal Court found advertisements denying environmental smoke to be misleading.^[32] In the 1999 case Nixon v. Philip Morris (Australia) Ltd, plaintiffs claimed tobacco companies misled them on the risks of smoking, although Courts ruled the case could not continue as representative proceedings (similar to class action lawsuits in the United States).^[32][35] Personal injury cases are less common in Australia, as unsuccessful plaintiffs must pay the legal fees of the defendant, less profit incentives exist for Australian lawyers, and momentum from successful tobacco litigation has not been generated.^[34]

McCabe v British American Tobacco (2002) was the first personal injury case outside the United States to win a verdict against a tobacco company.^[36] The plaintiff, Rolah McCabe, who was diagnosed with lung cancer, claimed British American Tobacco Australia misled her in estimating the risk for smoking cigarettes.^[36] The verdict was later overturned, although McCabe died before the court proceedings finished.^[36] This case has been influential in litigation and legislation concerning document destruction, as British American Tobacco destroyed several documents in this case.^[36]

In 2005, a court-enforceable settlement between the Australian Competition and Consumer Commission (ACCC) and Philip Morris (Australia) Limited, British American Tobacco Limited, and Imperial Tobacco Australia Limited, was reached.^[37] The companies agreed to stop describing cigarettes as “light” and “mild” and provide $9 million for corrective advertising, in exchange for the ACCC to no longer pursue certain legal action against the companies.^[37] Afterwards, the companies started to describe cigarettes with terms such as “rich”, “classic”, “smooth”, “fine”, “ultimate”, “refined”, and “chilled”.^[37]

Tobacco companies have not been the only defendants in tobacco litigation. In cases regarding environmental smoke, the defendants are often the owners or managers of locations where environmental smoke occurs.^[38][39] In Meeuwissen v Hilton Hotels of Australia Pty Ltd (1997), the plaintiff argued environmental smoke in a nightclub constituted unlawful discrimination based on disability, and was awarded $AU2000 in compensation.^[32] Aside from disability discrimination, environmental smoke lawsuits have also cited common law negligence, occupational health and safety law, and occupiers’ law.^[38] The result of such litigation has been increased bans on smoking in the workplace and certain public places.^[38]

Tobacco companies have also initiated litigation domestically and internationally, claiming government measures against tobacco have infringed on their commercial rights.^[40] In 2011, the Australian government introduced plain packaging legislation.^[41] Philip Morris Asia Limited challenged this directive under a bilateral trade agreement with Hong Kong, but did not succeed.^[42] Cuba, Honduras, the Dominican Republic and Indonesia also filed a World Trade Organization complaint, but the WTO upheld the plain packaging law in 2017.^[43]

Bhutan

The Tobacco Control Act of Bhutan 2010 prohibits the cultivation, manufacture, sale, and distribution of tobacco products within Bhutan^[44]

Brazil

Retail sale of e-cigarettes and e-cigarette refills is prohibited.^[45] Tobacco products are not prohibited.

China

Although China faces many tobacco-related health problems, with over 1.2 million tobacco-related deaths per year, the government has had a limited response.^[46] The tobacco industry provides 7 to 10 percent of tax revenue for the government, while also providing many jobs in agriculture, sales, and other businesses.^[46] In addition, the government considers anti-smoking measures as potentially destabilizing, given the resentment and unrest it could cause.^[46]

The tobacco industry and some bureaucratic institutions oppose anti-smoking measures. In China, the tobacco industry is heavily monopolized.

Some regional governments also oppose tobacco control policies. For example, in Yunnan Province, tobacco is the largest industry, with tobacco taxes supplying one half of its local government revenue.^[46] Other provinces like Guizhou, Henan, and Sichuan, also rely heavily on revenue from tobacco production.^[46]

The Chinese government has implemented some tobacco control measures. Through the 1980s and 1990s, the national government and local governments implemented various bans on smoking in public places.

Regular cigarettes and other tobacco products are not prohibited. E-cigarettes are prohibited.[47]

Japan

After the Meiji Restoration in the nineteenth century, Japan began taxing tobacco.^[48][49] Historically, tobacco revenue has been used to fund military endeavors.^[48][49] In the late nineteenth century, following the deficits from the Sino-Japanese War and in preparation for the Russo-Japanese War, the government imposed a monopoly over tobacco production.^[48][49] In 1985, this monopoly was privatized into what is now Japan Tobacco (JT), although the government still exhibits great influence over and benefits from tobacco tax revenue.^[48][49] In 1999, Japan Tobacco created its international branch, Japan Tobacco International (JTI).^[48] JTI is now the world's third largest transnational tobacco corporation (TTC).^[48]

In 2014, the Tokyo High Court ruled that there was not definitive scientific evidence that passive smoking causes cancer, although the evidence they were presented was discredited outside of Japan.^[50]

In 2017, in preparation for the 2020 Summer Olympic and Paralympic Games hosted in Tokyo, the Health, Labor and Welfare Ministry called to ban smoking in public facilities.^[49] Japan has some of the least stringent tobacco control measures in the world.^[51] The food service industry, which includes public premises like restaurants and bars, strongly opposed this measure.^[49] In 2018, the plan for a total smoking ban was revised to include certain exceptions, such as separate rooms for smokers in restaurants in exempting “small-scale” establishments.^[52]

Nicotine-containing e-cigarettes are only permitted as medicinal products and no e-cigarettes have been approved. Regular cigarettes and other tobacco products are not prohibited.^[53]

Netherlands

Lidl Netherlands stopped selling cigarettes in 2021.^[54]

Russia

In Russia, smoking is very prevalent, with tobacco industries wielding great influence in Russian politics.^[55] Several Russian Duma members have also worked within the tobacco industry.^[55] After a protest caused by cigarette shortages in 1990, transnational tobacco companies began to invest in the Russian tobacco market, particularly in production.^[55] This growth in industry has been accompanied by an increase in smoking, and Russia has the highest rates of smoking in Europe.^[55]

Although the Russian government has attempted to implement tobacco prevention and control programs, most of these have had limited success. In the mid-1990s, the

In 2017, the Ministry of Health proposed a cigarette ban that would apply to all born after 2014, although some have expressed concern that a ban would result in a cigarette black market.[56]

Seychelles

While tobacco products are not prohibited, there are some restrictions that exist on the manufacture, importation, and sale of tobacco products, including packaging and labeling requirements. The use of e-cigarettes is also legal since 2019.^{[57] [58]}

Singapore

While tobacco products are not prohibited, there are some restrictions that exist on the sale of tobacco products and E-cigarettes are prohibited. ^[59]

Slovenia

The ranking of Slovenia in the Tobacco Control Scale moved from the 28th position in 2016 to the 8th in 2019. It is one of the 13 EU member states which in 2012 have approved a smoking ban in private cars in presence of minors. The remaining countries are: Ireland, UK, France, Finland, Italy, Malta, Cyprus, Lithuania, Slovenia, Luxembourg, Austria, Greece and Belgium.^[60] In 2020, Slovenia launched a program with the purpose to become a tobacco-free society by 2040, as the last useful date.^[61]

South Africa

Smoking in public is banned. This includes pubs, bars, walkways, and parking spaces. Smoking on public transport and domestic flights. The use of tobacco is also banned in any car carrying a person under the age of 12.^[62][63]

UK

As of 2012, in England, cigarette and tobacco displays in supermarkets were banned. As such, though sale in supermarkets is not yet entirely banned, they must at least stay hidden in closed cupboards, out of sight.^[64]

England met its target to reduce its adult smoking prevalence to 21% or lower by 2010.^[65]

Uruguay

The law prohibits the sale of tobacco products via vending machines, the internet, educational facilities and various other places. E-cigarettes are also prohibited.^[66]

See also

• Nicotine marketing
• A Frank Statement
• Cigarette filter ban^[67][68]
• E-cigarette deposit-system^[69]
• Operation Berkshire
• Tobacco Master Settlement Agreement
  • Tobacco MSA (Alabama)
  • Tobacco MSA (Hawaii)
  • Tobacco MSA (New York)
• Merchants of Doubt and 2014 film Merchants of Doubt based on the 2010 book
• WHO Framework Convention on Tobacco Control

References