Tobacco Control Playbook

As recognised in the Guidelines to Article 5.3 of the WHO FCTC, there is a fundamental and irreconcilable conflict between the interests of the tobacco industry and public health interests.

This fundamental and irreconcilable conflict has been recognised in judicial opinions in both the WHO European Region and other regions. Judgments have recognised that:

• The tobacco industry has continually and deliberately misled the public as to the harmful and addictive nature of its products, as well as its own marketing practices in relation to those products.
• The evidence provided by the tobacco industry when challenging tobacco control measures in courts is frequently of low quality and/or misleading.
• The interests that the tobacco industry seeks to protect in litigation are essentially interests to continue to promote and sell its products in ways that harm public health.
• The uniquely harmful nature of tobacco products means that the tobacco industry cannot be expected to be treated the same as makers of other consumer products.
• The tobacco industry has on many occasions attempted to frustrate legal processes to prevent people who have suffered tobacco-related harm from being able to bring claims against the industry.

This special issue draws on some of the judicial statements that have been made about the tobacco industry in litigation. It covers both cases where the tobacco industry has initiated litigation, for example in bringing legal challenges against governments seeking to regulate tobacco, and cases where the tobacco industry is a defendant, for example in class actions brought by persons suffering from tobacco-related illness.

The first paper published today, looks at the industry’s deliberate deception of the public and their use of so-called ‘evidence’ in litigation.

The second paper which will be published in January 2018, presents statements that relate to the true nature of the interests that the tobacco industry aims to protect when bringing legal challenges against public health regulation; comparisons of the tobacco industry with other consumer products industries, and the conduct of the tobacco industry in frustrating the legal processes.

Tobacco industry 'evidence' and deception of the public

Many judicial statements recognise that tobacco companies have deliberately misled the public in relation to the harmful and addictive nature of tobacco products, the harms of tobacco use and exposure to tobacco smoke, and the tobacco industry’s marketing practices. Courts have in particular commented on the practice of marketing to children and young people, and on the use of ‘health reassurance’ tobacco products (such as ‘light’ or ‘mild’ cigarettes) to convey a false impression that one tobacco product is less harmful than another.

These comments can be summarised by the statement of the High Court of England and Wales in British America Tobacco v Secretary of State for Health that:

• "… the tobacco companies have over multiple decades set out, deliberately and knowingly, to subvert attempts by government around the world to curb tobacco use and promote public health." – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016), para 18 ^[1].

Specific findings related to deceptive practices by the industry were made in Létourneau v JTI-McDonald Corp, a class action brought in Canada by persons affected by tobacco-related illness, and United States v Philip Morris USA, Inc, a fraud action brought by the United States federal government against major US tobacco companies ^[2][3]. These cases made the following statements regarding the practices of the tobacco industry:

General statements:

• "Over the nearly fifty years of the Class Period, and in the seventeen years since, the Companies earned billions of dollars at the expense of the lungs, the throats and the general well-being of their customers" Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 1037 ^[2].
• "In this case, the evidence of Defendants' fraud is so overwhelming that it easily meets the clear and convincing standard of proof. The Findings of Fact lay out in exhaustive detail the myriad ways in which Defendants made public statements, often directly to consumers, which were flatly contradicted by their internal correspondence, knowledge, and understanding." – United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006), page 888 ^[3].

Misleading the public as to the addictive nature of tobacco:

• "Notwithstanding the understanding and acceptance of each Defendant that smoking and nicotine are addictive, Defendants have publicly denied and distorted the truth as to the addictive nature of their products for several decades. Defendants have publicly denied that nicotine is addictive, have suppressed research showing its addictiveness, and have repeatedly used misleading statistics as to the number of smokers who have quit voluntarily and without professional help." United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) para 829-830 ^[3].

Misleading the public as to the harms of tobacco use and exposure to tobacco smoke:

• "In spite of overwhelming scientific acceptance of the causal link between smoking and disease, [Imperial Tobacco Limited (ITL)] continued to preach the sermon of the scientific controversy well into the 1990's …" Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 1078 ^[2].
• "By choosing not to inform either the public health authorities or the public directly of what they knew, the Companies chose profits over the health of their customers. Whatever else can be said about that choice, it is clear that it represent[s] a fault of the most egregious nature and one that must be considered in the context of punitive damages." Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 239 ^[2].
• "Thus, one can only wonder whether the people making such comments [to create doubts about the link between smoking and lung disease] were remarkably naïve, wilfully blind, dishonest or so used to the industry's mantra that they actually came around to believe it. Their linguistic and intellectual pirouettes were elegant and malevolent at the same time. They were also brutally negligent." Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 268 ^[2].
• "Here again, ITL's attitude and behaviour portray a calculated willingness to put its customers' well-being, health and lives at risk for the purpose of maximizing profits." Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 288 ^[2].
• "On the basis of the preceding and, in particular, the clear and uncontested role of the [Canadian Tobacco Manufacturers’ Council] in advancing the Companies' unanimous positions trivializing or denying the risks and dangers of smoking, we hold that the Companies indeed did conspire to maintain a common front in order to impede users of their products from learning of the inherent dangers of such use." Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 475 ^[2].
• "… Defendants crafted and implemented a broad strategy to undermine and distort the evidence indicting passive smoke as a health hazard. Defendants' initiatives and public statements with respect to passive smoking attempted to deceive the public, distort the scientific record, avoid adverse findings by government agencies, and forestall indoor air restrictions." United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) para 3303-3305 ^[3].

Falsely denying that tobacco industry marketing is targeted at children and young people:

• "The evidence is clear and convincing—and beyond any reasonable doubt—that Defendants have marketed to young people twenty-one and under while consistently, publicly, and falsely, denying they do so." United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) para 3296-8 ^[3].
• "Defendants' marketing activities are intended to bring new, young, and hopefully long-lived smokers into the market in order to replace those who die (largely from tobacco-caused illnesses) or quit. Defendants intensively researched and tracked young people's attitudes, preferences, and habits. As a result of those investigations, Defendants knew that youth were highly susceptible to marketing and advertising appeals, would underestimate the health risks and effects of smoking, would overestimate their ability to stop smoking, and were price sensitive. Defendants used their knowledge of young people to create highly sophisticated and appealing marketing campaigns targeted to lure them into starting smoking and later becoming nicotine addicts." United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) para 3298 ^[3].

The practice of ‘health reassurance’ marketing:

• "It is clear, based on their internal research documents, reports, memoranda, and letters, that Defendants have known for decades that there is no clear health benefit from smoking low tar/low nicotine cigarettes as opposed to conventional full-flavor cigarettes. … Despite this knowledge, Defendants extensively—and successfully—marketed and promoted their low tar/light cigarettes as less harmful alternatives to full flavor cigarettes. … By engaging in this deception, Defendants dramatically increased their sales of low tar/light cigarettes, assuaged the fears of smokers about the health risks of smoking, and sustained corporate revenues in the face of mounting evidence about the health dangers of smoking." United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) paras 2627-2629 ^[3].

The practice of ‘health reassurance marketing’ was also recognised in Philip Morris v. Uruguay, a case brought by Philip Morris under a 1988 bilateral investment treaty between Switzerland and Uruguay ^[4]. In this case, Philip Morris challenged Uruguay’s tobacco packaging laws restricting the use of brand variants. In rejecting this challenge and finding in favour of Uruguay, the investment tribunal noted internationally available evidence that tobacco companies had misled consumers through the use of health reassurance marketing:

• "At the time the measures were adopted, evidence was available at the international level regarding in particular consumers’ misperception of the health risks attached to “light” and “lower tar” cigarettes (so called “health reassurance” cigarettes). That evidence included the tobacco industry’s own records, including those of PMI, showing that “cigarettes brand variants … were strategically positioned to offer health reassurance.” – Philip Morris Brands Sàrl v Oriental Republic of Uruguay (2016) ICSID Case No. ARB/10/7, para 392 ^[4].

Tobacco industry ‘evidence’ in litigation

The tobacco industry often argues that tobacco control measures will infringe its legal rights, and threatens, or actually initiates, litigation to challenge such measures. In doing so, it frequently prepares its own evidence about whether or not a measure is ‘working’.

Courts have been highly critical of the low quality, and sometimes the misleading character, of this evidence.

The strongest illustration of such scrutiny is provided by the UK standardised packaging litigation in the High Court and Court of Appeal of England and Wales ^[1]. This case concerned a challenge by four major tobacco companies to the UK standardized tobacco regulations on 17 grounds, including property interests and whether or not the policymakers had adequately considered the industry evidence. In rejecting the challenge on all grounds, the High Court extensively considered the industry evidence, and stated:

• "As a generality, the Claimants’ evidence is largely: not peer reviewed; frequently not tendered with a statement of truth or declaration that complies with the [Civil Procedure Rules]; almost universally prepared without any reference to the internal documentation or data of the tobacco companies themselves; either ignores or airily dismisses the worldwide research and literature base which contradicts evidence tendered by the tobacco industry; and, is frequently unverifiable." – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 23 ^[1].
• "In conclusion, I am of the clear view that if and insofar as only “limited” weight was attached to the Claimants’ evidence then this was reasonable, justified and proper.” British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 375-376 (emphasis in original) ^[1].

These findings were later confirmed by the Court of Appeal.

In making these findings, the UK courts considered that the tobacco industry is known to create its own unreliable evidence to advance its commercial interests, including as recognised in WHO FCTC article 5.3 and its guidelines:

• "The analysis conducted of these documents by bodies such as WHO, and by the US courts, has led to some stark and, from the perspective of public health, unpalatable conclusions: in particular that the outward facing public statements of the tobacco companies are contradicted by their own inward facing private deliberations and analyses. One instance of this concerns the claim by the tobacco companies that they do not market their products towards children. This proposition (repeated in this litigation) has been rejected in the US courts and by the WHO upon the basis, inter alia, of internal tobacco company documents." – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 19 ^[1].
• "The conclusions which have arisen from the US courts about the sharp discord between what the tobacco companies think inside their own four walls and what they then say to the outside world (especially through experts), are so damning and the evidence of the discord so compelling and far reaching that it is not at all surprising that the WHO concluded that there was an evidence base upon which to found their recommendations to contracting states to apply vigilance and demand accountability and transparency in their dealing with the tobacco companies." – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 21 (emphasis in original) ^[1].
• “We do not accept that the judge fell into any legal error in relation to article 5(3) of the FCTC or the guidelines. He was entitled to treat them as telling in favour of subjecting the evidence of the tobacco companies to rigorous scrutiny.” – British American Tobacco v Secretary of State for Health (England and Wales Court of Appeal, 2016) para 205 ^[5].