Tobacco Control Playbook

This special issue draws on some of the judicial statements that have been made about the tobacco industry in litigation. It covers 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 has defended itself against litigation, for example in class actions brought by persons suffering from tobacco-related illness.

The first paper was published in December 2017. It looked at the industry’s deliberate deception of the public and their use of so-called ‘evidence’ in litigation.

This paper presents: 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 legal processes that aim to improve tobacco control.

The nature of the legal interests asserted by the industry in litigation

Courts have also made a number of statements about the true nature of the interests that the tobacco industry aims to protect when bringing legal challenges against public health regulation.

For example, in British American Tobacco v Secretary of State for Health, BAT argued that standardised packaging of tobacco products interfered with its property rights in its trademarks. In rejecting these claims, the High Court of England and Wales stated that:

• ‘The Claimants seek compensation for the loss of the ability to promote a product that is internationally recognised as pernicious and which leads to a health “epidemic”. It is as such unlike any other case in which the Courts have granted compensation. …’ – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 794 ^[1].
• ‘The property rights in the present cases directly serve the promotion of a trade which is profoundly adverse to the public interest, and acknowledged by all concerned to be so because of the harm the products cause to health.’ – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 797 ^[1].
• ‘There is no precedent where the law has provided compensation for the suppression of a property right which facilitates and furthers, quite deliberately, a health epidemic. And moreover, a health epidemic which imposes vast negative health and other costs upon the very State that is then being expected to compensate the property right holder for ceasing to facilitate the epidemic.’ – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 38 ^[1].
• ‘In my judgment the law is very clear: It is no part of international, EU or domestic common law on intellectual property that the legitimate function of a trade mark (i.e. its essence or substance) should be defined to include a right to use the mark to harm public health, and the Member States have a broad power to adopt health legislation even when it intrudes upon other rights belonging to manufacturers of products which cause the health problem. The technical arguments to the contrary were advanced with forensic skill but stripped down to below their respectable veneers their bare essentials are exposed as unsustainable.’ – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 40 (emphasis in original) ^[1].
• ‘So far as the latter is concerned the protection of public health is recognised in law as one of the highest of all public interests that can be prayed in aid …. To be set against this are the rights of the tobacco manufacturers in their trade marks and other property rights to use those marks to promote the consumption of tobacco. The bottom line interest of the tobacco companies in the right to promote their property is “profit”.’ – British American Tobacco v Secretary of State for Health (England and Wales High Court, 2016) para 682-683 (emphasis in original) ^[1].

Similarly, courts in Canada have considered the nature of the tobacco industry’s interests in commercial expression, in the context of legal challenges to advertising, promotion, and sponsorship bans. They have contrasted the high importance of life and health with the considerably less important interest of the tobacco industry in continuing to market a harmful and addictive product. They have emphasised the low value of commercial expression when it relates to marketing of such products:

• ‘On the one hand, the objective is of great importance, nothing less than a matter of life or death for millions of people who could be affected, and the evidence shows that banning advertising by half-truths and by invitation to false inference may help reduce smoking. The reliance of tobacco manufacturers on this type of advertising attests to this. On the other hand, the expression at stake is of low value — the right to invite consumers to draw an erroneous inference as to the healthfulness of a product that, on the evidence, will almost certainly harm them.’ – Canada (Attorney-General) v JTI-McDonald Corp, concerning a tobacco industry challenge to a ban on mass-media and ‘lifestyle’ advertising of tobacco products (Canadian Supreme Court, 2007) para 68 ^[2].
• ‘Unlike most, if not all other consumer products that are lawful to sell or buy, nicotine is a highly addictive poison that is unsafe when consumed as intended. … When expression is used for the purpose of selling harmful and addictive products, its value becomes tenuous … The nature of the expressive activity, although deserving of scrutiny is not close to the core values underlying s. 2(b) whereas the legislation might reduce tobacco consumption and thereby reduce tobacco-related disease, disability and death.’ – R v Mader’s Tobacco Store, concerning a tobacco industry challenge to a ban on retail display of tobacco products (Provincial Court of Nova Scotia, 2013) para 95-96 ^[3].

Tobacco industry as compared to makers of other consumer products

Courts have responded to arguments that a regulation ‘discriminates’ against the tobacco industry by pointing out the uniquely harmful nature of tobacco products and the need to regulate the tobacco industry accordingly:

• ‘However, tobacco manufacturers and other manufacturers exerting adverse effects on human health are not, given the intensity of the effects induced by smoking on human health, placed in a similar situation, so it is open to Parliament, with the aim of strengthening the protection of public health, to apply different treatments.’ Conseil d’Etat, 23 décembre 2016, Société JT International SA, Société d'exploitation industrielle des tabacs et des allumettes, société Philip Morris France SA et autres, concerning a tobacco industry challenge to tobacco plain packaging laws in France (translation adapted from unofficial translation by Campaign For Tobacco Free Kids, available here para 33 ^[4].
• ‘The tobacco industry cannot be compared to manufacturers of other products. The need for regulation and control is apparent from the Tobacco Act. Players in the tobacco industry cannot expect equal treatment with other industries as due to the harmful effect of tobacco products, the State is under obligation to protect the health of its citizens, both consumers and non-consumers of tobacco products’ British American Tobacco Kenya Ltd v Cabinet Secretary for Health, concerning a tobacco industry challenge to Kenya’s Tobacco Control Regulations (Court of Appeal of Kenya, 2017) para 64 ^[5].

Conduct of the tobacco industry in frustrating legal processes

Finally, courts have been highly critical of the conduct of the tobacco industry in litigation and in arranging their corporate affairs so as to prevent those affected by tobacco-related disease from claiming compensation.

• ‘The foregoing Findings of Fact demonstrate that, over the course of approximately fifty years, different Defendants, at different times, took the following actions in order to maintain their public positions on smoking and disease-related issues, nicotine addiction, nicotine manipulation, and low tar cigarettes, in order to protect themselves from smoking and health related claims in litigation, and in order to avoid regulation which they viewed as harmful: they suppressed, concealed, and terminated scientific research; they destroyed documents including scientific reports and studies; and they repeatedly and intentionally improperly asserted the attorney-client and work product privileges over many thousands of documents (not just pages) to thwart disclosure to plaintiffs in smoking and health related litigation and to federal regulatory agencies, and to shield those documents from the harsh light of day.’ United States v Philip Morris USA, Inc (US District Court, District of Columbia, 2006) para 4034 ^[6].
• ‘There is thus no doubt that [Imperial Tobacco Limited (ITL)] used the destruction as a way to avoid producing the documents, based on the assertion that they were not in its control or possession. … There is enough for us to conclude that ITL's actions in this regard constitute an unacceptable, bad-faith and possibly illegal act designed to frustrate the legal process.’ Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 369 ^[7].
• ‘We therefore find that it was ITL's intention to use the lawyers' involvement in order to hide its actions behind a false veil of professional secrecy….This constitutes an unacceptable, bad-faith and possibly illegal act designed to frustrate the legal process.’ Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 377-378 ^[7].
• ‘The Interco Contracts [which moved assets between different parts of the corporate structure so that they would not be available to pay compensation claims] represent a cynical, bad-faith effort by [JTI-McDonald Corp] to avoid paying proper compensation to its customers whose health and well-being were ruined, and the word is not too strong, by its wilful conduct.’ Létourneau v JTI-McDonald Corp (Superior Court of Québec, 2015) para 1103 ^[7].