Tobacco Industry Liability

BLOG 6.5.2024

Many of us know that the tobacco industry is morally and ethically wrong. But fewer people know that often the actions of the tobacco industry are also legally wrong. The tobacco treaty, the WHO FCTC, highlights the use of judicial systems as an important tool for tobacco control.

The actions of the tobacco industry are often legally wrong

The WHO Framework Convention on Tobacco Control (WHO FCTC) is the world’s first international public health treaty. It entered into force in 2005, and has since become one of the most rapidly and widely embraced treaties in United Nations history. The FCTC contains substantive Articles; sort of “subsections,” that address specific tobacco related topics.

Article 19 of the FCTC focuses on Liability and provides for two types of litigation: civil and criminal.

In some judicial systems (and within the context of the FCTC), civil law refers to disputes between individuals, organizations, or between the two, in which compensation (fines) is awarded to the victim. A large group of lawsuits in the United States, where people who smoked or their family sued the tobacco industry, are civil suits. Many of those suits were settled under the Master Settlement Agreement (MSA).

Criminal law refers to crime and the legal punishment of criminal offenses, which could include fines, business penalties, or even incarceration. This type of judicial action is new to tobacco control, but gaining momentum, in particular with a case out of the Netherlands. Advocacy groups, led by Sick of Smoking, encouraged a prosecutor to bring criminal charges against the tobacco corporations for fraud, manslaughter, and attempted murder. Unfortunately, the appeals court declined to force the prosecutor to file charges. Despite the lack of a legal victory, this case was a public relations victory. It changed public opinion about tobacco and the industry and provided an example to others that criminal liability against tobacco corporations is possible.  

A case could focus on different aspects of harms caused by tobacco or the tobacco industry

There are also other options that don’t fall cleanly within “civil” or “criminal” cases, but could still be encompassed under Article 19. For example, a human rights case is one brought against a government for failing to protect the rights of its citizens. In that case, an individual could sue the government for failing to protect their right to health from the harms caused by a tobacco corporation. Additionally, some types of cases are deemed “administrative,” such as the lawsuit in the United States, brought by Action on Smoking and Health (ASH USA) and the African American Tobacco Control Leadership Council (AATCLC), against the United States Food and Drug Administration (FDA) for failing to ban menthol flavoring in cigarettes.

In addition to whether a case is civil, criminal, human rights, administrative, or some combination, a case could focus on different aspects of harms caused by tobacco or the tobacco industry, for example a children’s rights case for targeted advertising to children, a civil case against the tobacco industry for harm to the environment (as is currently happening in the city of Baltimore), or many other combinations. There are many different productive legal paths forward.

The tobacco industry has been utilizing the courts for decades to intimidate and crush tobacco control progress

Article 19 is one of the most under-utilized Articles of the FCTC. Fortunately, at the most recent Conference of the Parties (COP 10) of the FCTC, a gathering of the Parties to the Treaty, the Parties adopted a Decision on Article 19. This Decision (FCTC/COP10(13)) will result in the reformation of an Expert Group on Liability, and calls on that Expert Group to collect information on liability, to support Parties in strengthening their liability regimes, to support Parties in collecting evidence, and other tasks that will greatly support the use of the judiciary in tobacco control around the world.

The tobacco industry has been utilizing the courts for decades to intimidate and crush tobacco control progress. It’s time that the public health community fight back with our own “proactive litigation.” “Proactive litigation” is a tool in the public health arsenal, and one that should be utilized much more frequently.