THE LAW - Using the criminal law against the tobacco companies

It’s only a matter of time before criminal prosecutions of tobacco companies begin in Australia, according to Jonathan Liberman IN APRIL 2002, British American Tobacco Australia became the first tobacco company in Australia to be ordered to pay compensation to a person dying of smoking-related disease. Rolah McCabe, a 51 year old lung cancer sufferer who had begun smoking at age 12 (in other words, had been a typical smoker), had sued BAT, claiming that the company had acted negligently and was liable for the loss she had suffered. In the United States, such civil claims have yielded far more regular success than in this country. US juries are now routinely awarding massive and record amounts of damages in such cases, mostly in the nature of punitive damages — damages that are awarded to punish the defendant for its wrongdoing. When juries see previously secret internal tobacco industry documents that reveal the egregious conduct of the tobacco industry, they react with outrage and punish the industry severely. So far, litigation over the harm caused by the tobacco industry has been exclusively civil litigation — in other words, litigation in which individuals or classes of individuals sue to recover loss or damage they have suffered as a result of the conduct of another. Nowhere in the world has the tobacco industry yet been prosecuted under the criminal law for offences such as reckless conduct endangering life, recklessly causing serious injury, or negligent manslaughter. A firm line has so far been drawn. It is a line which is entirely arbitrary. It has no legal basis at all. In Australia, since 1950, tobacco products have taken over 700,000 lives prematurely (and unnecessarily). The most recent Australian Institute of Health and Welfare study puts the annual figure at 19,019 — that is, over 50 deaths a day. Of these, more than 4000 occur in middle age, with an average of 20 years of life lost. Around 75 per cent of smokers have tried to quit, and around the same proportion say they would quit if it were painless to do so, with only 18 per cent saying they would continue to smoke. As the Sugeon General of the US reported, “Cigarettes and other forms of tobacco are addicting. Patterns of tobacco use are regular and compulsive, and a withdrawal syndrome usually accompanies tobacco abstinence … [T]he pharmacological and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine.” The overwhelming majority of smokers commenced smoking before turning 18 and about half of all regular smokers die as a result of their smoking. Smoking rates are particularly high among people with serious psychiatric illnesses, such as schizophrenia, who may be smoking primarily to self-medicate. And all of this is, of course, known to the tobacco industry. How has an industry been allowed to kill so many people over such a long period of time? How has it been allowed to get rich on the back of a product that is so addictive and so lethal; that is overwhelmingly first used in childhood, and then continued overwhelmingly into adulthood because of addiction? How has it not yet been brought to account under the criminal law? The most common answer to these questions seems to be this: “Because the tobacco industry acts perfectly legally. How can you be prosecuted for selling a legal product?” The answer is a powerful one, but it is wholly spurious. In reality, the law is concerned with conduct. Products are not legal or illegal; only conduct has legal status. The law examines the conduct of human actors — whether as individuals or corporations — and assesses its legality. Where the conduct contravenes the criminal law, the law punishes the actor. The conduct of the tobacco industry — much of which has been put before, and so enraged, jury after jury in the US — includes: • deliberately obfuscating — through public statements, lobbying and misleading advertising — the reality of the dangers and addictiveness of tobacco products; • developing and using techniques which enable the precise control of nicotine delivery to smokers, and designing products in ways that make it more likely that people will become addicted to them; • suppressing the development of less harmful products out of a fear this would effectively constitute an admission that existing products were harmful; • using misleading terminology such as “low tar”, “lights” and “milds” in the knowledge that consumers mistakenly believe these to be less harmful than “regular” products; • using marketing techniques either deliberately targeted at children, or in the knowledge that such techniques act strongly and persuasively upon children and that the overwhelming majority of the industry’s market commence smoking in childhood; • failing to disclose the full range and magnitude of the health risks of use of the product; • and, in particular, failing to disclose the risks of the following conditions: (a) conditions where what is lost is of a different nature to what is lost if the conditions generally warned of are suffered – such as damage to women’s reproductive health, miscarriage, impotence in men, sudden infant death syndrome, blindness, deafness, Buergers disease (leading to limb amputation), rheumatoid arthritis, and loss of bone density; and (b) conditions where early detection and action – which would be enhanced by information – may make the difference between dying and surviving, such as bladder cancer and bowel cancer; and • funding and conducting deliberately biased scientific research, and suppressing or doctoring damaging scientific research. In other words, it has been consumer fraud on a grand scale, and consumer fraud that has resulted in extraordinary numbers of addictions and premature deaths. The role of punishment that US juries have taken upon themselves in civil trials is one that, in Australia, is better performed under the criminal law. It is only a matter of time before criminal prosecutions, such as for reckless conduct endangering life, occur in Australia. Consequences of such prosecutions would include: significant fines; the confiscation of proceeds of crime; and a fundamental restructure of the way the tobacco industry is allowed to do business. The straight line that now connects profit with greater and greater addiction and death, and that has underlaid the criminal consumer fraud, would be dismantled. And a harm minimisation regulatory approach to tobacco, under which individuals can get their cigarettes, but companies do not have the incentive to exploit them (and, so doing, to addict and kill them) would be adopted. Tobacco has been a public health, economic and social tragedy. It has also been, and continues to be, a disgrace to the legal system. Jonathan Liberman is legal consultant to the VicHealth Centre for Tobacco Control. A footonoted version of this article is available from APO. For a full exposition of these arguments, see “Corporations that Kill: The Criminal Liability of Tobacco Manufacturers”, J. Liberman & J. Clough, first published in the Criminal Law Journal, Aug 2002, 26 (4), available at www.vctc.org.a