The 'Tobacco Wars': Global Litigation Strategies

Abstract:     
The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and advertising restrictions; and promotes transparency, by compelling discovery of internal industry documents.

Tobacco litigation frequently has been used as a method for promoting tobacco control in the United States. Litigation is less common outside the United States, but increasingly advocates have brought innovative lawsuits abroad. This commentary explores global tobacco litigation strategies, with 4 key elements: compensation/recovery, advertising restrictions, criminal liability, and public interest writ litigation.

The commentary argues that perhaps the most important effect of tobacco litigation has been to transform public and political perceptions about risk and responsibility in smoking, making clear what manufacturers knew, how they concealed this knowledge, and how they manipulated consumers. Tort law has reframed the debate from personal to corporate responsibility. However, the industry still manages, at least in the political realm, to alter the discourse to one involving freedom of choice for the smoker, the evils of big government, unfair taxation, and the influence of trial lawyers.

Furthermore, now that the tobacco industry is aggressively seeking new markets in the poorest, least-regulated countries, litigation will take on new importance. The most promising strategies will use a human rights framework, arguing that tobacco is so detrimental that it violates the rights to health, life, and a sanitary environment.

Keywords: Framework Convention on Tobacco Control, public health, global health

Accepted Paper Series