Tobacco politics

From Wikipedia, the free encyclopedia

Tobacco politics refers to the politics surrounding the use and distribution of tobacco.

In the United States, from the 1950s until the 1990s, tobacco industries wielded great influence in shaping public opinion on the health risks of tobacco. Despite the efforts of public health advocates, scientists, and those affected by smoking, both Congress and courts favored the tobacco industry in policy and litigation. It was not until the 1990s when public health advocates had more success in litigating against tobacco industries, including the 1998 Master Settlement Agreement between major tobacco companies and 46 state attorneys general. Although public opinion in the United States on cigarette smoking is more unfavorable, many large tobacco companies continue to find success internationally.

As of 2018, 169 states have signed the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC), which governs international tobacco control. However, many nations have had difficulty complying with the FCTC, with higher rates of smoking especially in developing nations. There are currently close to one billion smokers worldwide.

Taxation

Tobacco has been taxed by state governments in the United States for decades. The cumulative revenue of US tobacco taxation exceeded $32 billion in 2010, creating a major source of income for government.

The Contraband Cigarette Trafficking Act of 1978, a law which makes cigarette smuggling a felony punishable by up to 5 years in federal prison, is used to prosecute smugglers who avoid paying the taxes on cigarettes. The proposed Stop Tobacco Smuggling in the Territories Act of 2013 (H.R. 338; 113th Congress), if it passes during the 113th United States Congress, would update the Contraband Cigarette Trafficking Act to include American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam, which were previously not covered by the law. However, although the bill passed the House, it died in the Senate.

Lobby

Major tobacco lobbying companies include Altria Group (the parent company of Philip Morris USA), Philip Morris International, and Reynolds American.

20th Century

A. Bradford Hill, alongside Richard Doll, published several studies demonstrating a causal relationship between smoking and lung cancer.

 

In the early 1950s, several studies demonstrated a causal relationship between smoking and lung cancer. Worried that these studies would negatively impact tobacco consumption, tobacco companies met together and hired the public relations firm Hill & Knowlton. In 1954, tobacco companies published a joint press release called "A Frank Statement", which cast doubt on studies linking smoking and cancer and called for more research. In addition, these tobacco industries formed the Tobacco Industry Research Committee (TIRC), which challenged the science of smoking's relation to cancer. TIRC's first director was Clarence Cook Little, whose background in genetic science gave TIRC the appearance of scientific credibility. Other scientists who were skeptical of the causal link between smoking and cancer also joined the Scientific Advisory Board (SAB) of TIRC, although many of these scientists expressed concern over TIRC's strong denial of the link between cancer and smoking.

In 1964, the Surgeon General released a report confirming the causal link between smoking and cancer. Tobacco industries formed the Tobacco Institute, a trade association that acted as a lobby for tobacco industries in Congress. This lobbying was generally successful, as the tobacco industry was well-funded and southern states relied on tobacco revenues. For example, after the Federal Trade Commission (FTC) mandated warning labels on cigarette packages, tobacco companies successfully requested Congressional regulation in place of FTC regulation. The Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965 originally required cigarette warning labels to include a warning of cancer, but this was removed from the final bill.

Although tobacco companies had considerable influence throughout the twentieth century, anti-tobacco advocates also had some successes. In 1967, anti-tobacco advocates successfully argued that the fairness doctrine of the Federal Communications Commission (FCC) mandated time for anti-smoking advertisements equal to time allotted for smoking advertisements. In 1998, amidst growing evidence against tobacco companies, especially after the release of several industry documents, and growing public attitudes against smoking, states and tobacco companies entered a Master Settlement Agreement. This settlement included payments to states, restrictions on advertisements, and free access to internal industry research, although some have criticized the settlement for shielding the industry from future lawsuits, granting a monopoly to the largest tobacco companies, creating "client states" dependent on settlement payments, and shifting the cost of cigarettes to individual smokers rather than companies. In addition, tobacco companies have expanded their operations abroad, arguably undermining the impact of the settlement.

21st Century

Tobacco companies continue to play a large role in politics, although not as extensively as in the twentieth century. In 1990, the contributions of tobacco lobbies totalled to over $70 million. In 2017, tobacco lobbies paid $21.8 million. Tobacco companies tend to donate more to Republican candidates, contributing over $50 million since 1990 to Republicans, including Vice President Mike Pence. Proposals for relaxed electronic cigarette regulation, such as the Cole-Bishop Amendment in the 2017 omnibus bill and FDA Deeming Authority Clarification Act of 2017, have emerged, none have passed yet. In 2006, courts ordered tobacco companies to run anti-smoking advertisements, but tobacco companies delayed this order through multiple appeals until 2017. As of 2017, tobacco companies must now run advertisements detailing the negative health impacts of smoking for a year.

Litigation

The lawsuits brought against various tobacco manufacturers, attempting to hold them responsible for wrongful death, injury, or medical expenses related to cigarette smoking and other tobacco use. Cases have been brought both by individual plaintiffs and by government officials, including U.S. State Attorney General. Punitive damages for the plaintiff have often been awarded as a result of a successful litigation. However, the vast majority of court decisions have been in favor of the defendant tobacco companies.

History

The history of tobacco litigation in the United States can be divided into three waves: (1) from 1954 to 1973, (2) from 1983 to 1992, and (3) from 1994 until today. During the first two waves, tobacco companies had enormous success, winning all but one of their cases, with the only case they lost, Cipollone v. Liggett, being reversed.

During the first wave, a growing abundance of evidence linked tobacco to death and disease. Individual smokers filed lawsuits against the tobacco industry, claiming negligence in manufacturing and advertising, breach of warranty, and product liability. However, the tobacco industry responded by challenging the science of smoking causing disease and claiming that smokers assumed any risks.

During the second wave, plaintiffs charged tobacco companies with failure to warn about the addiction and disease risk of cigarettes and strict liability. The tobacco companies argued that people assumed the risks of smoking and that federal laws preempted state laws, which the lawsuits were filed under. In addition, the tobacco industry poured a massive amount of money into these cases, trying to overwhelm plaintiffs with legal costs. An internal memorandum by an attorney for the RJ Reynolds tobacco company described their strategy as, “To paraphrase General Patton, the way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all [of] his.”

The third wave of tobacco litigation was much more successful for plaintiffs, with plaintiffs winning 41% of cases between 1995 and 2005. It also saw a greater number and variety of lawsuits overall. State attorney generals charged the tobacco industry of using misleading marketing, targeting children, and concealing the health effects of smoking. These cases resulted in settlements across all fifty states in the United States.

Recently, there has been mixed success for plaintiffs in tobacco litigation. In Florida, a large class action lawsuit was rejected, because the court argued that each individual case must be proven. As a result, thousands of individual lawsuits were filed against tobacco companies, but many of these verdicts are now in appeal. Smokers have also challenged light cigarettes, alleging that tobacco companies falsely advertise light cigarettes as healthier. Tobacco companies argue that 'light' refers to the taste, not the filters, and also used preemption arguments. Although the Supreme Court ruled in Altria Group, Inc. v. Good (2008) that federal law does not preempt certain state consumer protection laws, no courts have ruled on these laws being violated.

Significant cases

• 1992: In Cipollone v. Liggett Group, Inc. the US Supreme Court held that the Surgeon General's warning did not preclude suit by smokers against tobacco companies on several claims, and that the federal laws on tobacco regulation aren't worded to override state laws.
• 1995: The Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) upheld the constitutionality of the federal Tobacco Products Control Act, but struck out the provisions which prevented tobacco advertising and unattributed health warnings.
• March 2001: The US Supreme Court affirmed the Circuit Court's ruling that the Food and Drug Administration could not class tobacco as a pharmaceutical, so could not control its production through the Food, Drug and Cosmetic Act. (FDA v. Brown & Williamson Tobacco Corp.)
• June 2002: A District Court in Kansas awarded $15 million in punitive damages against R.J. Reynolds Tobacco after calling the company's conduct "highly blameworthy and deserving of significant punishment." (David Burton vs. R.J. Reynold's Tobacco)
• June 2002: A Miami jury held three cigarette companies liable for $37.5 million in a lawsuit involving an ex–smoker who lost his tongue to tobacco–related oral cancer. (Lukacs vs. Philip Morris)
• October 2002: A Los Angeles jury issued $28 billion in punitive damages against Philip Morris. This was later reduced to $28 million. (Betty Bullock vs. Philip Morris)
• 2003: A Madison Country, Illinois jury awarded $10.1 billion against the tobacco company Philips Morris for deceptive cigarette advertising in a class action led by attorney Stephen Tillery (Price v. Philip Morris).
• 2004: A New York jury issued $20 million to the wife of a long-term smoker who died of lung cancer at the age of 57. This was the first time that a New York court had held a tobacco company liable for an individual smoker's death. (Gladys Frankson vs. Brown and Williams Tobacco Corp)
• 2005: In Imperial Tobacco v. British Columbia the Supreme Court of Canada found that the provincial Tobacco Damages and Health Care Costs Recovery Act, which allowed the government to sue tobacco companies, was constitutionally valid.
• 2007: Philip Morris USA v. Williams led to the US Supreme Court to tell the Oregon Court of Appeals to reconsider its earlier judgment and lower the case's punitive damages amount in light of State Farm v. Campbell. The appeals court ultimately upheld their original damages.
• 2008: The Altria Group v. Good US Supreme Court case said that state law is not preempted by a federal law regarding cigarette advertisement regulations.

Grounds of claims

Civil Rights

Tobacco companies have marketed menthol cigarettes specific to African Americans; groups have pursued civil rights remedies in court.

Design defects 

Claims of design defects allege that tobacco companies designed tobacco products with additional adverse health risks. Examples of design defects include cigarettes that increase addiction risks and deliberately choosing to not develop less harmful cigarettes.

In response, tobacco companies have argued that they have not intentionally made cigarettes more dangerous, but instead carefully and thoughtfully design the least hazardous tobacco product for smokers.

Strict liability 

Strict liability means that tobacco companies must be responsible for possible damages or injuries resulting from cigarettes.

Product liability 

The liability of the product lies on the manufacturer.

Depriving of health hazards information 

Lawsuits against tobacco companies have asserted that tobacco companies mislead the public on the risks of smoking, environmental smoke, and nicotine addiction.

Defenses

Volenti non fit injuria 

Volenti non fit injuria, or "to a willing person, no injury is done", is a common law doctrine which states, when applied to these cases, that there is no damage to someone who willingly places themselves in a position where they are negatively affected by tobacco consumption.

Contributory negligence 

Contributory negligence is a common law defense to a claim based on negligence, that before the cases, the adverse effects were unknown. This has been one of the commonly used defences. Most of them will assert that it was the plaintiff himself that has contributed to his own injury as he has prior knowledge of the harm associated with tobacco smoking.

Tobacco advertising fails to influence non-smokers

Tobacco companies argue that tobacco advertisements are intended for smokers choosing between brands of tobacco products. Moreover, advertising has a limited effect on influencing smoking behavior. Therefore, tobacco advertisements do not play a role in driving non-smokers to smoke.

Epidemiology cannot show causation

Tobacco companies claim that epidemiological evidence cannot show direct causation in individuals. This reasoning was used in the 2005 McTear v. Imperial Tobacco Limited case in Scotland, arguing that the plaintiffs could not reasonably prove that the plaintiffs’ smoking caused lung cancer. In addition, tobacco companies challenge the way epidemiological evidence is collected.

Tobacco politics and litigation outside of the United States

Introduction

Litigation also continues in several countries outside the United States. Citing third party reimbursement, several countries, such as Bolivia, Guatemala, Nicaragua, and Venezuela, have filed lawsuits both in the United States and in their own courts against tobacco industries. Individual suits have also been filed in a multitude of countries, including Argentina, Finland, France, Japan, Ireland, Israel, Norway, Sri Lanka, Thailand, and Turkey.

Framework Convention on Tobacco Control (FCTC)

The World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) represents an important landmark in international tobacco control governance. The treaty was formalized on February 27, 2005, and currently, 169 states have signed the treaty. The United States is one of seven countries that have signed but not ratified the FCTC. The FCTC encourages states to reduce tobacco production and use through measures like cigarette taxes, restrictions on advertising, clean air controls, and tobacco smuggling legislation.

Initially, the concept of an international tobacco control treaty received little enthusiasm. However, in 1998, Gro Harlem Brundtland became director general of the WHO, creating momentum for the FCTC. Organizations and events within the United States also played a key role in the creation and adoption of the FCTC globally. The American Public Health Association helped support the development of the FCTC, while the wave of successful tobacco litigation helped generate interest in tobacco control. In addition, the FCTC lacks mandates on transboundary tobacco issues. As a result, implementation of the treaty fell short, despite widespread ratification. In response, organizations such as Bloomberg Philanthropies and the Bill and Melinda Gates Foundation increased their philanthropic contributions to the WHO. This resulted in the creation of MPOWER, which focuses on implementation of FCTC.

Australia

In Australia, tobacco companies have faced several lawsuits, although not to the scale of litigation in the United States. In 1991, the Federal Court found advertisements denying environmental smoke to be misleading. In the 1999 case Nixon v. Philip Morris (Australia) Ltd, plaintiffs claimed tobacco companies misled them on the risks of smoking, although Courts ruled the case could not continue as representative proceedings (similar to class action lawsuits in the United States). Personal injury cases are less common in Australia, as unsuccessful plaintiffs must pay the legal fees of the defendant, less profit incentives exist for Australian lawyers, and momentum from successful tobacco litigation has not been generated.

McCabe v British American Tobacco (2002) was the first personal injury case outside the United States to win a verdict against a tobacco company. The plaintiff Rolah McCabe, who was diagnosed with lung cancer, claimed British American Tobacco Australia misled her in estimating the risk for smoking cigarettes. The verdict was later overturned, although McCabe died before the court proceedings finished. This case has been influential in litigation and legislation concerning document destruction, as British American Tobacco destroyed several documents in this case.

In 2005, a court-enforceable settlement between the Australian Competition and Consumer Commission (ACCC) and Philip Morris (Australia) Limited, British American Tobacco Limited, and Imperial Tobacco Australia Limited, was reached. The companies agreed to stop describing cigarettes as “light” and “mild” and provide $9 million for corrective advertising, in exchange for the ACCC to no longer pursue certain legal action against the companies. Afterwards, the companies started to describe cigarettes with terms such as “rich”, “classic”, “smooth”, “fine”, “ultimate”, “refined”, and “chilled”.

Tobacco companies have not been the only defendants in tobacco litigation. In cases regarding environmental smoke, the defendants are often the owners or managers of locations where environmental smoke occurs. In Meeuwissen v Hilton Hotels of Australia Pty Ltd (1997), the plaintiff argued environmental smoke in a nightclub constituted unlawful discrimination based on disability, and was awarded $AU2000 in compensation. Aside from disability discrimination, environmental smoke lawsuits have also cited common law negligence, occupational health and safety law, and occupiers’ law. The result of such litigation has been increased bans on smoking in the workplace and certain public places.

Tobacco companies have also initiated litigation domestically and internationally, claiming government measures against tobacco have infringed on their commercial rights. In 2011, the Australian government introduced plain packaging legislation. Philip Morris Asia Limited challenged this directive under a bilateral trade agreement with Hong Kong, but did not succeed. Cuba, Honduras, Dominican Republic and Indonesia also filed a World Trade Organization complaint, but the WTO upheld the plain packaging law in 2017.

China

Although China faces many tobacco-related health problems, with over 1.2 million tobacco-related deaths per year, the government has had a limited response. The tobacco industry provides 7 to 10 percent of tax revenue for the government, while also providing many jobs in agriculture, sales, and other businesses. In addition, the government considers anti-smoking measures as potentially destabilizing, given the resentment and unrest it could cause.

The tobacco industry and some bureaucratic institutions oppose anti-smoking measures. In China, the tobacco industry is heavily monopolized. The largest firm is China National Tobacco Corporation (CNTC), which is also the world’s largest tobacco firm and makes up about 32 percent of the global market. The CNTC is described as a “de facto industrial and business agency” as it is also run by the national regulatory agency, the State Tobacco Monopoly Administration (STMA). Some have criticized the STMA/CNTC for the overlap between government and business (zhengqi bu fen).

Some regional governments also oppose tobacco control policies. For example, in Yunnan Province, tobacco is the largest industry, with tobacco taxes supplying one half of its local government revenue. Other provinces like Guizhou, Henan, and Sichuan, also rely heavily on revenue from tobacco production.

The Chinese government has implemented some tobacco control measures. Through the 1980s and 1990s, the national government and local governments implemented various bans on smoking in public places. In 2005, the PRC ratified the Framework Convention on Tobacco Control (FCTC). In 2009, the government raised the tobacco consumption tax, although this did not reduce smoking, as the government required wholesale and retail prices to remain the same. In 2011, the National People’s Congress (NPC) passed the 12th Five-Year Plan, which included a call to completely ban smoking in public places. However, many of these laws have been weakly enforced.

Japan

After the Meiji Restoration in the nineteenth century, Japan began taxing tobacco. Historically, tobacco revenue has been used to fund military endeavors. In the late nineteenth century, following the deficits from the Sino-Japanese War and in preparation for the Russo-Japanese War, the government imposed a monopoly over tobacco production. In 1985, this monopoly was privatized into what is now Japan Tobacco (JT), although the government still exhibits great influence over and benefits from tobacco tax revenue. In 1999, Japan Tobacco created its international branch, Japan Tobacco International (JTI). JTI is now the world’s third largest transnational tobacco corporation (TTC).

In 2014, the Tokyo High Court ruled that there was not definitive scientific evidence that passive smoking causes cancer, although the evidence they were presented was discredited outside of Japan.

In 2017, in preparation for the 2020 Summer Olympic and Paralympic Games hosted in Tokyo, the Health, Labor and Welfare Ministry called to ban smoking in public facilities. Japan has some of the least stringent tobacco control measures in the world. The food service industry, which includes public premises like restaurants and bars, strongly opposed this measure. In 2018, the plan for a total smoking ban was revised to include certain exceptions, such as separate rooms for smokers in restaurants in exempting “small-scale” establishments.

Russia

In Russia, smoking is very prevalent, with tobacco industries wielding great influence in Russian politics. Several Russian Duma members have also worked within the tobacco industry. After a protest caused by cigarette shortages in 1990, transnational tobacco companies began to invest in the Russian tobacco market, particularly in production. This growth in industry has been accompanied by an increase in smoking, and Russia has the highest rates of smoking in Europe.

Although the Russian government has attempted to implement tobacco prevention and control programs, most of these have had limited success. In the mid-1990s, the Federal Ministry of Health recommended several tobacco control measures, but failed to provide funding for their enactment. In 1999, the Duma introduced national tobacco control legislation. However, this legislation was substantially watered down after measures like limitations on advertisement were removed. In 2006, the Duma passed limited tobacco advertising regulations, which still allowed for small warnings on cigarette packs without graphics. In 2010, Prime Minister Putin approved the “Concept of the Government Policy on Combating Tobacco Use for 2010-2015.” Although the concept set forth several goals and concrete policy suggestions, such as complete bans on all tobacco advertising, it was not legally binding. When the Ministry of Health and Social Development (MoHSD) proposed tobacco legislation based on the concept, the bill was suspended within two days. Although many Russian representatives helped develop the Framework Convention on Tobacco Control (FCTC), Russia was one of the last countries to sign the FCTC.

In 2017, the Ministry of Health proposed a cigarette ban that would apply to all born after 2014, although some have expressed concern that a ban would result in a cigarette black market.