Court-Cases-Against-Tobacco-Industry
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Litigation against tobacco industry - tactics and fallout

Litigation against tobacco industry - tactics and fallout
Presentation by Hemant Goswami (Burning Brain Society)

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Court-Cases-Against-Tobacco-Industry Court-Cases-Against-Tobacco-Industry Presentation Transcript

  • Tobacco industry tactics – Influence over policies –Use of litigation as a tool
  • Litigation & Tobacco Control Use of litigation as a means of achieving public health policy goals Litigation can complement to a broader, comprehensive approach to tobacco control policy making Though it is believed that public health goals are more directly achievable through the political process than through litigation, but tobacco control being a dynamic public health problem with a third party like the tobacco corporate playing a very active role in disturbing the policies so it is now believed that the boundaries between litigation and the politics of public health in relation to tobacco control has blurred. Over a period of time it has been proved that litigation in tobacco control has indeed laid the foundation of meaningful policy changes.
  • Is the Industry Prepared? Any Doubts???
  • Industry Preparedness - 1989
  • Is the Industry Prepared?
  • Is the Industry Prepared? Industry strategy in 80’s to counter second- hand smoke issue
  • Is the Industry Scared? That’s why the tobacco industry is paying over 250 Billion U$ Dollars to all 50 states in USA as damages (Settlement) Though the industry earned some longevity but the industry is definitely on way out
  • Master Settlement Agreement Under the Master Settlement Agreement, seven tobacco companies agreed to change the way tobacco products are marketed and pay the states an estimated $206 billion (+ Other Costs). The tobacco companies also agreed to finance a $1.5 billion anti-smoking campaign, open previously secret industry documents, and disband industry trade groups which Attorneys General maintain conspired to conceal damaging research from the public.
  • The GTC Case in California THEREFORE, default having been entered by the clerk against GTC, as requested by Plaintiff, JUDGMENT is accordingly entered in favor of the Plaintiff and against GTC with respect to all claims, AS FOLLOWS: A. GTC shall, within fifteen (15) days of this Order, place into a Qualified Escrow Fund the following amounts as such amounts are adjusted for inflation as required by California Health and Safety Code section 104557(a)(2): Sales during the year 2002: (25,671,900 units x $0.0136125) plus 12.97355% for inflation for a total of $294,795.31. Sales during the year 2003: (34,374,640 units x, $0.0167539) plus 16.3627565% for inflation for a total of $670,133.61. B. GTC shall, within fifteen (15) days of this Order, pay civil penalties in the amount of 300% of the escrow amounts improperly withheld, for a total of$3,192,986.76 for knowingly violating California Health and Safety Code section 104557(a)(2), (c), by failing to certify to the Attorney General for the State of California that it is in compliance with California's reserve fund statute and for knowingly failing to establish a qualified escrow fund as defined under California Health and Safety Code section 104556(1) and knowingly failing to deposit sufficient escrow funds into a qualified escrow fund as required under California Health and Safety Code section 104557. C. Pursuant to Business and Professions Code section 17206, GTC shall, within fifteen (15) days from the date of this Order, pay a penalty of$2,500.00 for each violation of Business and Professions Code section 17200 alleged in the Third Cause of Action, for a total assessed penalty of $50,000 in addition to the penalty specified in Paragraph C of this judgment. D. GTC shall, within fifteen (15) days from the date of this Order, shall appoint an agent for service of process in California (pursuant to Revenue & Taxation Code section 30165.1(f)(1) for enforcement of this judgment and order until this judgment is satisfied, the order is obeyed and the injunction is dissolved. E. -------------
  • Initiating Through Litigation SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No. 316 OF 1999 Murli S. Deora … Petitioner Versus Union of India and Others … Respondents ORDER Heard the learned counsel for the parties. Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then — why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously - ‘yes’. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution. The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provides, “Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are also reported to be among the ill-effects of cigarette smoking.” Similarly, the statement of objects and reasons of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, provides, “Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs.13,500/- crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry”.
  • Initiating Through Litigation SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is required to be prohibited. On this submission, we sought response of the Central Government. As no affidavit was filed during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the matter. Today also, when the matter came up for hearing, no response is filed on behalf of the Central Government. However, learned Attorney General with all emphasis at his command submitted that appropriate order banning smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for other respondents also supported the same. In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irritants, asphyxiates and smoke particles which are the cause of many diseases including the cancer. It is alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisation is stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal diseases to the mankind. It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to have passed Act No.14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places. Learned Attorney General for India submits and all the counsel appearing for the other parties agree that considering the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment. The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smokers.
  • Initiating Through Litigation SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely: • Auditoriums • Hospital Buildings • Health Institutions • Educational Institutions • Libraries • Court Buildings • Public Office • Public Conveyances, including Railways. Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this order by electronic as well as print media to make the general public aware of this order of prohibition of smoking. We further direct the Registrar General to intimate the State Governments/Union Territories as well as the Commissioners of Police as mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance report in this Court within five weeks from today. Union of India shall also file its response at the earliest. List after six weeks. …………………………J. (M.B. Shah) New Delhi; ………………………….J. November 2, 2001. (R.P. Sethi)
  • Implementation Through Litigation The Civil Writ Petition in 2005 filed in Punjab and Haryana High Court (India) resulted in one of the tobacco companies dropping the name of its cigarette brand for “Bravery Award” ceremonies. The cognizance by the court also saw initiation of policy shift on tobacco control in the region.
  • Implementation Through Litigation The case of “Pictorial Warnings” in India Despite the industries displeasure, a High Court in India took up the case after which the Pictorial Warning notification was issued …….. Unfortunately the Public Interest Writ Petition was withdrawn for certain unfortunate reasons.
  • Litigation to Fill the Gaps
  • Standard Tricks Numer Uno FREEDOM OF CHOICE ARGUMENT Counter Argument If Freedom of Choice be an argument then it also applies to all hard drugs too – Why limit to Tobacco
  • Standard Tricks Commonly Used VIOLATION OF FREEDOM OF EXPRESSION Counter Argument Right to Life a bigger right – It’s a constitutionally protected right in all countries of the world Glaring Example USA – Non Ratification of FCTC by citing “First Amendment”
  • Standard Tricks Commonly Used VIOLATION OF FUNDAMENTAL RIGHT TO PROFESS ANY TRADE Counter Argument All trade and professions have to function within the ambit of the law and the Government has all the powers to restrict the trade of any good. Not only this in case of any product harmful/deleterious to environment/health, the Government can all together ban it. Example Pictorial warning case
  • Newer Tricks Common Trick (Overt) GETTING CONTRADICTIONS IN THE DELEGATED LEGISLATION (And then Challenge them in court) Results Such Laws get struck in the court and are found unconstitutional/illegal as a result it makes a bad precedence Counter-Counter Trick of the Industry Get a Writ/Case filed in the court and let it appear to be pro-tobacco control – The results of such writs in a way help the tobacco industry – Example the Fire Safe Cigarettes
  • Newer Tricks Going to International Tribunal / Courts on Trade Phillip Morris Case in Thailand State of Philippines Vs. Thailand (Even EU has joined as a party)
  • The Different Games in the Court
  • The restriction of “depiction of smoking” smoking” in movies case IN THE HIGH COURT OF DELHI AT NEW DELHI Present: Mr. Sandeep Sethi, Sr. Adv. with Mr. Pradyuman Dubey, Mr. C.M. Lal, Advocates for the petitioner, in WP(C) 18761/2005 and WP(C) 23716/2005. Mr. Arvind Datar, Sr. Adv. with Mr. Nikhil Nayyar, Mr. Ankit Singhal, Advocates for the petitioner in WP(C) 7410-11-2006. Mr. P.P. Malhotra, Additional Solicitor Generarl with Mr. Suresh Kait, Mr. Mukul Gupta, Advocates for Union of India. WP(C) 18761/2005, WP(C) 23716/2005 and WP(C) 7410-11/2006 Since we have differed on the constitutional validity of the Rules of the Cigarettes and other Tobacco Products (Prohibition of advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 as amended in 2005 framed under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 vide our separate judgments delivered today on 7th February 2008, let this matter be placed before Hon'ble the Chief Justice, to nominate another learned Single Judge to resolve the difference of opinion. Interim order to continue until further orders. A copy of the judgments be given dasti to the learned counsel for the parties, under the signatures of the Court Master. MUKUL MUDGAL, J SANJIV KHANNA, J February 07, 2008/dr
  • The “Racketeer Influenced and Corrupt Act” Organizations Act” Verdict This ruling is the culmination of a lawsuit the U.S. Department of Justice filed under the civil racketeering (RICO) law on September 22, 1999, to hold the tobacco companies legally accountable for decades of illegal and harmful practices. The trial in the case lasted from September 21, 2004, to June 9, 2005. Judge Kessler's 1,683-page final opinion powerfully and thoroughly details the tobacco companies' unlawful activity and the devastating consequences for our nation's health over more than 50 years. quot;(This case) is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community... In short, Defendants have marketed and sold their lethal products with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted,quot; Judge Kessler wrote (pages 3-4 of the opinion). Judge Kessler issued a Final Judgment and Remedies Order that: Prohibits the tobacco companies from committing acts of racketeering in the future or making false, misleading or deceptive statements concerning cigarettes and their health risks. Bans terms including quot;low tar,quot; quot;light,quot; quot;ultra light,quot; quot;mild,quot; and quot;naturalquot; that have been used to mislead consumers about the health risks of smoking and prohibit the tobacco companies from conveying any explicit or implicit health message for any cigarette brand. Requires the tobacco companies to make corrective statements concerning the health risks of smoking and secondhand smoke and their deceptive practices through newspaper and television advertising, their web sites and as part of cigarette packaging. Extends and expands current requirements that the tobacco companies make public their internal documents produced in litigation. Requires the tobacco companies to report marketing data annually to the government.
  • The Solution Tobacco Companies have explored all corners of the legal system but still……… There are limited versions of the GAME (More or less similar across the world) The way to beat them in their own game is to BE BETTER PREPARED (Understand all the versions of the legal games the industry plays) & BE PROACTIVE AND AGRESSIVE