11 Rettsstillingen og tobakksskadesaker i en del andre land

Redigert av forsker cand. jur. Nicolai V. Skjerdal

11.1 Kort om det innhentede materiale

De store rettssakene mot tobakksselskapene i USA i løpet av 1990-årene, har gitt ny kunnskap om tobakksproduktenes karakter og skadevirkninger. I dag er tobakkserstatningssakene i ferd med å spre seg til hele verden, og som en del av utredningsarbeidet har det vært naturlig å se noe nærmere på dette.

Vi har forsøkt å innhente informasjon som – for det første – gir en oversikt over tobakksreguleringen i del land, og – for det andre – om eventuelle søksmål mot tobakksindustrien. Søksmålsspørsmålet reises imidlertid verden over, og det har ikke vært mulig å gi en uttømmende gjennomgang av alle aktuelle land. Det er dessuten grunn til å understreke at spørsmålet om tobakksindustriens erstatningsrettslige ansvar i det enkelte land, er under stadig utvikling.

Det enkelte lands bidrag som er gjengitt nedenfor, er skrevet av personer som har særskilt innsikt i tobakksregulerings- og/eller tobakkserstatningsspørsmålet. Bortsett fra bidraget fra Danmark, er alle skrevet på engelsk.

Resymeene varierer noe, både i opplegg og omfang. De er således kun ment å gi et lite innblikk i det enkelte lands rettsstilling. For ordens skyld gjør vi oppmerksom på at vi ikke har kunnet foreta noen kvalitetskontroll av den innhentede informasjon.

Foreløpig ser det ut til å være meget begrenset med litteratur og fremstillinger om hvordan tobakkserstatningsspørsmålet stiller seg utenfor USA. Mange av de bøkene som det er vist til i gjennomgangen av USA (se særlig utredningens kapittel 6–7) er også aktuelle for den engelske tobakksindustri (særlig for selskapet British-American Tobacco, som er eier av Brown & Williamson). Av øvrige kilder vi har kommet over under utredningsarbeidet, kan nevnes:

• Tobakksindustrien i Canada : COLLISHAW, NEIL E.: «From Montreal to Minnesota – Following the Trail of Imperial Tobacco’s Documents», Physicians for a Smoke-Free Canada, 1999.

• Tobakksindustrien i Tyskland : HIRSCHHORN, NORBERT: «Shameful Science: Three Decades of the Tobacco Industry’s Hidden Research on Smoking and Health», publisert på nettverkkjeden Globalinks sider: http://www.globalink.org/gt/secretdocs (begrenset adgang).

• Tobakksindustrien i Sverige : LÖWENBERG, ANDERS: Rökridåer. En kritisk granskning av tobaksindustrin, Stockholm 1992. (Bokförlaget Prisma – ISBN 91–518–2493–0).

• Tobakksindustrien i Finland : BÄRLUND, JOHAN: Varfor får tobaksindustrien ljuga? En rapport om rättegångarna mot tobaksindustrien i Finland. Retfærd nr 60, 16. Årgang nr 1 1993 s 68–75.

• Om diverse land : DAYNARD, RICHARD A., CLIVE BATES and NEIL FRANCEY: Tobacco Litigation Worldwide, British Medical Journal, Vol 320, 2000 pp 111–113.

11.2 Oversikt

Oversiktene over de enkelte land tar først for seg Canada, deretter noen land i Europa, Australia/New Zealand og til slutt Asia. Afrika synes foreløpig lite aktuell (bortsett fra Sør-Afrika). USA er det inngående redegjort for i utredningens del II (kapittel 6–10).

11.2.1 Tobakksregulering

Dagens nasjonale lovregulering av tobakksindustrien og tobakksmarkedet har gjennomgående følgende fellestrekk verden over:

Forbud mot å selge tobakksprodukter til personer under 18 år.

Restriksjoner på markedsføring av tobakksprodukter. I det store og hele er det tale om begrensede reklameforbud, særlig for å hindre markedsføring i fora som når barn og ungdom.

Advarselsmerking av sigarettpakninger. Utformingen av advarslene varierer noe. De aller fleste land har i dag roterende advarselsmerking med ulike tekster.

Vern mot utsettelse for passiv røyking, særlig røykeforbud på offentlige steder, kommunikasjonsmidler som fly, tog og buss, og i viss grad røykerestriksjoner på arbeidsplasser.

11.2.2 Erstatningssøksmål mot tobakksindustrien

Erstatningssøksmål mot tobakksindustrien forekommer i en rekke land. Søksmålene mot tobakksindustrien i de enkelte land har stort sett kommet i 1990-årene, blant annet som et resultat av de forhold som er blitt avdekket innen den amerikanske tobakksindustrien om tobakksproduktenes innhold og den nye erkjennelse man har fått om skadevirkningenes alvor og omfang.

Private erstatningssøksmål fra røykere eller deres etterlatte finner sted blant annet i (i alfabetisk rekkefølge) Australia, Canada, Finland, Frankrike, Hong Kong, Irland, Israel, Nederland, New Zealand, Polen, Spania, Storbritannia, Sør-Korea og Tyskland.

Erstatningssøksmål fra offentlige myndigheter mot den nasjonale tobakksindustri for utgifter som det offentlige er blitt påført som følge av tobakksskader, er under vurdering eller allerede innledet blant annet i følgende land: Australia, Canada, Frankrike, Irland, Israel og New Zealand. Dertil har offentlige myndigheter i enkelte land anlagt søksmål i USA mot amerikanske tobakksselskaper, blant annet: Bolivia, Costa Rica, Guatemala, Nicaragua, Panama, Thailand, Ukraina og Venezuela.

I tillegg til disse erstatningsrettslige søksmålene, forekommer det i en del land søksmål basert på ulike overtredelser av tobakkslovgivningen, for eksempel i Australia, Frankrike, Filippinene, India, Nederland og Sveits. Slike søksmål anlegges dels av offentlige håndhevelsesmyndigheter og dels av private interesseorganisasjoner eller enkeltpersoner. Det dreier seg blant annet om søksmål mot tobakksselskaper for brudd på markedsføringsrestriksjoner, søksmål mot tobakksforhandlere for salg av tobakk til mindreårige, og søksmål mot arbeidsgivere, restauranter m.v. for brudd på regler som skal beskytte mot utsettelse for passiv røyking.

11.3 Canada

By Cynthia Callard

Executive Director, Physicians for a Smoke-Free Canada

11.3.1 Tobacco Regulation

11.3.1.1 Introduction

Canada is a federated state, and the ten provincial and federal governments have overlapping jurisdiction on a number of areas of public policy, including tobacco control. While the Canadian constitution gives authority over health and commercial activities to provincial governments, the federal government maintains power over taxation, criminal matters and ‘peace order and good government.’ The broad interpretation given to federal powers, as well as the pragmatic need for uniformity in consumer health issues has lead to the federal government being the lead agency in the development of public policy on tobacco.

In 1997, the provincial government of British Columbia launched an aggressive tobacco strategy through which it has surpassed the federal government on a few key issues, including litigation against the tobacco companies, and mandatory testing and disclosure of tobacco product emissions. The Quebec government, which often takes a more independent stand on domestic issues, has also surpassed federal standards on a number of tobacco promotion constraints. The emergent strategy of provincial governments moving ahead in different areas is generally viewed as a benefit to public policy, as it allows progress to be made where political conditions are most favourable.

Canadian municipalities also exercise delegated power over tobacco issues. They are chiefly responsible for restrictions on smoking in public places, and for the enforcement of laws which ban the sale of cigarettes to children.

11.3.1.2 Manufacture

The Tobacco Act (1997) authorizes the federal government to regulate standards of manufacture for cigarette products. This was the first federal control exercised over the manufacturing process of tobacco products. In theory, this provisions of the Tobacco Act could be used to set maximum emission levels of tar, nicotine, benzo-a-pyrene or other dangerous compounds, or to mandate or prohibit the use of specific papers, filters or other design elements. In practice, little has been done to advance development of these regulations. It is not expected that regulations specifying how cigarettes are to be manufactured will be implemented in the near future.

11.3.1.3 Labelling and Packaging of Cigarette Products

The Tobacco Act (1997) authorizes the federal government to require the display of warning labels and other health information on cigarettes and other tobacco products. It also authorizes the regulation of minimal package size.

Regulations under this section of the Act have not yet been brought into force (January 2000), but the tobacco companies have continued, on a voluntary basis, to print the health warnings required under previous legislation since 1994. (The Tobacco Products Control Act (1988) was struck down by the Supreme Court of Canada in September 1995 for infringing the freedom of expression rights guaranteed under Canada’s Charter of Rights and Freedoms).

These voluntary warnings take up 25   % of the back and front of the cigarette package, and display one of eight rotating messages in black-and-white. In January, 1999 the Minister of Health proposed that health warnings be increased to 60   %; a year later, these proposals were amended to reduce the size of the warning to 50   %, but to include photos and other illustrations. Sixteen rotating messages with illustration have been published in Canada’s Gazette (this is the first step in the development of regulations); before the regulations become final they must be approved by both cabinet and parliament.

Tobacco legislation enacted in the provinces of British Columbia, Manitoba, Quebec and Ontario also authorize regulations on warning labels and packaging, but no regulations have been brought into force.

11.3.1.4 Advertising & Promotion

Canada was one of the first countries to impose a comprehensive ban on cigarette promotion when it passed the Tobacco Products Control Act in 1988. These provisions became the subject of a constitutional-challenge, and were eventually the basis for the law’s rejection by the Supreme Court in 1995. Despite a theoretical ban on advertising and sponsorship-promotion between 1988 and 1995, Canadian tobacco companies were successful in using a loop-hole in the law to establish ‘shell-corporations’ through which they continued to promote their brands through sponsored events.

The Tobacco Act, which replaced the Tobacco Products Control Act does not seek to ban tobacco advertising, but to limit it in the following ways:

• Lifestyle tobacco advertising is not permitted

• Allowable forms of tobacco advertising can only appear in publications with an adult readership of 85   %, in adult-only venues and through direct mail

• As of October 1, 2000, sponsorship advertising is allowed on the site of the sponsored event, in publications with an adult readership of 85   % and in adult-only venues and through direct mail.

• As of October 1, 2003, tobacco sponsorship promotion is banned (although donations may be made by tobacco companies to events)

• Cigarette brand names can be promoted on lighters, matches and other smoking accessories. Restrictions on cigarette promotion include:

• Ban on coupons and gifts

• Ban on cigarette-brand clothing

• Ban on free cigarettes or free cigarette-brand lighters

• Ban on promotional games

The Tobacco Act does permit the promotion of cigarette brand names through products and services, provided that these services do not have lifestyle associations, or are not directed at youth. Canadian cigarette companies have continued to promote their brands chiefly through sponsored events, and have not yet exercised their rights to advertise directly, or to promote their brands through permitted products and services.

Very few provinces have laws which ban or restrict tobacco promotion. Provincial law in British Columbia authorizes regulatory restrictions on tobacco advertising, but these have not been put into force. The Quebec Tobacco Act parallels the federal Tobacco Act in a number of key provisions, including the phase-out of sponsorship.

11.3.1.5 Restrictions at Point of Sale

The federal Tobacco Act authorizes regulations restricting retail promotion. No such regulations have yet been brought into force. Restrictions on retail displays of cigarettes have been imposed by the provincial governments in Nova Scotia and New Brunswick.

Federal law authorizes the government to require signage at point of sale, as do provincial laws in British Columbia, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland.

Pharmacies are banned by law from selling cigarettes in Ontario, Quebec, New Brunswick and Nova Scotia.

Vending machines are banned by federal law as well as a number of provincial statutes.

11.3.1.6 Sales to Minors

The federal Tobacco Act (1997) prohibits the sale of tobacco products to persons under 18 years of age. Provincial laws in British Columbia, Ontario, New Brunswick and Nova Scotia have raised that age to 19. To assist in the enforcement of these provisions, several provinces have authorized the right to suspend the retailers’ licence to sell cigarettes, and to post signs at the retailer notifying the public that the retailer has offended.

11.3.1.7 Reporting requirements

The federal Tobacco Act (1997) as well as tobacco legislation in Ontario and Quebec authorize governments to demand reports from tobacco manufacturers on the sales of their products and their expenditures in advertising. There are no such regulations currently in place, although the federal government has given notice of its intention to regulate in this area in the coming year. Tobacco manufacturers continue, on a voluntary basis, to provide data to the federal government for the emissions of tar, nicotine and carbon monoxide from their cigarettes.

Regulations passed under the authority of British Columbia’s Tobacco Sales Act impose the world’s most extensive reporting requirements on cigarette emissions. Tobacco companies must report on the levels of 37 chemicals in addition to tar, nicotine and carbon monoxide, and must do so under the standard ISO methodology as well as an ‘intense’ smoking method designed to reflect realistic smoking conditions. Companies must also report on the ingredients and additives to cigarette tobacco, cigarette papers and cigarette filters.

The federal government has given notice that it intends to impose regulations similar to those in British Columbia.

11.3.1.8 Restrictions on Smoking

Both federal and provincial governments have jurisdiction over labour practices, and governments and both levels have implemented laws of varying strength to protect workers from smoking in the work-place.

The federal Non-Smoker’s Health Act , which applies to federal government employees, transportation workers, communications workers, including those in the media and banking employees, protects most workers from smoke. Those who are not protected include prison workers, and those who work in public areas (like airports) where smoking may be permitted.

The Non-Smoker’s Health Act also bans smoking on buses, airplanes and other forms of inter-provincial transportation, although exceptions have been made for trains.

British Columbia’s Workers Compensation Board, which works at arms’-length from the government, protects all workers from exposure to second-hand smoke. There is also legislative protection in Saskatchewan

The provinces of British Columbia, Manitoba, Ontario, Quebec and Newfoundland do not permit smoking in licensed child-care facilities. Many children, however, are not cared for in licensed facilities, and there are no restrictions on smoking around children in either federal or provincial laws.

Smoking is not allowed in acute-care hospitals by law in British Columbia, Ontario and Quebec, and by practice in most regions of Canada. Smoking in residential-care facilities, like psychiatric treatment centres, is not uncommon. Smoking is not allowed by law in schools in British Columbia, Ontario and Quebec, and by administrative practice in many other areas

11.3.1.9 List of Statutes

A list of legislation governing tobacco issues in Canada is available on two web-sites:

• The National Clearinghouse on Tobacco or Health (http://www.cctc.ca/ncth/docs/legislation/)

• The Tobacco Law Compendium ( http://www.tobaccolaw.org/ )

• Provincial Legislation includes:

• British Columbia Tobacco Sales Act (1996) and amendments

• Alberta Protection from Secondhand Smoke in Public Buildings Act

• Saskatchewan Minors Tobacco Act, 1978

• Manitoba Act to Protect the Health of Non-Smokers, 1990 and amendments

• Ontario Tobacco Control Act, 1994

• Ontario Smoking in the Workplace Act, 1990

• Quebec Tobacco Act, 1998

• New Brunswick Tobacco Sales Act, 1993 and amendments

• Nova Scotia Tobacco Access Act, 1993 and amendments

• Prince Edward Island Tobacco Sales to Minors Act, 1991

• Newfoundland Tobacco Control Act, 1993

Federal Legislation includes:

• Tobacco Act, 1997 (amended in 1998)

• Non-Smokers’ Health Act, 1988 (amended in 1990)

11.3.2 Tobacco Litigation

There are a handful of private actions against the tobacco industry in Canada, and some government actions.

The federal government is suing the tobacco companies for lost revenues resulting from their involvement in smuggling during the late 80s and early 1990s. This case is being heard in the U.S. courts under RICO provisions.

The Ontario government is suing the tobacco companies for the costs of health-care resulting from the use of their products. This case is also being heard in the U.S. courts under RICO provisions.

The British Columbia government launched a suit against the tobacco companies in Canadian courts, based on enabling legislation it passed in 1997 and amended in 1998. This legislation was struck down by the B.C. Supreme court on February 21, 1999. The government subsequently announced it intends to amend its legislation to reflect the court ruling, and will re-file its claim.

The Manitoba and Newfoundland governments are rumoured to be interested in suing the companies (the Premier of Newfoundland announced his intention in 1998), however they have not yet begun any public process towards doing so.

Europa

11.4 France

By Comité National Contre le Tabagagisme, Paris

11.4.1 The French Legal Framework For Tobacco Litigation

11.4.1.1 A Right Mentioned in the Law

The first law for tobacco control in France was adopted in 1976 (9th July). This law entitled the Law Veil gave in its article 18 the right to associations to take actions if the law is not enforced. Two conditions were defined: the association should have in its statutes the purpose of tobacco control and should be older than 5 years.

Founded in 1968, the French Committee Againt Smoking (C.N.C.T.) gathered these conditions. After a delay of two years planned by the law so that the different parts could adapt themselves to the new legal situation, the CNCT began its first legal actions in 1978 in front of penal or civil juridictions. This right devoted to associations was confirmed in theLaw Evin adopted on January 10th, 1991

Beside this written right, the legal action of the CNCT is based on two other aspects:

11.4.1.2 A mission given by the Health Ministry

Since 1991 and the Law Evin the Health Ministry has given the CNCT the mission of a legal vigilance. In this respect the Health Ministry partly financially supports the legal actions launched by the CNCT. This position is due to the fact that the first law (Veil) was not at all enforced. And beyond this reason, the health authorities could not technically carry out this mission regarding the aim to reach.

11.4.1.3 No legal action by the Ministry of Justice.

The legal action of the CNCT can also be explained by the lack of involvment of the Ministry of Justice. In more than 20 years, only 7 actions were taken by the Justice Ministry and 6 of them were given up.

This inerty of the Public prosecutors enabled the tobacco industry in the 70s and the 80s to continue its tobacco ad campaigns without sentences.

11.4.1.4 The strategy of the CNCT

At the beginning (at the end of the 1970s), the strategy of the CNCT was to take actions against the tobacco industry, settled in France, about the campaigns for direct or indirect tobacco ads in favour of their brands. After several sentences the foreign tobacco producers ordered abroad their campaigns (Germany, Netherland). And it led to a series of defeats for the CNCT, because it could not prove the participation and complicity of the French subcompanies. The CNCT had to adapt its strategy and decided to take actions against the medias, parties to the violations. During this temporary period (1991–1993) a lot of actions were decided in order to show the will of the Authorities, so that the new law be respected. Actions concerning sportive sponsoring were also taken.

From 1993 on, and the fact that total tobacco ad ban forecasted by the Law Evin came into force, the CNCT decided to limit and even to stop if possible its actions against medias and to concentrate its efforts on advertisers. The association had to investigate a lot in order to reveal the intricate networks built by the foreign tobacco companies to be able to commit infractions. In this respect actions concerned above all the main punishable operations campaigns for indirect tobacco ads (for example Camel Boots, Peter Stuyvesant Travel). Other kind of infractions were also pursued in order to build as far as possible a very strict and clear jurisprudence: commercial ads promoting new tobacco products through articles, pictures with tobacco brands on cars or other supports und so on.

In 1993 because of the evolution of the marketing of the tobacco industry, new actions concerning promotions either at retailors or using tobacco packs were taken and increased. The aim was to prove the illegality of such operations and to get a reduction of investments carried out in this field by the tobacco industry. Patronage actions were also pursued and condaimned (see Philip Morris Institute, Club Dunhill Prestige).

Another kind of legal actions was engaged concerning tobacco packs, for example health warnings .

At least since 1995 the CNCT has launched actions about the respect of smoking bans . Non-smokers are more and more angry failing to manage to work in smoke free places just through courtoisy and politeness and willing that the law supposed to protect them should come in force. The CNCT has more than 500 files of people suffering from passive smoking, especially at workplaces but a few minority (7   %) ends up in the Court. These kinds of actions should be very important in the future. The same should happen with actions launched by victims of tobacco . One action was taken in 1995 (Ozeir) and two others are supported by the CNCT but the association is not directly involved (cf Gourlain – Berger).

11.4.2 Results of the legal actions of the CNCT: The constitution of a tobacco law jurisprudence and the evolution of infractions

From the beginning of the 1980s till today the CNCT through its actions made it possible to get a very strict and clear jurisprudence, conforting the principles mentionned in the tobacco laws. In the framework of the 1976 law, direct ads for tobacco, which took other elements than the picture of the tobacco pack and the name of the brand, were condemned. Campaigns for indirect ads through matches, lighters, clothes (see Marlboro Leasure Wear) or services (Camel Adventure …) were condemned as well. Promotion operations were also found illegal. Patronage by tobacco brands, outside the possibilities defined by the law were condemned. Ads for patronage actions like the Philip Morris Foundation for Cinema were condemned definetely by the Supreme Court of Appeal (Cassation Court). Free distribution of cigarettes was also pursued with success.

11.4.2.1 Actions on indirect tobacco ads

In the framework of the law Evin, (January 1991) the main actions concerned indirect tobacco ads beacause direct tobacco ads mostly disappeared on January 1^st 1993. Litigations led to decisions of the Supreme Court of Appeal. All the judgments present a very restrictive analysis of the possibility of exemption mentioned in the article 3 of the Law. In this respect, the existence of a relation, whether direct or indirect (for example a chain of relations), legal or financial on this relation may be, is sufficient not to apply the exemption. In some legal decisions, the judges even state that a tacite agreement (that is a non written and non provable) is sufficient. Besides, these services are excluded of the exemption (like Peter Stuyvesant Travel). These decisions were very important and positive because they limit a lot the possibility for the tobacco industry to promote its products.

In France, the investment of the tobacco industry in such tobacco ads has considerely decreased during these last years. In 1998, only 6 millions Francs for illegal ads were registered by the monitoring of tobacco illegal ads whereas the tobacco industry spent more than 530 millions of Francs in 1992 in such tobacco ads.

Cinema, posters do not accept now tobacco ads and even indirect tobacco ads.

11.4.2.2 Actions on promotions

The tobacco industry has in a large scale transferred its investments towards promotions. These operations have in fact increased during these last years and they now represent about 1 billion Francs. The judgments, however, are very clear and prohibit these promotions in a similar manner as the «classical» tobacco ads.

For instance have these promotions efforts been declared as illegal:

• Games and lottery

• Gifts and primes

• The use of cigarette cards inside the tobacco pack

• The dissemination of catalogs

11.4.2.3 Actions on pictures of brands

Pictures in news magazines or in other parts of the press, showing cars or pilots sponsored by tobacco brands, have been declared illegal.

11.4.2.4 Actions on commercial ads

Commercial ads are generally small articles, which most of the time are focusing on the launching of new products. Usually, there are illustrations with a picture of the product. According to French jurisprudence, these ads are illegal if they promote tobacco products. Today, these kinds of tobacco ads have disappeared.

11.4.2.5 Actions on the presentation of a tobacco product in the framework of another ad

The use of a tobacco product inside another ad has been recognized as illegal.

11.4.2.6 Actions on tobacco advertising through sponsoring

Tobacco advertising through sponsoring, which include the name of a tobacco brand, are now clearly illegal.

11.4.2.7 Actions on tobacco ads at the tobacco retailers

Direct tobacco ads are under certain conditions allowed at tobacco retailers. The ads must be small posters, not visible from the outside.

11.4.2.8 Lititgation based on second-hand smoke at the workplace

Since 1998 the number of cases about employees, who decide to take action against their employer because of the lack of enforcement of smoking ban at workplaces has increased a lot. Little by little passive smoking and smoking bans at workplaces have created a framework of laws protecting the environmental conditions at workplaces.

11.4.2.9 Litigation about health warnings

A decree adopted on April 26^th 1991 formulates the conditions under which health warnings must be displayed on cigarette packages: their placement on the package, size, etc. Nevertheless, the tobacco industry tries through different methods to limit the impact of the messages, for instance its visibility (no contrast with the bottom), or its legibility (use of no bold fonts, or use of distorded fonts …) or even disputing the merit of the health warnings.

In this respect from 1993 the CNCT has asked tobacco producers to act in comformity with the decree. Then stating the total lack of answer, a first legal action was taken from 1995 against Rothmans, Philip Morris, Reynolds and the SEITA. At the present time we are still waiting for the ruling of the Supreme Court of Appeals because there are two rather conflicting decisions at the level of the Court of Appeals.

11.4.3 The importance of «health-warning- litigation» for individual law suits

The cases and the jurisprudence about the health warnings are particularly important because they are closely related to the cases of the individual victims. It is in fact one of the legal bases to prove that the tobacco industry knew the risks related to tobacco consumption but didn’t say anything and even managed to get around the law, when it was obliged to integrate health warning on the tobacco packs.

These cases are also one of the legal foundations for the actions taken by the social insurrance organisations against the tobacco industry in order to be paid back for the cost of tobacco diseases.

11.5 Great Britain

By Action on Smoking and Health (ASH), England og ASH, Scotland

11.5.1 Introduction

The tobacco industry is unique in that its products cause the deaths of 120, 000 people a year in the UK (13, 000 Scotland) through tobacco-related diseases. This means that each year 120, 000 new smokers must be recruited to maintain the current profit base: 330 new smokers a day. Whilst tobacco use has halved among better off families in Britain, those on low income continue to smoke at the same high rates as they did in the 1970s.

11.5.2 Questions on Tobacco Regulation

11.5.2.1 Nicotine Maintenance

With increased knowledge about nicotine addiction, many in the public health community are now tackling tobacco use as a question of ‘long-term nicotine-maintenance’. Two industries – the tobacco industry and the pharmaceutical industry – will be increasingly competing for the nicotine maintenance market. New technology for delivering nicotine is certainly evolving rapidly and dramatically. Some of the technology already commercially available is very familiar, such as nicotine replacement therapy (NRT) products. Some new technology has been introduced but is less familiar, including two cigarette-like devices from the RJ Reynolds Tobacco company: Premier and Eclipse.

11.5.2.2 Additives in tobacco products

In the UK over 600 additives may be used in the manufacture of tobacco products. As there is no formal regulatory framework, neither the Government nor the European Union have the power to demand from the tobacco industry information on which additives they use in tobacco products. Although tobacco additives are generally screened for their direct toxicity, there is virtually no assessment of the impact additives have on smoking behaviour or other external consequences.

In February 1999 the Government called on the tobacco industry to explain the use of additives in cigarettes, expressing concern that the tobacco industry is deliberately aiming to make cigarettes more attractive to children. One of the most effective ways of making cigarettes more attractive to children has been to add cocoa, vanilla and liquorice to tobacco products. For example, sweeteners such as sugar and chocolate increase the palatability of cigarettes to children and first time users; eugenol and menthol numb the throat so the smoker cannot feel the smoke’s aggravating effects.

Released secret documents show that British American Tobacco executives planned to develop a cigarette targeted to children which would have coloured paper wrappers, smell like root beer or fruit juice and be treated with ammonia to boost nicotine delivery for a physiological kick. These developments echo the strategy behind alco-pops, which created huge controversy in the UK when they became popular with underage drinkers.

Approved cigarette ingredients now include honey, maple syrup and fruit extracts from pineapple, cherry, apricot and banana – all appealing to younger palates.

There is currently no obligation on manufacturers to describe such additives on cigarette packaging. Since the 1970s a voluntary agreement was reached with the tobacco industry under which approval of additives was vested in the Independent Scientific Committee on Smoking and Health. There is a register of permitted additives drawn up with the voluntary agreement of the tobacco industry which was last updated in March 1997.

11.5.2.3 European Developments

The European Commission is currently considering legislation concerning cigarette tar and nicotine yields, additives and labelling. It is developing proposals for a directive that will replace the maximum tar yield directive (90/239/EEC) and the labelling directive (89/622/EEC) which set a upper limit of 12 mg tar yield per cigarette and require warnings to be placed on packs respectively.

The proposal will largely be based on the recommendations of the High-level Cancer Experts Committee of the ‘Europe Against Cancer’ programme [the Cancer Experts Committee] which were published in 1997. The Cancer Experts Committee prioritised the importance of regulating tobacco products and proposed:

• Only tobacco, tobacco paper, filter materials and tobacco extracts should be permitted in cigarettes sold and manufactured in the European Union. Any additives to be included should be demonstrated free of toxicity and any other harmful effects on health, in burnt and unburnt form. Additives to cigarettes should be monitored and included on the labelling as with other drugs and foodstuffs on the market

• The tar content of cigarettes should be limited to a maximum of 12 mg per cigarette as currently mandated for 31 December 1997.

• The nicotine content of cigarettes should be limited to 1 mg per cigarette from 31 December 1997

• The maximum allowable limits of the tar (12 mg) and nicotine (1 mg) contents of cigarettes sold or manufactured in the European Union should be decreased by 10   % per annum until levels of 5 mg tar and 0.5 mg nicotine are met.

• Health warnings should be strengthened, made more prominent and labelling should include a freephone telephone number from which accurate information about smoking, its health consequences and its avoidance can be obtained.

• By 31 December 2000, generic packaging of cigarettes must be introduced.

However, in a recent paper in Tobacco Control , 1 UK experts called for the recommendations of the Cancer Experts Committee to be reconsidered and substantially modified. In particular they expressed concerns that the new directive could continue to use the ISO/FTC methodology as a basis for regulation, thereby lending official support to the concept of ‘low tar’ cigarettes. The authors outlined a series of measures which need to be taken into account when considering the most effective ways of regulating and controlling tobacco products:

1. The FTC test should be abandoned as the basis for the regulation of tobacco products

2. Upper limits, and progressive reductions, for known carcinogens and other toxins should be set

3. A new measure of total toxicity should be introduced

4. The ratio of specific carcinogens to nicotine should be reduced

5. Regulation of nicotine should proceed with great caution and only after extra research

6. Tobacco additives should be tested for their wider public health impact. The purpose, use and overall public health impact of existing and new additives need to be explained

7. A comprehensive measurement and disclosure regime should be introduced

8. Consumer information on packets should be comprehensive and accurate

9. Actual exposure of smokers to nicotine should be regularly monitored

10. A common regulatory framework for all nicotine products should be developed and an EU tobacco product modification expert committee set up.

11. A common international strategy on the future of product modification should be developed

12. Any future directive on these issues should be regularly reviewed

11.5.3 Tobacco litigation

11.5.3.1 Group action against the tobacco industry collapses

On 26 February 1999, the first group action, consisting of 52 people with lung cancer who were suing two British tobacco companies, was brought to an end. The decision followed a ruling by the judge that 36 of the lung cancer sufferers could not continue their case against Gallaher and Imperial Tobacco because they had been diagnosed with the disease more than three years before suing. The remaining six plaintiffs are considering whether to continue their legal action on a case by case basis. Lawyers acting for the 52 plaintiffs had agreed to represent them on a «no win, no fee» (conditional) fee basis. However, when the judge assigned to the case (Lord Justice Wright) ruled that the majority of the plaintiffs were time-barred, the lawyers decided that the risks of pursuing the case with so few remaining plaintiffs were too great.

11.5.3.2 The cases

The legal action centred on 52 living lung cancer victims who were suing Gallaher and Imperial Tobacco (and the defunct Hergal) for damages due to negligence. The plaintiffs argued that the companies were negligent in failing to reduce tar levels and the harmfulness of their product when it first became clear that smoking causes lung cancer in the late 1950s. The plaintiffs argued that they were exposed to ‘negligent tar’ (the extra tar that should have been removed) from the 1950s onwards and that this had materially contributed to their lung cancer. As in all personal injury cases the plaintiffs were faced with a series of hurdles:

• They were required to:

• show the companies had a duty to reduce tar

• show the duty was breached

• show that the plaintiff was harmed

• show that the breach of duty caused or materially contributed to the harm to the plaintiff.

The 52 cases were to be heard as a ‘group action’ with 10 ‘lead cases’ covering the range of conditions and smoking histories in the group. The others would have been ‘stayed’ (put on hold) pending the outcome of the lead cases and then re-examined in the light of the results of the lead cases. In 1997 Mr Justice Wright was appointed as the judge to hear the cases through to their conclusion.

11.5.3.3 Expected damages award

If the case had gone to full trial, the lung cancer sufferers, if successful, might have expected to win damages of £  25–65,000 each depending on their suffering and loss. If 50 cases had won £  50,000 each this would equate to £  2.5 million, a relatively small sum (at least compared to the cost of fighting this case). However, around 30,000 people get lung cancer and die as a result of their smoking history each year in Britain. A substantial fraction of these could have valid claims against the tobacco companies. If 10,000 lung cancer victims sought compensation each year and received £  50,000, that would equate to £  500 million per year. The combined profits of Gallaher and Imperial in 1997 were £  645 million. While these calculations are illustrative, they explain why the tobacco companies put so much effort into defending these cases with huge legal teams and why their share prices rose following the collapse of the UK litigation.

11.5.3.4 Document disclosures

Tobacco litigation forms an important part of tobacco control because it puts a requirement on the tobacco companies to release internal documents, many of which are likely to be very revealing in terms of what the companies knew about the harmful effects of smoking many years ago.

Had the UK group action against Imperial and Gallaher gone ahead, much of the time between the preliminary hearings and the full trial would have been taken up with ‘discovery’ – the exchange of thousands of pages of documents. These documents are not made public unless and until they are used in court. The discovery process in US litigation has led to the release of thousands of incriminating tobacco industry documents. See the ASH links pages for internet connections to thousands of documents that have emerged in the United States.

11.5.3.5 Timing

The actions began in 1992 and initially the lawyers tried to get Legal Aid for the plaintiffs. However, Legal Aid was refused and the cases were then brought under Conditional Fee Agreements (CFAs are ‘no-win, no fee’ agreements) and the first hearings were in December 1996. There were a series of procedural hearings including a special hearing in December 1998 on the eligibility of those plaintiffs that sued more than three years after their cancer was diagnosed – this is a ‘limitations hearing’.

11.5.3.6 Limitations (time-barred cancer sufferers)

The 1980 Limitations Act requires plaintiffs to bring actions within three years. 36 of the 52 plaintiffs commenced their action more than three years after the diagnosis of lung cancer. However, Section 33 of the Act allows the judge to exercise discretion and allow cases to proceed if he believes this would be in the interests of justice. In making this decision, the judge will consider many factors, including:

• Length of delay and reasons why the plaintiffs did not sue earlier,

• Unfairness to defendants because of lost evidence,

• Defendants’ role in creating delay,

• Strength of overall case

Lord Justice Wright chose not to take into account any of these factors and stuck rigidly to the three-year time limit, thus debarring the majority of plaintiffs from the case.

11.5.3.7 Plaintiffs’ approach to the litigation

The plaintiffs wanted the substantive issues to be heard in court, to establish negligence on the part of Gallaher and Imperial Tobacco, and to win damages for the 10 lead cases. Such a victory would have established precedents for the other victims within the group action and would have had significant implications for the 30,000 people per year who contract lung cancer as a result of smoking. This could effectively establish a compensation scheme that could amount to over £  500 million per year (conservatively assuming 10,000 eligible claims per year at £  50,000 each).

11.5.3.8 Tobacco industry approach

From the start, the apparent tobacco industry strategy has been to prevent the cases ever coming to a full hearing by using procedural blocking tactics. The aim of the companies was to attack the financial viability of the action. They said that they would never settle the cases out of court and argued that they had a ‘meritorious defence’ on the substantive issues. However, similarly robust statements were made in advance of the US tobacco industry accepting the proposed $  368 billion settlement in June 1997.

A history of the tobacco industry blocking tactics:

• Block legal aid – succeeded.

• Prevent litigation as a group action and require individual litigation – failed.

• Hold plaintiffs solicitors responsible for tobacco industry costs if the action is unsuccessful – failed.

• Tried to apply a gagging order – initial success, then failure at the Court of Appeal.

• Prevent new plaintiffs joining the group – failed.

• Block 36 plaintiffs because they sued more than three years after diagnosis – succeeded.

• Argue for plaintiffs’ costs to be allocated in proportion to number of cases won – issue not resolved because of the collapse of the case following the limitations’ hearing.

11.5.3.9 Future Action

Following the collapse of the group action, it is difficult to foresee how tobacco litigation will proceed in the UK. However, it’s worth remembering that it took years’ of legal action in the US before the tobacco companies lost a case. Prior to 1997 the companies declared that they would defend every single case but by mid 1997 they were negotiating a settlement to limit future litigation. The US litigation may also help British litigants: now that so many incriminating documents against the American tobacco industry are in the public domain, it will become increasingly difficult for other tobacco companies to defend themselves.

Another possible outcome is for health authorities to take legal action against the tobacco industry. A preliminary investigation by the NHS Confederation has already been undertaken and it is possible that further legal action will be taken at a future date.

11.6 Germany

Dr. Burkhard Oexmann

Sozietät Dr. Oexmann – Rechtsanwälte (Attorneys-at-Law)

11.6.1 Tobacco Regulation

In Germany there are several laws that regulate the production and selling of tobacco products. The most important law is the «Lebensmittel- und Bedarfsgegenständegesetz» (LMBG, August 15th, 1974) which gives the definition of tobacco products (§ 3) and regulates the trade with tobacco products (§§ 20 ff).

§ 21 LMBG gives the Public Health Department the right to regulate which additives are allowed and the maximum amount of specific tobacco smoke components. The Department made use of this power in the ℅Verordnung über Tabakerzeugnisse» (Tabakverordnung, December 20th, 1977) and the ℅Verordnung über die Kennzeichnung von Tabakerzeugnissen und über Höchstmengen von Teer in Zigarettenrauch» (TabKTHmV, October 29th, 1991).

§ 22 LMBG prohibits tobacco advertising on television and on the radio. Advertising on posters and in the cinemas is still allowed as same as selling cigarettes in vending machines even though selling cigarettes to minors younger than sixteen years is prohibited.

The TabKTHmV (§ 2) forces the tobacco industry to display the following general warning on the front of every package: «The EU-secretaries for health: Smoking Endangers Health». In addition to this general warning, tobacco products are required to display in rotation one of the following warnings (§ 3):

Cigarettes and tobacco for cigarettes:

• Smoking causes cancer

• Smoking causes heart disease

• Smoking endangers the health of your baby during pregnancy

• Giving up smoking reduces the risk of serious diseases

Cigars and pipe-tobacco:

• Smoking causes cancer

• Smoking causes heart disease

• Smoking causes deadly diseases

• Smoking endangers the health of your fellow men

11.6.2 Tobacco Litigation

11.6.2.1 Introduction

As far as we know, we were the first lawyers in Germany to try the idea of suing the tobacco industry for damages smoking does to one’s health and the costs that the diseases related to smoking – especially lung cancer – cause.

In Germany we have a health system based on individual and private health insurance. Therefore, the insurance companies carry the costs of smoking-related diseases which are enormous and not covered by the taxes on tobacco. We were hired by some insurance companies to investigate the possibilities of suing the tobacco industry for these costs. We made a draft for a complaint (may be viewed on our homepage: http://www.oexmann.de ), but the insurance companies finally decided not to risk a case.

Our company is representing several individual smokers who are suing the tobacco companies for damages (one of these suits may also be viewed at http://www.oexmann.de ).

11.6.2.2 Legal Basis

All the tobacco complaints are bases on two key arguments:

Addiction:

The tobacco industry knew at least at the beginning of the eigthies that smoking causes physical addiction (Victor DeNoble proved this at Philip Morris’ in experiments on rats) but did not display any warning on the packages. Even the warnings now displayed on the packages (see above) do not say that smoking is addictive (in contrary to todays health warnings in Norway). In fact, the health warnings play down the risks when stating that smoking merely «endangers» health, not damaging it.

Additives:

Based on several documents revealed through the tobacco cases in the U.S. and other reports recently surfaced, the suspicion arose, that the German tobacco industry also uses additives to increase the addictiveness of tobacco products in order to «hook» smokers. Again Philip Morris proved that acetaldehyde , which is produced when sugar is burned, functions as a «nicotine booster» and rose the amount of sugar in its cigarettes. Unfortunately, sugar is an allowed additive in Germany. Ammonia is used to raise the ability of the smoker’s lungs to take in the smoke more deeply (the so called «ammonia technology»). We argue that these technologies are also used in Germany and demand the tobacco industry to open up internal documents on this subject.

11.6.2.3 Results by now

The Regional Court in Wiesbaden seemingly follows our arguments and demanded one company to tell whether or not ammonia is used in Germany as an additive in cigarettes. On the other hand the Regional Court in Bielefeld refused to grant free legal representation to our client because the judges did not think much of his chances in court. We are now appealing this decision to the Higher Regional Court in Hamm. Other Regional Courts – mostly dealing with the question of free legal aid – have not made any decision yet.

11.7 Belgium

By Luk Joossens

Chairman of the Belgian Coalition Against Tobacco, Brussels

11.7.1 Tobacco Regulation

In Belgium all tobacco advertising of tobacco products is banned in Belgium since 1/1/1999 by the law of 10/12/1997. This ban includes tobacco related sponsoring. Following a court decision of the «Court d’arbitrage» of 30/9/1999, an extension was granted for the sponsorship and advertising of tobacco products during worldwide events until the year 2003.

The Royal Decree of 15/9/1976 prohibits smoking in public transport vehicles and smoking in other public places is regulated by the Royal Decree of 15/5/1980. It is prohibited to smoke in enclosed places, which are accessible to the public. An exception is made for enclosed premises where food products and /or drinks are offered for consumption as a principal activity, and where the surface does not exceed 50m. Spaces can be provided for smokers in certain places (those offering services to the public including those in which food and drink are consumed) provided that the surface area does not exceed half the total surface area of the enclosed premises. Smoking at work is not especially covered by the legislation concerning smoking in public places. However, according to the Royal Decree of 31/3/1993, employers are obliged to adopt a policy on smoking at work which must be negotiated with the company’s health and safety committee.

The Royal Decree of 13/8/1990 prohibits certain kinds of oral tobacco , implements the EU Directives on labelling of tobacco products and the maximum tar content of cigarettes and prohibits the distribution of tobacco products by means of vending machines , except in places where these products are also available for sale in the traditional way. According to the same Royal Decree the nicotine limit in cigarettes is limited to 1.5mg per cigarette from 31/12/1992 and to 1.2 mg from 31/12/1997. Tobacco has been excluded from the consumer price index since 1/1/1994.

11.7.2 Tobacco litigation

So far in Belgium there have been no court cases against the tobacco industry to recover the health costs of smoking or to pay for the health damage the industry has caused.

11.8 The Netherlands

By Trudy J.J. Prins

Managing director Stivoro – Dutch Organisation for Tobacco Control

11.8.1 Introduction

In The Netherlands there are 4.1 million smokers out of a population of slightly over 15 million inhabitants. Of the adult population 37   % of all men and 31   % of all women smoke. Average consumption is 21 cigarettes per day. Yearly, nearly 24.000 people die of smoking related diseases.

11.8.2 Tobacco Regulation

11.8.2.1 The Tobacco Law 1988

Regulations concerning tobacco control in The Netherlands date back to the 1980s. The Tobaccolaw was passed in 1988 to be enforced as of the 1st of January 1990. Before that date there was a law stating that government buildings ought to have smokefree areas and rooms. As to the sales of cigarettes, in 1982 it became obligatory to add the sentence with the warning : «Smoking threatens health’ in print to the cigarette packets».

The Tobaccolaw is a very clear and simple law in that it knows no grey areas. Its clauses are not subject to controversial interpretation. It pertains to two aspects of smoking: locations with smoking prohibitions, and locations subject to prohibitions of sales.

Smoking is not allowed in specified areas of buildings belonging to the government (whether state, provincial or municipal). It is not allowed in institutions for socio-cultural activities or for social services, healthcare institutions, indoor sportsfacilities, and schools when these are financed by the government. In deciding whether or not the law is applicable, ownership of the building is the determining factor. It is not important whether or not the tenant is a government body, neither is it important if there is co-ownership as long as the government is the majority shareholder, nor if the work done in the building is governmental.

The law indicates in which areas within these buildings smoking is not allowed. These are: waitingareas, areas with ticketwindows, hallways, corridors, staircases, elevators, meetingrooms, classrooms, toilettes, restaurants, recreational areas, areas accessible to the public. The law provides room for exception. It is stated that it is allowed to create separate facilities for smokers. Based on this clause, the building manager can allocate a separate waitingroom, or recreational room, or restaurant for smokers.

Sales of tobaccoproducts is prohibited in healthcare institutions, institutions for social services and socio-cultural work, sports facilities and schools. In short: in most buildings to which the smoking prohibition rules pertain there is also a sales prohibition. An exception to this are the buildings that house government institutions.

In The Netherlands the law on working conditions was renewed in 1994. This law stipulates that employers have to safeguard their employees from risks, danger, and potentially dangerous circumstances. This provides the legal opening for non-smokers to ask for a smokefree workplace. There are two other legislative documents protecting the nonsmoker at their place of work.

Other regulations that are of great importance are those concerning advertising . Since 1985 it has been forbidden to broadcast tobacco ads on tv and on radio. Furthermore, advertising should not be directed at youngsters. In advertising there may be no connection between smoking and sports.

11.8.2.1.1 Enforcing the Tobacco law

The Minister of Health has appointed the Inspection of Healthprotection, Food and Veterinary Matters as the organisation responsible for inspecting the enforcement of the law. If anyone should wish to lodge an official complaint against the manager of a building concerning this subject, it is the Inspection that will receive and follow up on the complaint. If the manager of a building should refuse to enforce the Tobaccolaw a civil legal procedure is possible. It is also possible for the government to take legal-administrative measures against managers, such as withdrawal of government susidies or licences.

11.8.2.1.2 Changes in the Tobacco law.

The Tobaccolaw is under reconstruction. Sometime in 2000 a new and much stricter version will become operative. In this stricter version there will be more buildings for which a smoking prohibition will be in order. In particular buildings for art and culture, such as theaters and museums. Employees obtain the right to demand a smokefree workplace. It will no longer be allowed to sell kiddypacks. And the most important addition in this law is the system of fines that will become operative. The Health Inspection will be able to give fines with a maximum of 4500 Euro, to those who do not enforce the law.

In 2000 also, the European guideline concerning advertising will become operative in national legislation. This means that from august 2001 onwards tobacco advertising in The Netherlands will be forbidden. It will only be possible to advertise at points of sale, only indoor and by non moving objects. In due course major sponsoring of events by tobacco companies will be forbidden throughout Europe.

11.8.2.2 Tobacco Litigation

There is some jurisprudence concerning the enforcing of the Tobacco law in The Netherlands.

The first case was in 1991 against the municipality of Amsterdam by one of its employees. The case served in the civil-service court. The judge found in favour of the employee. The municipality intended to appeal, but changed its mind in view of the fact that loosing it was anticipated.

There were several other cases, in all of which the judge ruled in favour of the complainant. The cases concerned were amongst others a jail, brought to court by an employee; the elected council of a municipality brought to court by one of the elected members; a conscripted soldier against management of his army barracks; an inhabitant of a municipality against the management of a voting facility for elections for European Parliament; parents against a primary school.

Litigation of a different kind is going to take place for the first time in The Netherlands in early 2000. This concerns a class action against the tobacco industry holding it responsible for the health damage done to several present and ex-smokers.

11.9 Switzerland

By Verena El Fehri

Director, Arbeitsgemeinschaft Tabakprävention Schweiz AT (Swiss Association for Smoking Prevention), Bern

11.9.1 Introduction

Switzerland has around seven million inhabitants, and approximately one third of the population aged over 15, i.e. just over 1.9 million people, are smokers. Of these, 1.6 million claim that they consume less than one tobacco product in a day. Whereas the proportions of smokers among the adult population aged over 25 remained more or less stable or increased only slightly between 1992 and 1997, the percentages of smokers among the 15 to 24 age-group increased considerably during the same period. Switzerland is among the leaders as far as per capita consumption of cigarettes is concerned.

11.9.2 Tobacco Regulation

The first legislative measures aimed at reducing the use of tobacco were taken by government authorities and the Swiss Parliament at the end of the 1970s. It should be stressed here that considerable pressure was required from outside before such measures were introduced.

Since 1978, cigarette packets have had to carry warning notices . Initially, the text of these warnings read: «Warning from the Federal Health Department: Smoking can damage your health». In 1995, however, the warning notice was adapted to that used in EU member states. Since 1986, it has been obligatory for cigarette packets to carry information about tar and nicotine content.

The first restrictions governing tobacco advertising , in particular advertising aimed at young people, became law in 1978 as well. Advertising of tobacco products is currently banned in the electronic media, places that are mostly frequented by youngsters aged under 18 and magazines/publications aimed at people aged under 18.

The distribution of tobacco products free of charge to persons under 18 years of age is prohibited. At the present time, there is, however, no ban on the sale of tobacco products to youngsters, although there are plans to introduce such a ban for persons aged under 16. The sale of smokeless tobacco is forbidden.

Since 1993, legislation has been in force to protect against exposure to . «Employers are required to take all possible measures at the workplace to ensure that non-smokers are not irritated by the smoke of other persons». In addition, smoking is prohibited in numerous public buildings. These bans on smoking are enforced by the operating authorities (e.g. post offices, museums, theatres, etc.). However, individuals who refuse to comply with the bans do not receive fines.

The state government or parliament is not empowered to impose bans on smoking in restaurants/bars, etc. At the present time, legislation exists in four out of Switzerland’s 26 cantons, stipulating that no-smoking areas (usually tables) must be set aside in restaurants.

Approximately 57 percent of the price of a packet of cigarettes currently goes into the state coffers in the form of tobacco taxes (51.7   %), Value Added Tax (7   %) and a levy that is paid towards the domestic production of tobacco (0.6   %). The revenue from levies on tobacco is earmarked for a specific purpose and is channelled directly into social welfare.

11.9.3 Tobacco Litigation

Advertising and promotional measures used by the tobacco industry have given rise to complaints on several occasions. These complaints were, however, are almost always rejected, as the tobacco industry is usually skilled in exploiting any loopholes in the law. For example, cigarette companies run competitions which, by their very nature, are geared to a target group that is aged under 18. On the competition entry form, however, it is stated that anyone entering the competition must be over 18. Consequently, such promotional activities remain within the bounds of the law.

To date, no employee has lodged a protest about passive smoking at his or her place of work. In Switzerland, the victim of any damage must lodge the complaint by him or herself; it is not possible for an organisation (e.g. a trade union) to do this in place of the person concerned. In comparison with other European countries, there is very little protection against wrongful dismissal. Consequently, it is possible for an employer to serve notice on an employee without any reason, provided that the stipulated period of notice is adhered to.

According to Swiss jurisdiction, an injured party may sue for damages if that party has suffered harm as a result of a wrongful act. However, if the party has engaged in an activity aware of the risk involved, this is not deemed to be a wrongful act. Consequently, if complaints are lodged against the product manufacturers, it must be proven that the injured party was not aware of the potential risk. To compound matters, Swiss jurisdiction decrees that the injured party must prove the damage suffered. Moreover, it must be possible to substantiate the direct link between cause and effect by producing documentary evidence, unless the product has proved to be defective in some way. In contrast to the American legal system, for example, the Swiss legal system also does not provide for damages to be paid as a financial penalty to serve as a deterrent or a preventive measure. According to Swiss law, only persons who have suffered damages directly themselves may submit claims. Third party organisations, health insurance companies or the state itself are not entitled to do so. Up until now in Switzerland, there has been no litigation against tobacco product manufacturers.

11.10 Danmark

Avkonsulent, cand. jur. Ulla Skovgaard Danielsen

Tobakksskaderådet i Danmark

11.10.1 Indledning

Danmarks befolkning er på lidt over 5 mill. Siden 1950’erne er andelen af mænd der ryger faldet fra ca. 80   % til 36   % i 1998. Andelen af rygere blandt kvinder er faldet fra 44   % i 1970’erne til 33   % i 1998. Som i en række andre vestlige lande, herunder Norge er der også i Danmark de senere år sket en lille stigning i rygning blandt unge (både drenge og piger). Andelen af dagligrygere blandt de 16–19 årige var i 1996 på 24   %.

11.10.2 Regulering af tobaksområdet

I forhold til mange andre vestlige lande, specielt de andre nordiske lande, er lovgivningen på tobaksområdet i Danmark begrænset og er først blevet vedtaget indenfor de senere år. En mere generel lovgivning blev således først fastsat med loven om røgfri miljøer i offentlige lokaler, transportmidler o.lign. fra 1995.

Nedenfor er angivet de nuværende bestemmelser på området:

Lov nr. 436 af 14. juni 1995 om røgfri miljøer i offentlige lokaler, transportmidler og lignende . Loven fastsætter bestemte regler for det statslige område og forpligter hver kommunalbestyrelse og hvert amtsråd til at fastsætte bestemmelser om røgfri miljøer på kommunale og amtskommunale arbejdspladser, institutioner og transportmidler.

Det forventes, at sundhedsministeren på baggrund af Regeringens Folkesundhedsprogram for 1999 til 2008 om kort tid vil fremsætte lovforslag, der forbyder tobaksrygning på daginstitutioner og skoler, på områder hvor børnene opholder sig.

• Socialministeriets vejledning nr. 53 af 6. marts 1998 om dagtilbud m.v. til børn efter lov om social service. I vejledningen henstilles det til kommunerne at sikre at der i daginstitutioner og dagplejehjem ikke ryges i lokaler hvor børn opholder sig.

• Lov nr. 426 af 13. juni 1990, som ændret ved lov nr. 1086 af 23. december 1992 om mærkning af tobaksvarer og om tjæreindhold i cigaretter . Loven er vedtaget på baggrund af EU-direktiv om mærkning og tjæreindhold. Loven er præciseret i Sundhedsministeriets bekendtgørelse nr. 1213 af 23. december 1992 om mærkning af tobaksvarer, om tjæreindhold i cigaretter samt om forbud mod salg af visse snustobaksvarer.

• Arbejdsministeriets bekendtgørelse nr. 1163 af 16. december 1992 om faste arbejdssteders indretning. I bekendtgørelsen findes en bestemmelse om beskyttelse af ikke-rygere mod gener fra tobaksrøg på spisepladsen.

• Kulturministeriets bekendtgørelser nr. 489 af 1. juni 1997 om reklame og sponsorering i radio og fjernsyn forbyder tobaksreklamer i radio og tv. Sponsorering af programmer er ikke tilladt for tobaksproducenter.

Der blev i 1991 mellem Sundhedsministeriet og Tobaksindustrien indgået en frivillig aftale om markedsføring af tobaksvarer . Denne aftale afløste en tidligere aftale fra 1986, idet tobaksindustrien dog allerede i 1972 havde pålagt sig selv begrænsninger for hvordan der måtte reklameres for tobaksvarer. Aftalen fra 1991 vil nu blive afløst af lovgivning som følge af EU-direktivet om forbud mod tobaksreklamer. I det lovforslag, der forventes fremsat af sundhedsministeren i januar 2000 vil der formentlig blive lagt op til, at et forbud mod tobaksreklamer skal træde i kraft 1. juli 2000.

Prisen på tobak er meget høj i Danmark. En pakke cigaretter koster i dag 32 dkr.

11.10.3 Advarsler på tobakspakker

I henhold til ovennævnte bestemmelser om mærkning af tobaksvarer skal alle tobakspakninger bære følgende generelle advarsel: «Er yderst sundshedsskadeligt» Sundhedsstyrelsen

Cigaretpakker skal derudover bære en af følgende advarsler, der skal veksle:

• «Rygning er årsag til kræft» Sundhedsstyrelsen

• «Rygning er årsag til hjerte-karsygdomme» Sundhedsstyrelsen

• «Hvis du er gravid, kan rygning skade dit barns sundhed» Sundhedsstyrelsen

• «Beskyt børnene mod passiv rygning – de har ret til selv at vælge» Sundhedsstyrelsen

• «Rygning generer dine omgivelser» Sundhedsstyrelsen

Også på pakninger til cigarer, cigarillos, pibetobak og anden røgtobak skal der være specifikke advarsler.

11.10.4 Retssager i Danmark.

Der har ikke været ført retssager i Danmark om skader som følge af aktiv eller passiv rygning. Juridiske eksperter har til pressen udtalt, at det må anses for svært for en ryger ved en dansk domstol at få tilkendt erstatning, fordi vidensniveauet om rygningens skadelige virkninger er for højt. Et forhold som måske også vil gøre det svært at kræve erstatning efter dansk ret er den omstændighed, at industrien i 1986 indgik en frivillig aftale med det danske indenrigsministerium, hvorunder sundhedsforhold dengang hørte, om at forsyne cigaretpakninger og annoncer med påskriften «Sundhedsstyrelsen påpeger, at tobaksrygning er sundhedsskadelig». Endelig er det fra juridisk hold fremført, at forældelsesfrister kan betyde, at en erstatningssag ikke kan vindes.

Det vil være af almen interesse, hvis der blev ført en retssag som følge af rygning og det er derfor Tobaksskaderådets opfattelse, at der ved en sådan sag bør bevilges fri proces.

Vedrørende retten til at ryge på en arbejdsplads.

I 1995 blev der truffet en opmandskendelse i en faglig voldgift mellem virksomheden Avery Etiketsystemer A/S og Grafisk Forbund, Dansk Metalarbejderforbund og Handels- og Kontorfunktionærernes Forbund i en sag, hvor påstanden fra Avery Etiketsystemer’s side var at virksomheden var berettiget til at indføre forbud mod tobaksrygning på virksomheden. De nævnte faglige organisationer bestred, at virksomheden havde denne ret. Opmandskendelsen fastslog, at virksomheden var berettiget til at indføre et forbud.

11.11 Finland

By professor juris dr. Erkki Aurejärvi

University of Helsinki, School of Law

11.11.1 Introduction

The population in Finland is about 5 million. During the last few years the consumption of tobacco products has dropped.

11.11.2 Tobacco regulation

The tobacco law came in force in 1977 in Finland, rulings as follows:

• A total ban on tobacco advertising.

• A prohibition on the sale of cigarettes to minors below the age of 16.

• The medical authorities empowered to put their warnings on each cigarette pack, stating that smoking is dangerous to one’s health.

The Parliament has amended the tobacco law many times during the past years. In 1995 the following prohibitions were enacted: smoking of cigarettes in working places and the sale of cigarettes to persons under the age of 18.

From 1.3.2000 the new legislation restrict indoor smoking in restaurants. 50   % of the space in big restaurants must now be smokefree. It is also prohibited to smoke on the bar desk. These restrictions are usually respected in Finland.

11.11.3 Tobacco Cases in Finland

11.11.3.1 The product liability case

A product liability case started in the Helsinki District Court in 1988. Plaintiff is Mr. Pentti Aho who smoked between 1941–1986. He got chronic bronchitis, emphysema and finally throat cancer in 1986. Now his wife and son are representing the plaintiffs and are seeking 500.000 Finnish marks (100.000 US dollars) in compensation from the defendants, British American Tobacco Nordic and R. J. Reynolds.

The Helsinki District Court gave its verdict in 1992 in favor of the defense. The verdict was appealed. In its jugdment, the Court of Appeals said: «the defendant’s conduct has been negligent in a manner that, pursuant to the Damages Act, makes them liable to compensate for the damage they caused.» The Court stressed, however, that «a verdict in favor of the plaintiffs would require the plaintiffs to establish a causal link between the cigarette smoking and the illnesses diagnosed». The Court of Appeal found that this causal connection was not adequately established in the case of Pentti Aho.

In June 1999, the Supreme Court has agreed to hear the case.

11.11.3.2 The criminal trial

The criminal trial against the executives of the tobacco companies was started in 1992 in the Espoo District Court. There are 2 plaintiffs (victims) who are ex-smokers and injured by cigarettes. The prosecutions are about marketing crimes and grave assault.

The judge rejected the prosecutions in 1993. The Court of Appeals overturned the charges due to the absence of an establised causal connection. The verdict is being appealed to the Supreme Court.

11.12 Australia

By Jonathan Liberman, BA, LLB (Hons)

Attorney-at-Law

11.12.1 Introduction

Australia has a federal system of government; power is exercised both at the national (or Commonwealth) level and by State and Territory governments. Under constitutional arrangements, the Commonwealth Parliament does not have plenary legislative power – it may legislate only in respect of enumerated heads of power. In contrast, State and Territory Parliaments do have plenary legislative power, subject to certain specific exceptions. The effect of these arrangements is that tobacco regulation cannot be achieved solely at the national level. Certain issues are dealt with by national regulation, while others are dealt with at the State / Territory level, where regulation often varies from jurisdiction to jurisdiction.

11.12.2 Tobacco Regulation

11.12.2.1 Federal Regulation of Tobacco

The major elements of federal tobacco regulation are:

Tobacco advertising is prohibited. This covers the publication (broadly defined, and including «authorising or causing» to be published) and broadcasting of tobacco advertisements. Exceptions are made for: point-of-sale advertising, which is generally regulated at the State / Territory level; «accidental or incidental» publication or broadcasting; and sporting and cultural events of international significance specified by the Minister for Health.

Cigarette packets distributed in Australia must bear

• one of six rotating health warnings : «SMOKING CAUSES LUNG CANCER»; «SMOKING IS ADDICTIVE»; «SMOKING KILLS»; «SMOKING CAUSES HEART DISEASE»; «SMOKING WHEN PREGNANT HARMS YOUR BABY»; «YOUR SMOKING CAN HARM OTHERS»;

• a more detailed «explanatory message» for each of these health warnings; and

• a phone number to call for more information, which provides a recorded message dealing with the health effects of smoking.

Cigarette packets distributed in Australia must bear messages indicating average tar, nicotine and carbon monoxide levels for that brand of cigarettes, as measured by ISO testing methods. The messages must also explain what tar («condensed smoke containing many chemicals, including some that cause cancer»), nicotine («a poisonous and addictive drug»); and carbon monoxide («a deadly gas which reduces the ability of blood to carry oxygen») are.

11.12.2.2 State/Territory Regulation of Tobacco

The major areas covered by State and Territory regulation include:

Sales to minors: In all States and Territories it is an offence to sell tobacco products to children under the age of 18 years.

Point-of-sale advertising: Some States/Territories have banned point-of-sale advertising, restricted display of tobacco products at point-of-sale, and required the display of health warnings at point-of-sale. Others allow point-of-sale advertising, but, in some cases, subject to restrictions on size and location.

Restrictions on smoking in public places: These vary markedly from jurisdiction to jurisdiction, ranging from limited restrictions through to substantial restrictions on smoking in enclosed public places such as shopping centres, malls, plazas, restaurants, cafeterias, clubs, schools, universities, business premises, community centres, theatres, cinemas, libraries, buses, taxis, boats, hotels, motels, and sporting and recreational facilities.

Licensing of retailers: Some jurisdictions require tobacco retailers to hold licences, which may be suspended or cancelled for failure to comply with applicable legislation, such as sales-to-minors legislation.

11.12.3 Tobacco Litigation

11.12.3.1 Actions by individuals

There have been two attempts in Australia by individuals with tobacco-related illness to sue tobacco companies for compensation – one in the late 1980s, the other in the mid-1990s. Neither case made it to trial. Each succumbed to the force of traditional tobacco company techniques of ceaseless procedural and interlocutory applications, which made the litigation unmanageable.

11.12.3.1.1 Class actions

Australia’s first tobacco class action was filed earlier this year (April 1999) in the Federal Court. It is an action brought on behalf of individuals who first suffered, or were diagnosed with, smoking-related disease between 16 April 1996 and 16 April 1999. (The class is limited in this way for statute of limitations purposes.) It has been estimated that up to 60,000 Australians may fall within the class. Under Federal Court procedures, members of the class are covered by the Court’s decision unless they actively «opt-out» of the proceedings.

The class action seeks compensation and exemplary damages from the three major Australian tobacco companies, Philip Morris, Rothmans and WD & HO Wills. It pleads causes of action in common law negligence and trade practices law (misleading and deceptive conduct), and focuses, in particular, on the following conduct of the respondent tobacco companies:

• advertising, marketing and promoting cigarettes as enhancing consumers’ life and enjoyment of life;

• making public statements denying the existence of reliable evidence linking smoking to health risks;

• lobbying Commonwealth, State and Territory governments in relation to:

• restrictions on advertising, marketing, promotion and sale;

• the placement of warnings on cigarette packets; and

• the size and content of warnings on cigarette packets; and

• remaining silent and concealing knowledge about the effect of nicotine and the link between smoking and disease.

On 13 August 1999, Justice Wilcox of the Federal Court dismissed strike-out applications filed by the respondent tobacco companies, and held that the action was suitable to proceed as a class action. 2 The tobacco companies had argued, inter alia, that there were insufficient common issues to satisfy the class action requirements. The tobacco companies have appealed Justice Wilcox’s decision to the Full Bench of the Federal Court, and the appeal was heard earlier this month (November 1999). As of writing this report, judgment had not been delivered.

11.12.3.2 Passive smoking litigation

Passive smoking litigation has been brought successfully in Australia since the mid-1980’s.

11.12.3.3 Exposure to Passive Smoking in the Course of Employment

Most such cases have been brought under common law (negligence) or workers compensation legislation by individuals exposed to passive smoking in the workplace. While the majority have been settled out-of-court, the most prominent case successful at trial saw a jury award $   85,000 to a woman with a history of asthma and bronchitis exposed to cigarette smoke in the workplace ( Scholem v Department of Health , 27 May 1992).

11.12.3.4 Discrimination in Public Places

More recently, a discrimination claim has been successful in the Federal Human Rights and Equal Opportunity Commission ( Meeuwissen and Francey v. Hilton Hotels of Australia Pty Ltd , 25 September 1997). The case was brought under the Disability Discrimination Act 1992 (Cth) , against the owner and manager of a nightclub, by a woman who suffered from asthma and was forced to leave the nightclub because of the effect of environmental tobacco smoke on her breathing. The Commission found that the nightclub had unlawfully discriminated against the woman by requiring her to comply with a condition (the ability to tolerate environmental tobacco smoke) with which she was unable to comply as a result of her disability (asthma).

The Commission concluded that such a finding would not cause the respondent unjustifiable hardship (which would have constituted a defence under the legislation), saying: The capacity for all Australians, with or without a disability, to participate as far as possible in all aspects of community life must be the paramount consideration. When the benefits set out above to other patrons as well as staff, as well as to the respondent itself, are added, the scales are weighted heavily.

The Commission awarded the woman $   2000 in damages and her companion $   500. 3

11.12.3.5 Misleading and Deceptive Conduct About the Effects of Passive Smoking

The Australian Federation of Consumer Organisations successfully sued the Tobacco Institute of Australia over an advertisement it had published in newspapers in 1986 which stated, inter alia, that «there is little evidence and nothing that proves scientifically that passive smoking is harmful to health». The Federal Court held that the Tobacco Institute had engaged in misleading and deceptive conduct in publishing the advertisement, and made a declaration to that effect. 4

11.12.3.6 Public Interest Litigation

In September 1999, the Tobacco Control Coalition Inc. filed an action against Australia’s major tobacco companies in the Federal Court, seeking the establishment of a fund (of up to $   500 million per year) to be used for tobacco control measures such as advertising campaigns, educational programs, quit smoking programs and nicotine replacement therapy reimbursement. The action is a class action brought on behalf of two classes: current and future smokers who have not yet suffered or been diagnosed with smoking-related disease; and various health and medical groups involved in tobacco control.

The case is presently at a very early stage. A statement of claim is to be filed in early December 1999.

11.13 New Zealand

By Trish Fraser

Director, ASH (New Zealand) Inc.

11.13.1 Introduction

The population of New Zealand was estimated to be 3,808,700 at 30 June 1999. In the last two decades there has been a significant decrease in consumption of tobacco products among adults aged 15 years and over. In 1978, cigarette equivalents per adult aged 15 years and over were 3066. In 1998, that figure has dropped to 1371. New Zealanders are consuming less than half the number of cigarettes they were consuming in 1978. Twenty-five percent of the adult population in New Zealand smoke.

11.13.2 Tobacco Regulation

The New Zealand Government began to tackle the problems relating to the use of tobacco products in 1963. Since 1963 there have been increasing restrictions placed on tobacco industry activities. These are:

• 1963: Tobacco advertising banned on radio and television.

• 1973: Tobacco advertising banned on billboards and in cinemas. Print media restricted to half a page.

• 1986: Tax hike of 70c per packet of 20 cigarettes.

• 1990: Smoke-free Environments Bill passed – included:

  • Part 1 – smokefree areas in workplaces, restaurants and some indoor public places;

  • Part 2 – imposed controls on marketing, advertising or promotion of tobacco and monitored and regulated harmful substances in tobacco; and

  • Part 3 – established the Health Sponsorship Council to provide replace tobacco sponsorship.

• 1995: All remaining tobacco advertising and sponsorship banned except for point-of-sale advertising. Equalisation of tax on all tobacco products. Code of Practice for tobacco industry on point-of-sale advertising.

• 1997: Smoke-free Environments Amendment Bill (No.2) passed – included:

  • Raising the legal age of minors who can be sold cigarettes from 16–18 years

  • Strengthening parts of the Act in relation to vending machines, harmful constituents, rewards and liability of employees and employers in the sale of cigarettes to minors.

• 1998: Packets of 10 cigarettes banned. Point-of-sale tobacco advertising banned.

The Ministry of Health has the power to regulate harmful constituents in tobacco products produced for sale in New Zealand but has not taken any steps to regulate the contents of tobacco.

The price of cigarettes in New Zealand range from US$3.25 – US$4.25

11.13.3 Tobacco Litigation

11.13.3.1 Background

Proposed tobacco litigation in New Zealand is progressing very slowly. New Zealand is not a litigating country. One of the major problems is the Accident Rehabilitation and Compensation Insurance Act 1992 which covers rehabilitation and compensation to persons who suffer through personal injury. If a person receives compensation from the Accident Compensation Corporation(ACC) then they are not eligible to sue for compensation. Illness or death from smoking is not considered an accident therefore smokers and ex-smokers with smoking related illnesses are exempt under the legislation. This means they are able to sue tobacco companies. However, legally New Zealand is not a supportive environment to sue for compensation.

11.13.3.2 Reg De Grave, Potential Claimant

In 1991 Reg De Grave with assistance from ASH began proceedings to sue the New Zealand tobacco industry. He suffered from Buerger’s Disease which resulted in the amputation of his legs and most of his fingers. He also suffered several heart attacks. Medical evidence supported his claim that his health problems were a result of years of smoking. He applied for legal aid but unfortunately in 1992 was turned down and gave up his fight against the tobacco industry. He was also outside the Statute of Limitations which bars any claim for personal injury beyond six years from the ‘cause of the action ’.

11.13.3.3 Class Action

Following the investigation of Reg De Grave’s case against the tobacco industry, there was a move from ASH to find a lawyer who would take a case on against the tobacco industry. In 1995, Dr David Collins, Barrister took on that role free of charge. ASH has acted as the co-ordinating organisation for this class action case.

From 1995–1996 medical evidence and information was gathered from potential claimants. Dr Collins was monitoring legal action internationally but not confident of winning the case at that time. By 1997, he believed public opinion was changing and the United States(US) was having more success with their litigation and many other countries were also beginning to launch cases against local tobacco companies.

In 1996, ASH established a ‘fighting fund ’ of A$4,250.00 which was donated by the Auckland Cancer Society. This was to ensure Dr Collins and the claimants were not ‘ out-of-pocket ’ for any expenses and to fund any research required. The ‘fighting fund ’ would need to be enlarged considerably but at least the donation from the Cancer Society was a start.

In 1997, Dr Collins divided the claimants into two groups. One a group of 10 claimants and the other a group of 31. The first group are a smaller more synergistic group who fitted the optimum legal criteria:

• Became addicted to smoking prior to 1974 (when New Zealand started to put warnings on its cigarette packets)

• Had smoked New Zealand tobacco products

• Had succumbed to a smoking related illness i.e. lung cancer, peripheral vascular disease or emphysema.

• The damage suffered has been discovered, or ought reasonably to have been discovered within the past six years.

• There is reasonable likelihood the claimant would be entitled to legal aid.

• There is reasonable likelihood the claimant would survive the litigation process.

This did not mean the claimants in the second group should be forgotten but their case would be easier if the initial groundbreaking case had been successful against the tobacco industry.

In 1998, Dr David Collins applied for legal aid for the 10 potential claimants. He has received four requests from the Legal Services Committee since then for further information. The final request was for the result of the application for legal aid in the United Kingdom(UK) which was unsuccessful. We have been waiting several months for a reply from the Legal Services Committee and believe the chances of legal aid being granted are slim.

Asia

11.14 The Philippines

By Daniel Tan, M. D.

President, Tobacco-Free Philippines Foundation

11.14.1 Tobacco regulation

There is a Consumer Code of the Philippines Article 94, that requires all tobacco products to have a health warning that ‘smoking is dangerous to your health’, and that all billboards and electronic media should have similar warnings displayed. In 1994, the industry challenged the Secretary of Health in court, questioning his authority in implementing such regulation. So far, none of the provisions in the rules and regulations have been faithfully complied with by the tobacco companies. The government is apparently incapable of enforcement at the moment.

11.14.2 Tobacco Litigation

A class action suit was brought in 1987 by 5 young attorneys and their families, on behalf of children born and unborn, seeking to force the domestic licensees of Philip Morris and R.J. Reynolds to put the same labelling on the cigarettes in the Philippines similar to the ones in the United States, and to remove all radio and television advertising (Jardeleza v. R.J.Reynolds Tobacco Co. 1987).

These lawyers (the plaintiffs) charged that the constitutional rights to health of these Filipino children is being violated by the suppression of information that smoking is dangerous to health. The lawyers demanded that the cigarette companies should at the minimum abide by the same rules and standards as in their country of origin. Plaintiffs asked for 5 times the equivalent of the advertising budgets of the tobacco companies. The damages awarded were to be committed to anti-smoking advertisements.

The lawyers representing the tobacco companies (the defendants) filed for dissmissal of the suit arguing that it is the Philippine licensees who are responsible for the operations. They claimed that restricting such advertisement is an infringement of the companies’ constitutional rights to freedom of commercial expression. Furthermore, the defendants argued that American teenagers need more protection from their legislature, and that young Filipinos need less protection. The plaintiffs were challenged by the tobacco companies to prove that the lungs of Filipino children are just as vulnerable as the lungs of American children.

While the case was still pending, the trial was delayed and eventually dropped by the plaintiffs because the courthouse in which the papers were filed mysteriously burned down.

11.15 Hong Kong

By Marcus Yu

Executive Director, Hong Kong Council on Smoking and Health

11.15.1 Tobacco Regulation

11.15.1.1 No Smoking Areas:

1. Prohibition of smoking in the following areas:

   1. Any area opened, kept or used for, or in connection with, the purpose of providing seating accommodation in a cinema, theatre or concert hall.

   2. Any public lift.

   3. Any amusement game centre.

      1. Any indoor area open to the public in a supermarket or bank.

      2. Any indoor area open to the public in department stores or shopping malls, except the restaurant within a department store or a shopping mall.

2. Smoking is prohibited in public transport carriers including public bus, public light bus, taxi, train, and ferry.

3. The following organizations can designate all or part of their areas as no smoking areas:

   1. Airport Authority

   2. Restaurants.

   3. Schools

   4. Post secondary colleges, technical colleges or technical institutes, industrial training centre or skill centres

   5. Universities

   6. The Hong Kong Academy for Performing Arts.

4. The manager of a restaurant which provides indoor seating accommodation for more than 200 persons, excluding accommodation being used exclusively for a private event and separated by full height partition, shall designate not less than one-third of the area of such as a no smoking area.

5. Display of signs where smoking prohibited.

6. The manager of a restaurant shall place and keep in place in a prominent position in the restaurant and visible from outside the restaurant a sign in English and Chinese indicating whether there is in the restaurant an area of its seating accommodation where smoking is not permitted.

11.15.1.2 Sales of Tobacco Products:

1. No person shall sell, offer for sale or possess for the purposes of sale any cigarettes unless -

   1. they are in a packet of at least 20 sticks; and

   2. the packet bears in the prescribed form and manner -

   3. a health warning;

   4. (ii) the tar and nicotine yields

2. No person shall sell, offer for sale or possess for the purposes of sale any cigarette containing an amount of tar exceeding 17 milligrams.

3. No person shall sell or offer for sale any tobacco product from a vending machine.

4. No person shall sell, offer for sale or possess for the purposes of sale any cigar, pipe tobacco or cigarette tobacco unless the container thereof bears a health warning in the prescribed form and manner.

11.15.1.3 Tobacco Advertising:

1. Prohibition of tobacco advertisement in a printed publication. (Effective from 31 December 1999).

2. Prohibition of outdoor tobacco advertisement.

3. Prohibition on broadcast of tobacco advertisement by radio or visual images

4. Prohibition on exhibition of tobacco advertisement by film

5. Prohibition on placing of tobacco advertisement on the Internet

11.15.1.4 Prohibition on Selling or Giving of Tobacco Products:

Prohibition on selling or giving of tobacco products to minors.

Prohibition on giving tobacco product to anyone for promotional purposes

11.15.2 Tobacco Litigation

There has not been any tobacco litigation taken up, either by individual or groups, in Hong Kong until 1999, when a smoker filed a suit against Philip Morris claiming damages for being led to smoking in 1983.

The smoker WAH Po-hing, 55, a businessman claims he suffers a «doctor phobia syndrome» because of his habit and he sues Philip Morris for $28 million. The named defendant is the Philip Morris Asia company, a Hong Kong branch of Philip Morris Incorporated, which makes Marlboro cigarettes.

Mr. Wah filed a High Court writ saying he refuses to be examined by doctors for fear of being diagnosed with lung cancer after 16 years of smoking. He also says smoking has caused him to suffer premature ageing, glaucoma and cataracts. The writ says Mr. Wah started smoking Marlboro cigarettes in 1983 after watching advertisements showing a smart and strong American man on a big horse. Mr. Wah claims he was misled by the advertisement, believing smoking could improve his image.

He says he now smokes 60 cigarettes a day. He claims his «doctor phobia» developed in 1991 when he consulted a doctor after vomiting blood but refused further examination, fearing a diagnosis of lung cancer. He has not sought a formal consultation since, the writ says. Mr. Wah also claims smoking has accelerated his ageing by turning his teeth yellow and caused a glaucoma and cataracts, which he says a «doctor friend» had diagnosed.

11.16 India

By Prakash C. Gupta, Sc.D.,

Senior Research Scientist (H),

Epidemiology Research Unit,Tata Institute of Fundamental Research, Mumbai

11.16.1 Introduction

Tobacco was a common and popular substance in India much before the introduction of commercially manufactured cigarettes. Around the beginning of this century, British India was the second largest producer and consumer of tobacco in the world and today’s India is the third. The use of tobacco is widespread as it is integrated in a variety of culturally accepted practices such as betel-quid chewing. Cigarette smoking is only a minor form of tobacco use in India. Therefore one has to keep a very large spectrum of tobacco smoking, chewing and applying practices in mind while talking about tobacco control in India.

Tobacco use is prevalent in all sections of the Indian society: men, women, youth, rural, urban, rich and poor, although with different preferences. Men of urban middle and rich classes like to smoke cigarettes whereas urban poor and rural youth smoke bidi. Bidi contains a smaller amount of tobacco (0.2 g), costs about one-eighth of cigarette, but delivers a comparable or greater amount of tar and nicotine. Naturally, about eight times more bidis are smoked compared to cigarettes in India. It is estimated that about 43   % men in India smoke and smoking is increasing. The cigarette production has shown a continuous increase except for a brief period during late eighties because of a change in excise structure. Currently over 90 billion cigarettes are sold in India. During last few decades bidi smoking has shown a large increase, the estimated per adult consumption going up by 60   % even after taking the rapid population growth into account.

Urban women generally do not smoke and persuasion campaigns by cigarette companies have failed so far. In rural India, women smoke only in specific geographic areas. For example, in parts of Bihar and UP, women smoke hookah, or water-pipe. On the east cost of India, women smoke chutta (a kind of cheroot), in a reverse manner i.e. with glowing end inside the mouth. In Srikakulam district, Andhra Pradesh 62   % women reported practising reverse smoking.

Women in most part of India use tobacco for chewing and oral application. The prevalence differs in different parts of India but minimum seems to 15   %. Most common is betel-quid chewing – a mixture of betel leaf, lime, areca nut and tobacco, although other combination of these ingredients are also used. There are a variety of substances derived from tobacco that are used for oral application. Women in Maharashtra apply mishri, a black powder obtained by roasting and grinding tobacco. In a survey of 99598 persons in Bombay, about half the women reported using mishri, and in a socially and economically disadvantaged group, the prevalence was 84   %. Women in Gujarat apply bajar, a dry powder snuff, and in the eastern region of India, they apply gudakhu, a paste containing tobacco and molasses.

Tobacco chewing among men is also very common especially in the form of tobacco lime, tobacco lime and areca nut, and betel quid chewing. Although prevalence varies widely in different parts, it is estimated that 30   % men chew tobacco (including 8   % who may smoke as well) in one form or other.

The industry is further compounding an already complex tobacco problem. Tooth powders that contain tobacco are manufactured and marketed as denitrifice. Tobacco tooth pastes are marketed in toothpaste like tubes as creamy snuff.

In addition to existing tobacco problems, the most serious new problem is the advent of pan masala (betel quid mixtures). Pan masala is vigorously advertised, promoted and marketed, with no holds barred approach as cigarettes were in 1940s and 50s. As a result this substance has become very popular especially among youth and the industry has skyrocketed from zero to worth several billion dollars within three decades. The health consequences have already become apparent. Oral submucous fibrosis is an incurable, non-regressive disease in which mouth opening gets progressively smaller and smaller, and it is highly precancerous (relative risk 397.3). This disease is caused by areca nut, a constituent in pan masala. Until a decade or two back, it was a rare disease found generally among older individuals. Now it has become an alarmingly common disease seen mostly among young individuals (15–35 years). A further increase in the incidence of oral cancer, which is already a common cancer in India, is a frightening possibility.

Several research projects investigated the influence of various types of health educational strategies for stopping tobacco use. Most of them reported a significant degree of success. One study reported a substantial and significant decrease in the risk of oral precancerous lesion as a consequence of health education on tobacco. Although these studies did demonstrate a possibility of change in tobacco habits in India, currently very few cessation programs are available to the general public. There are no national or even state level agencies focusing on health education on tobacco use.

It is estimated that 635000 adult deaths in India are directly attributable to the use of tobacco every year. Compared to this, progress in tobacco control efforts has been rather patchy and tardy. As yet, there is no widespread tobacco control movement or any public health oriented policy approach towards tobacco control. In addition to usual education and awareness efforts, some regulatory and litigation measures have been attempted.

11.16.2 Tobacco Regulation

In India, a warning on cigarette packets and advertisements (Cigarette smoking is injurious to health) is mandatory under the Cigarette (Regulation of Production, Supply & Distribution) Act of 1975 (in force since April 1976). The advertising of the tobacco products is prohibited in the government-controlled media, like, T.V., radio and government publications. In 1990, the Government of India issued an administrative order prohibiting smoking in select public places like hospitals, dispensaries, educational institutions, conference rooms, domestic air flights, air conditioned coaches in trains, suburban trains and air-conditioned buses. Indian Railways, that function as a department of the Government of India, banned sale of tobacco on the World Environment Day in June 1999 on Railway platforms. Two small states, Delhi and Goa have promulgated their own tobacco control legislations that ban outdoor tobacco advertisement and smoking in public places.

11.16.3 Tobacco Litigation

There have been several litigations relating to tobacco control filed by individuals and non-governmental organisations. Some have been successful, some not so successful. The most successful one has been in Kerala where a ban on smoking in public places was imposed by the Kerala high court through an order on July 12, 1999 strictly prohibiting smoking in public places. The Court defined the public places to include bus stands, railway stations, roads, offices, hotels and bars and directed State Police to strictly enforce its order. The court order came after a woman employee filed a public interest petition stating that she found it difficult to commute in a bus in which her male co-passengers smoked.

Several other litigations are going on. The oldest one is perhaps a case filed by a consumer organisation in Delhi (VOICE) against the largest tobacco company in India, India Tobacco Compant (a subsidiary of British American Tobacco) on October 20, 1984 challanging a contest ‘Made for Each Other’ as an unfair trade practice and contending that the contest encouraged non-smokers to take up smoking. This case is still going on.

When an amendment in the Drugs and Cosmetics Act, 1940, barred manufacturers from putting tobacco in toothpaste and toothpowder, a manufacturer of tobacco tooth powder (Kasturi Manjan) filed a case in Rajasthan High Court. The High Court upheld the ban and directed the Central Government to appoint a committee of experts to deliberate the use of tobacco in other smokeless tobacco products such as pan masala, gutka etc. A special committee was constituted by the Directorate General of Health Services to examine the data related to this these tobacco mixtures. Ultimately the Central Committee on Food Standards in November 1997 recommended a ban on chewing tobacco in the country. Health Ministry supported recommendation but even now the implementation remains a matter of contention within the Government structure.

VHAI, Another Delhi based health NGO Voluntary Health Association of India, has filed a case against sponsoring the Indian Cricket team as WILLS Cricket Team on 13^th May 1999.

In July 1999, an idustrialist-politician, Mr. Murli Deora, filed a public interest petition in the supreme court of India demanding that tobacco companies pay a compensation of Rs 500 crore (about US$ 120 million) for the hazardous effects caused by the sale of tobacco and its products.

In October 1999, a public interest petition has been filed by Consumer Education Research Society (CERS) in Gujarat High Court seeking a ban on tobacco products.