The World Health Organization (WHO) and its allies are taking a bold step to challenge Big Tobacco’s bullying and ‘intimidation by litigation’ by exposing the undue influences of Tobacco Industry (TI) and are responding to the industry’s disregard to the sovereignty of governments to protect health of its citizens. The WHO FCTC (Framework Convention on Tobacco Control) enshrines effective tobacco control initiatives across the globe and has been ratified by 175 countries, protecting nearly 90% of the world’s population from tobacco health hazards. Article 5.3 of FCTC guidelines explicitly recognizes the need to protect tobacco control programmes from commercial and other vested interests of the tobacco industry.
Tobacco is a global health catastrophe causing 6 million deaths annually, nearly 80% of which occur in low and middle income countries. There are 500 cigarette factories spread around the world that produce six-trillion cigarettes every year with 41% cigarettes produced in China, followed by Russia (7%), the US (6%), Germany (4%) and Indonesia (3%). Philip Morris International leads the cigarette market and is the most profitable publicly traded tobacco company in the world. In 2010 the combined profits of the six leading tobacco companies was US$35 billion which was equal to the combined profits of Coca Cola, Microsoft and McDonald’s. For each death caused by its products, the tobacco industry’s profit was equivalent to US$6,000.
Undue Political influence
According to the 4th edition of the Tobacco Atlas, between 1990 and 2010 total federal contributions from Big Tobacco to the US elections were to the tune of US$65.4 million. Similarly, Altria/Philip Morris spent over US$10 million as lobbying expenditure in the US which is more than what all other tobacco companies combined spent in 2010. In Nepal, TI and its front group lobby contributed an estimated Rs.50 million to the first Constitutional Assembly Election in 2008 to block the Tobacco Control Bill in the Parliament.
Legal Challenges and Litigation against Tobacco Control Legislation
Between 2007 and 2011, Tobacco Companies (TC) launched a series of legal challenges through lawsuits in 11 countries against smoke-free laws, graphic health warnings and advertising bans. Apparently, 3,161 cases are still pending against British American Tobacco Company and its subsidiaries as of December 2010.
Due to overwhelming evidences of tobacco industry deception, the U.S. District Court Judge Gladys Kessler issued a landmark verdict in 2006 which was allowed to stand by the U.S. Supreme Court in 2010. Judge Kessler called the major cigarette manufacturers racketeers who are engaged in a deadly fraud. In her opinion, “the tobacco companies’ continuing conduct misleads consumers in order to maximize defendants’ revenues by recruiting new smokers (the majority of whom are under the age of 18), preventing current smokers from quitting, and thereby sustaining the industry.”
FCTC and tobacco control laws must provide governments to take steps to pursue tobacco product liability settlement agreements with multinational tobacco companies similar to the Master Settlement Agreement in the USA. International funding agencies such as the Bloomberg and Gates Foundations and its allied partners should prioritize product liability litigation as global tobacco control agenda in low and middle income countries against the TI interferences globally.
Success Stories: Breaking the TI Interferences
Despite TI’s deceitful practices to derail tobacco control and undermine public health, countries are making progress in successful implementation of Article 5.3 and its guidelines. Australia has stood strong against lawsuits by Philip Morris Asia, British American Tobacco, and Japan Tobacco over its plain packaging laws. For this victory, the Campaign for Tobacco-Free Kids (CTFK) is to present Cola Roxon, Australian Attorney General and ex-health minister, (who lead the legal defence and courageously stood up against TI), with its highest honour ‘Champion Award’. Australia’s leadership has led the United Kingdom, New Zealand, Uruguay and other countries to consider plain packaging of tobacco products. Norway, which was facing a legal challenge over its ban on cigarette displays in retails stores, fought back by selling $2.1 billion in tobacco stock from its state pension fund. Similarly, Costa Rica, which had been a poster-child for Big Tobacco for almost a decade, has passed its national tobacco control law despite a legal challenge from the industry.
Situation in Nepal
Tobacco is not only a public health issue but a political and social issue too in Nepal. The country stands out in the South Asia Region as one threatened by the tobacco epidemic due to high smoking prevalence among adults (30.4%) and among women (28.4%) which is the highest reported in all South-East Asian countries. Nepal faces an annual tragic death toll of 26,000 (one death every 20 minutes) due to tobacco and exposure to second hand smoke.
In Nepal, public interest litigation is not only the key cornerstone for the tobacco control bill becoming law but is also a legal instrument to counter TI interferences. The first historic lawsuit litigation was filed in 2003 by Non-Smokers’ Rights Association of Nepal (NOSMORAN) in the Supreme Court against the multinational tobacco company Perfect Blends and South Korean Tobacco Partner KT&G to issue an interim order to stop the Musical Concert and promotion of Pine Cigarettes through free distribution among the youth on World No Tobacco Day, 2003.
Through petitions and legal motions, NOSMORAN has made repeated attempts to stop advertisements and sponsorships of TI that target girls and teenagers through glamorous marketing. It filed two public interest law suits on February 2007 against Surya Nepal (BAT/ITC), Cricket Association of Nepal and the Nepal Government, urging them to discontinue the Musical Concert and call off the 5-year Rs.20 million sponsor ship deal.
The Nepal Supreme Court finally issued a historic landmark verdict on October 21, 2009 banning all kinds of sponsorship, promotion and advertisement by TI and ordered the Government to pass and implement the Tobacco Control Bill in the spirit of WHO FCTC. The government was forced to table the Tobacco Control Bill in the Parliament on January 3, 2010 which finally became a law in April 2011 and the enforcement of the ban on smoking in public places came into effect from August 2011. These are significant steps towards tobacco control initiative in Nepal by challenging TI interferences. However, Surya Nepal immediately violated the law by displayed big hoarding advertisements in tobacco retail shops prior to approval of the law by the President of Nepal.
The journey is still continuing for effective enforcement of 75% pictorial health warnings on deadly tobacco products in Nepal. Despite the approval of the 75% pictorial graphic warnings on cigarette packs and legal action by civil societies, Nepal government has failed to enforce it. In fact misleading statements have been issued in the media by chief executive of TI against Tobacco Control Act: “The Government is Trying to Kill the Goose that Lays the Golden Egg” said Sanjiv Keshava, MD, Surya Nepal (Nepal’s biggest tax-payer tobacco company in which ITC and BAT holds 59% shares). A Tobacco Manufacturer and UML MP of Legislature Parliament said, “The ban will affect the legitimate business of cigarettes without being able to touch the actual culprits.”
However, the reality is that while Nepal Government collects an annual revenue of Rs.4 billion from tobacco products, it spends Rs.50 billion in the treatment of tobacco-related chronic diseases. Gorkha Lahari/PM sponsored Action Kings Cigarette Brand presented Live NEFTA KTV film award 2066 in Kantipur Television; Surya Nepal/ITC/BAT organized Surya Lights Cigarette Brand Rhythm Nites in December 2009; Perfect Blends/KT&G sponsored Josh Concert in Pokhara Live from Nepal Television-2 to launch the new Josh Cigarette—all in violation of the Supreme Court verdict. Consequently, a Contempt of Court was filed in the Supreme Court dated February 2010 against largest stakeholders of BAT/ICT, PM and KT&G, and the Nepal Government.
What Next?
Political will is needed to implement policies that protect the public from big tobacco, and allow victims of the TI to protect themselves from products that are addictively harmful, and to seek legal remedies against the manufacturers of these products. There are challenges on proper enforcement of law due to lack of political commitment and aggressive interference and tactics strategies being pursued by the TI and its front group lobbies. Governments and civil societies are urged to:
- Strongly adopt and enforce comprehensive measures to prevent TI interferences in public health policies as envisioned in FCTC Article 5.3 Guidelines
- Reject partnerships and non-binding agreements with TI.
- Denormalize and regulate activities described by the TI as ‘socially responsible’ under their corporate social responsibility (CSR). For example, Mauritius, China and Serbia have moved to denormalize TI in 2008 and Mauritius became the first country to end all CSR activities of TIs by law
- Mobilize the health and education sectors to prevent TI interference in the national tobacco control programmes at community and national levels
Political commitment with legislative/judicial support should heed the call of Dr. Margaret Chan, Director-General of the WHO to ‘stand shoulder to shoulder and never allow the tobacco industry to get the upper hand’ through enforcement of comprehensive measures to prevent TI interferences in public health policies.
Hom L. Shrestha, Citizen News Service - CNS
December 2013
