The WHO International Conference onGlobal Tobacco Control Law:

Towards a WHO Framework Convention on Tobacco Control

7 to 9 January 2000, New Delhi, India

Paper

The Prospects for Globalizing Tobacco Litigation

Author

By Roberta B. WalburnGlobal Health Leadership Senior Fellow

World Health Organization, Tobacco Free Initiative

This paper is commissioned by, and produced for the World Health Organization, Geneva

I. INTRODUCTION

In recent years, news of litigation against the tobacco industry has captured headlines

and attention around the world. In particular, multi-billion dollar settlements with state

Attorneys General in the United States have led to much discussion and some litigation in

other countries against the tobacco industry. The question naturally arises: what are the

prospects for globalizing tobacco litigation?

Traditionally, large-scale and large-stakes litigation has been viewed as a U.S.

phenomenon. However, the world -- in this era of globalization and instantaneous Internet

communications -- is changing. As a commentator for the New York Times wrote recently:

[I]f you want to understand the post-Cold War world you have to start by understanding that a new international system has succeeded it -- globalization. . . . It is a complex system, with the final act still not written.1

The tobacco industry, too, is changing. Increasingly, a small number of multinational

tobacco companies are controlling markets around the world, and increasingly these

multinationals are focused on emerging markets. The prevalence of smoking is declining in

most high-income countries, but increasing in developing countries.2 Until recently,

cigarette-caused death and disease mainly impacted rich countries. This is rapidly shifting,

and by 2020 it is predicted that seven of every 10 people killed by smoking will be in low-

and middle-income countries.3

Many factors are contributing to this shift in global markets, including trade

liberalization. The shifting global focus also comes at a time when the multinational tobacco

companies are under increasing attack in their home bases from litigation and regulation --

1 Friedman, T., “The Lexus and the Olive Tree,” at xviii (HarperCollins 1999).

2 In the United States, for example, the prevalence of smoking increased steadily from the 1930s and peaked in 1964 with 40% of all adult Americans, including 60% of men, smoking. Since then, smoking prevalence has decreased, falling to 23% by 1997. By contrast, consumption is increasing in developing countries by about 3.4% per year. World Health Organization, World Health Report 1999, at 67.

3 World Bank, Curbing the Epidemic: Governments and the Economics of Tobacco Control, 1999, at 1.

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particularly in the United States -- and as new document disclosures detail how tobacco

companies built and maintained their market in the United States through decades of

wrongful conduct.

These disclosures have led to calls from the public health community for litigation

against the tobacco industry as one method of promoting tobacco control. For example,

more than 60 health ministers, legislators, and other senior policy makers from thirty

countries and six international organizations met in Washington, D.C. in March 1999 at the

International Policy Conference on Children and Tobacco and adopted, as one policy

recommendation, “Hold tobacco companies accountable for past wrongdoing through

litigation or other action. . . .” Similarly, the American Medical Association stated in 1995

that, “Physicians and the public should support legal action against the tobacco industry to

recover billions of dollars in excess medical costs from tobacco-related diseases. . . “ and

that, “All avenues of individual and collective redress should be pursued through the judicial

system.” 4

To date, the vast majority of tobacco litigation has taken place in the United States.

In fact, tobacco litigation began in the United States more than four decades ago -- in 1954.

For more than 40 years, the tobacco industry did not lose a single case in the United States.

This provides a sober lesson for potential litigants in other countries. The prospect of

tobacco litigation offers the potential of enormous public health benefits -- but also daunting

challenges.

The U.S. experience in tobacco litigation cannot -- and should not -- be blindly

exported to other countries. The decades of U.S. litigation, however, provide a number of

lessons -- of failures and of successes -- that deserve consideration. In the end, the unique

situation in each country must provide the ultimate guidance, and decisions to undertake

tobacco litigation must be made only after an in-depth due diligence inquiry about the facts

and law in a particular jurisdiction. This paper does not provide recommendations or

advice, but, instead, attempts to set forth some starting points for analysis.

If tradition were a guide, tobacco litigation would not successfully take hold around

the world and the litigation would remain a U.S. phenomenon. What the new millennium

will bring in this era of globalization, however, is a more interesting -- and open -- question.

4 Todd, J.S., et al., “The Brown and Williamson Documents: Where Do We Go From Here?,” The Journal of the American Medical Association, Vol. 274, No. 3, July 19, 1995, at 256-258.

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II. CASE STUDIES

A. Litigation in the United States

1. Historical Background

Tobacco litigation in the United States began 45 years ago, in 1954, and has been

virtually continuous since that time. For most of that period, more than four decades, the

tobacco industry did not lose a single case and did not pay one penny in damages to any

plaintiff. Not until the mid-1990s -- with the revelations of millions of pages of documents

forced from the files of the tobacco industry and with the framing of different types of legal

theories that focused on the conduct of the tobacco industry-- did litigation in the United

States achieve some dramatic successes.

One reason for the U.S. tobacco industry’s historical -- and unparalleled -- success

has been its willingness to devote virtually unlimited resources to defeating its adversaries

and the industry’s ferocity in employing scorched-earth tactics in litigation. One

commentator characterized the tobacco industry’s litigation strategy as “unique in the annals

of tort litigation.”5 This commentator wrote, “The industry saw its very existence threatened

and responded in an uncompromising fashion.” 6 As one tobacco industry lawyer candidly

wrote:

[T]he aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [RJR]’s money, but by making that other son of a bitch spend all of his.7

2. The First Wave of Tobacco Litigation

The history of tobacco litigation in the United States is usually summarized in three

waves.8 The first wave, consisting of personal injury suits by individual smokers, began in

5 Robert L. Rabin, “A Sociolegal History of the Tobacco Tort Litigation,” 44 Stan.L. Rev. 853, 857 (1992).

6 Id., at 858.

7 Haines v. Liggett Group, Inc., 814 F.Supp. 414, 421 (D.N.J. 1993) (quoting 1988 memorandum from counsel for R.J. Reynolds).

8 Christine Hatfield, “The Privilege Doctrines--Are They Just Another Discovery Tool Utilized by the Tobacco Industry to Conceal Damaging Information?,” 16 Pace L. Rev. 525, 561-88 (1996).

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the 1950s in the wake of the publication of several scientific studies which sounded grave

warnings on the health hazards of smoking.9 In this first wave of litigation, the tobacco

industry “hotly contested the causal linkage between smoking and lung cancer.”10 The

tobacco industry also contended that the health risks of smoking were not foreseeable, and

therefore, the industry argued, the industry did not have sufficient information about the risks

to research those risks and warn consumers.11 This was before the landmark report of the

U.S. Surgeon General in 1964 which concluded that smoking caused lung cancer in men and

before the Surgeon General’s warnings were placed on cigarette packages in the United

States in 1966.

3. The Second Wave of Tobacco Litigation

The second wave of cigarette litigation, also composed of individual personal injury

suits, began in the 1980s.12 In the wake of the 1964 Surgeon General’s report and the

federally-mandated warning label on cigarettes, the tobacco industry began arguing that the

hazards of smoking were “common knowledge” and, the industry argument went, smokers

who continued to smoke were merely exercising their “freedom of choice.” 13 Thus, the

tobacco companies, not without a certain audacity, seamlessly shifted their battle cry from

the first wave of litigation -- “smoking doesn’t cause cancer” -- to their battle cry in the

second wave of litigation -- that it was “common knowledge” that smoking causes cancer.

(Even while making this “common knowledge” argument, the tobacco companies themselves

continued to deny for decades that it was scientifically proven that smoking caused any

disease.)

4. The Third Wave of Tobacco Litigation

The third wave of tobacco litigation began in 1994. In this wave, the fundamental

nature of the claims against the tobacco industry changed. No longer was the litigation

9 See Wynder, E.L., and Graham, E.A., “Experimental Production of Carcinoma with Cigarette Tar,” 13 Cancer Res. 855 (1953); Doll, R., and Hill, A.B., “A Study of Aetiology of Carcinoma of the Lung,” 2 Brit. Med.J. 1271 (1952).

10 Robert L. Rabin, “A Sociolegal History of the Tobacco Tort Litigation,” 44 Stan.L. Rev. 853, 858 (1992).

11 Id., at 859-61.

12 Id., at 854.

13 Id., at 870.

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limited to individual claims by individual smokers. For the first time, state governments,

through their Attorneys General, sued the tobacco industry seeking wide-scale injunctive

relief and recovery, inter alia, of the states’ costs for medical care for smokers. In addition to

states, private third-party payers of medical costs sued the tobacco industry to recover the

costs of treating persons with smoking-caused diseases. Large class action suits on behalf of

smokers also were filed, in addition to continuing cases brought by individual smokers.

This third wave of litigation was ignited by new revelations in 1994 about the tobacco

industry’s conduct. These included hearings conducted by the U.S. Congress and disclosures

from the U.S. Food and Drug Administration (FDA). In addition, secret documents from the

internal files of the tobacco industry were disclosed by a paralegal who formerly worked for

a law firm representing a tobacco company. These documents began to open the door on the

internal workings of the tobacco industry. The Journal of the American Medical Association

(“JAMA”) devoted an issue to analyses of these internal tobacco company documents, and

stated:

We think that these documents and the analyses merit the careful attention of our readership because they provide massive, detailed, and damning evidence of the tactics of the tobacco industry. They show us how this industry has managed to spread confusion by suppressing, manipulating, and distorting the scientific record. They also make clear how the tobacco industry has been able to avoid paying a penny in damages and how it has managed to remain hugely profitable from the sale of a substance long known by scientists and physicians to be lethal.14

These documents also contained disclosures on the role of industry attorneys in fostering

scientific research that perpetuated a “controversy” as to whether smoking caused disease and

in suppressing scientific research that established the causal link.15

These initial document disclosures in 1994 were dramatic. As it turned out, however,

these documents were to be the tip of the iceberg of remarkable revelations from the long-

hidden files of the tobacco industry. As this third wave of litigation proceeded, intense pre-

trial discovery proceedings forced the production of more documents from the tobacco

14 Todd, J.S., et al., “The Brown and Williamson Documents: Where Do We Go From Here?,” The Journal of the American Medical Association, Vol. 274, No. 3, July 19, 1995, at 256.

15 Peter Hanauer et al., “Lawyer Control of Internal Scientific Research to Protect Against Products Liability Lawsuits,” The Journal of the American Medical Association, Vol. 274, No. 3, July 19, 1995, pp. 234, 236-37 (1995).

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industry. By 1998, approximately 35 million pages of documents were produced. These

documents -- this new evidence in the words of the tobacco industry itself -- formed the

factual predicate for the successful outcomes in this wave of litigation. The focus of the

litigation became not merely the product -- cigarettes -- but the unlawful conduct of the

tobacco industry.16

a. Class Actions and Individual Personal Injury Suits in the Third Wave

There was an explosion of class action and individual personal injury suits brought by

smokers in the third wave of litigation. Cases also were brought by non-smokers alleging

harm from environmental tobacco smoke.

The biggest class action suit was Castano v. American Tobacco Company. This was

a nationwide class action filed in 1994 in New Orleans, La., on behalf of all U.S. smokers.

Eventually, this case was de-certified,17 as current U.S. court opinions have made it difficult

to sustain class actions in a personal injury setting such as tobacco. One class action,

however, has been proceeding: a class action filed on behalf of smokers in the state of

Florida. Jury selection on this case began in July 1998. One year later, in July 1999, the jury

returned a verdict in the liability phase of the trial. The jury found that:

Smoking causes wide array of diseases, from lung cancer to pancreatic cancer

to cerebrovascular disease.

Cigarettes are addictive or dependence producing.

Cigarettes are defective and unreasonably dangerous.

The tobacco companies made false statements with intention of misleading

smokers.

The tobacco companies entered into an agreement (i.e. a conspiracy) to

misrepresent information relating to the health effects of smoking or the

addictive nature of smoking with intention that smokers and the public rely to

their detriment.

16 The lawsuits in the United States in the third wave generally focused on the major U.S. cigarette companies and the BAT/British American Tobacco Group (which has a subsidiary in the United States). Accordingly, in this paper references to the conduct of the tobacco industry or tobacco companies and to internal tobacco industry documents are to these companies.

17 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996).

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The tobacco companies breached implied and express warranties.

The tobacco companies failed to exercise the degree of care which a

reasonable cigarette manufacturer would exercise under like circumstances

(i.e. negligence).

The tobacco companies engaged in extreme and outrageous conduct, or with

reckless disregard, with the intent to inflict severe emotional distress.

The conduct of the tobacco companies rose to a level that permitted an award

of punitive damages.

The jury’s verdict in Florida came in the first phase of the trial and addressed only

issues of the tobacco industry’s liability. The issue of damages is following in subsequent

proceedings. Notwithstanding the volume of cases filed, there have been relatively few

trials in the decades of litigation against the tobacco industry in the United States, and the

verdicts in these trials have been split between victories for the plaintiffs and victories for the

tobacco industry -- even in recent cases. For example, just two days after the dramatic

verdict in the Florida class action, a jury in Louisiana decided for the tobacco industry in an

individual smoker case. Only five juries have awarded damages against the tobacco industry

in traditional personal injury cases -- twice in Florida, and once each in New Jersey, Oregon,

and California. The two Florida verdicts and the New Jersey verdict were overturned on

appeal. The Oregon verdict of March 1999 ($80.3 million to a family of a smoker who died

of lung cancer, reduced to $32.8 million by the trial judge) and the California verdict of

February 1999 ($51.5 million to a woman with lung cancer, reduced to $26.5 million by the

trial judge) are both being appealed.

b. State Attorneys General Suits in the Third Wave

In 1994, the States of Mississippi and Minnesota, acting through their Attorneys

General, were the first to file lawsuits against the tobacco industry in the United States.

Within a few years, almost every state joined in the litigation by filing its own lawsuit.

These were direct law enforcement actions by the states against the tobacco industry; the

states -- not individuals or groups of smokers -- were the named plaintiffs. The states

asserted a wide array of legal theories based on the common law and on statutes. In general,

however, the main legal theories rested upon consumer protection statutes, antitrust statutes,

and racketeering statutes. The relief sought by the states included monetary damages for

expenditures made by the states to treat persons with smoking-caused disease, as well as

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other types of damages and wide-ranging injunctive relief.

All of the state cases resolved by settlement by the end of 1998. The first states with

trial dates -- Mississippi, Florida, Texas, and Minnesota -- settled individually, either prior to

trial or prior to jury verdict. The rest of the states settled as a group in November 1998. The

group settlement provides for $206 billion in payments over the first 25 years to the 46

settling states and five territories. Cigarette billboard advertising and advertising on public

transportation, stadiums, shopping malls, and video arcades are banned. Cartoon characters

also are banned from advertising. There is an end to the sale and distribution of merchandise

with cigarette brand names. Promotions are limited to one event per year for each tobacco

company. Three industry trade groups are disbanded. (Decisions on the use of the

settlement proceeds will generally be made by each state legislature. There are fierce battles

in most states over the use of the funds, with the public health and tobacco control

communities attempting to secure appropriate funding for tobacco control programs.)

A more detailed case study on one state’s litigation -- Minnesota -- appears below.

c. The Minnesota Tobacco Litigation

The Minnesota tobacco litigation was the most extensively litigated state Attorney

General tobacco case. The State of Minnesota focused intensive efforts on achieving the

production of documents from the files of the tobacco industry, eventually obtaining

approximately 35 million pages of documents which became accessible to all other litigants.

In addition, the Minnesota case proceeded to a four-month trial and settled only on the eve

of jury deliberations. A detailed review of the Minnesota tobacco litigation is instructive as

an example of the potential achievements in tobacco control which can be accomplished

through litigation.

I. Overview and Legal Theories

Minnesota filed its legal action against the tobacco industry in August 1994.18

Minnesota was joined as a co-plaintiff by Blue Cross and Blue Shield of Minnesota (Blue

Cross), the state’s largest private third-party payer of health care costs.19 The legal theories

18 State of Minnesota and Blue Cross and Blue Shield of Minnesota v. Philip Morris Inc. et al., No. C1-94-8565, Ramsey County District Court, Minnesota. For a full copy of the second amended complaint, see www.rkmc.com/tobacco.court121697.cfm

19 The author of this article represented the State of Minnesota and Blue Cross in the tobacco litigation as a member of the litigation team at the law firm of Robins, Kaplan, Miller & Ciresi, L.L.P.

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upon which the case was based were as follows:

Undertaking a special duty -- Factually, this cause of action was predicated

on the tobacco industry’s public statements -- starting with “The Frank

Statement” in 1954, which ran as a full-page advertisement in major U.S.

cities -- in which the industry promised to undertake efforts to research issues

relating to smoking and disease and to report the research findings to the

public. Legally, this cause of action was a common law claim, based upon the

fundamental tort law premise that “one who assumes to act, even though

gratuitously, may thereby become subject to the duty of acting carefully, if he

acts at all.”20 The State and Blue Cross alleged that the tobacco industry

assumed a special responsibility and duty to those who advance and protect

the public health through the tobacco industry’s public statements that: the

industry accepted an interest in the public’s health as a basic and paramount

responsibility; the industry would aid and assist the research effort into all

phases of tobacco use and health; the industry would continue research and

all possible efforts until all the facts were known, and the industry would

provide complete and authenticated information about cigarette smoking and

health.

Consumer protection statutes -- Most states, including Minnesota, have

comprehensive consumer protection statutes. In general, the Minnesota

consumer protection statutes were enacted to broaden the common law to

further protect consumers and encourage aggressive prosecution of

violations.21 In the tobacco litigation, the State and Blue Cross alleged

violations of four consumer protection statutes: the Consumer Fraud Act22, the

Unlawful Trade Practices Act23, the Deceptive Trade Practices Act24, and the

20 Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922); see also, Restatement (Second) of Torts Section 323 (1965).

21 See State ex rel. Humphrey v. Philip Morris, Inc., 551 N.W.2d 490 (Minn. 1996).

22 Minn. Stat. Section 325F.69.

23 Minn. Stat. Section 325D.13.

24 Minn. Stat. Section 325D.44.

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False Advertising Act.25 These causes of action alleged a continuing pattern

of statutory fraud by the tobacco industry.

Antitrust statutes -- The State and Blue Cross alleged that the tobacco

industry violated the Minnesota antitrust act26 by entering into a contract,

combination, or conspiracy in unreasonable restraint of trade in the market for

cigarettes. The complaint alleged that this contract, combination, or

conspiracy had the purpose and effect of restraining competition in the market

for cigarettes in Minnesota through restraining and suppressing research on

the health effects of smoking; restraining and suppressing the dissemination of

information on the harmful effects of smoking, and restraining and

suppressing the research, development, production, and marketing of a higher

quality and safer cigarette. This resulted in millions of persons beginning and

continuing to smoke, causing adverse health effects in millions of smokers,

causing the cost of medical care to increase dramatically, and impacting the

health insurance market in the United States as well as in the State of

Minnesota.

Equitable claims -- The State and Blue Cross pled two causes of action in

equity: unjust enrichment and performance of another’s duty to the public.

The unjust enrichment claim was based upon the tobacco industry’s reaping of

substantial and unconscionable profits from the sale of cigarettes in

Minnesota. The claim for performance of another’s duty was based upon the

tobacco industry’s assuming and owing a duty to pay for the harm caused by

its wrongful conduct. As a result, the State and Blue Cross were required to

pay for the medical costs stemming from the industry’s unlawful acts. Thus,

the plaintiffs bore a duty that -- in law, equity, and fairness -- ought to have

been borne by defendants.

Both the State and Blue Cross brought direct claims against the tobacco industry.

These were not “subrogation” claims where one party “steps into the shoes” of another (in

this case individual smokers) and asserts the rights possessed by -- and becoming subject to

defenses available against -- that person. Instead, the State and Blue Cross chose to proceed

25 Minn. Stat. Section 325F.67.

26 Minn. Stat. Section 325D.51.

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with a direct action against the tobacco industry because, from a practical perspective, this

was the only viable manner in which their rights could have been effectively enforced. In a

subrogation action, the tobacco industry would have been able to assert traditional

subrogation defenses, including the alleged comparative fault and assumption of risk of

individual smokers. To attempt to litigate these claims against the cigarette industry, one

smoker at a time, would obviously have been an impossibility.27

Recognizing this, the tobacco industry filed early motions challenging the direct

claims. The tobacco companies argued that, assuming anyone was injured at all, the State

and Blue Cross did not have standing to pursue the claims because they were only indirectly

injured (the smokers having been directly injured) and that the claims of the State and Blue

Cross were therefore “too remote.” The trial judge rejected the tobacco companies’

arguments, and the industry appealed (with respect to Blue Cross only) to the Minnesota

Supreme Court. The Minnesota Supreme Court upheld eight out of nine of Blue Cross’s

claims. The court found that Blue Cross was too remote and therefore did not have standing

to pursue the one common law tort claim for undertaking a special duty. However, the court

found that Blue Cross did have standing to pursue the consumer protection and antitrust

statutory claims. The court stated:

The legislature may, by statute, expand the connection between conduct and injury necessary to permit suit. On these claims, we hold that the broad grants of standing within the statutes themselves reach Blue Cross and allow it to joint the State of Minnesota in pursuit of relief for these claims.

. . .Each of these statutes contains specific authorizations for suit and each creates a private cause of action for any party injured directly or indirectly by a violation of the statute. These provisions reflect a clear legislative policy encouraging aggressive prosecution of statutory violations.28

The Minnesota Supreme Court also held that Blue Cross had standing to pursue its

equitable claims pursuant to the doctrine of associational standing “which recognizes that an

organization may sue to redress injuries to itself or injuries to its members.”29

ii. Discovery of Documents From the Files of the

27 For a discussion of the direct cause of action, see Wilson, G.L., and Gillmer, J.A., “Minnesota’s Tobacco Case: Recovering Damages Without Proof of Reliance Under Minnesota’s Consumer Protection Statutes,” 25 Wm. Mitchell L.Rev. 567, 572-576 (1999).

28 State ex rel. Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 495 (Minn. 1996).

29 Id., at 497-8.

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Tobacco Industry

With their legal theories affirmed, the State of Minnesota and Blue Cross set out on a

determined quest to uncover documents from the files of the tobacco industry. With 40 years

of previous litigation -- and startling revelations from documents in 1994 -- many observers

believed that no new discovery was needed. Minnesota, however, believed that the

disclosures to date were only the tip of the iceberg. In the end, Minnesota’s decision to

pursue document disclosures was validated. Prior to the Minnesota litigation, the tobacco

companies had produced only several million pages of documents. Minnesota would

eventually compel the production of approximately 35 million pages of documents.

Under U.S. pre-trial procedures, a party is entitled to obtain discovery -- including the

production of documents -- from other parties. For example, the Minnesota Rules of Civil

Procedure, Rule 26.02, which is similar to that in other states and in federal court, states:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at trial if that information appears reasonably calculated to lead to the discovery of admissible evidence.

Notwithstanding this rule, the tobacco industry fiercely fought disclosures.

Minnesota was forced to bring countless motions to compel the production of documents.

Tobacco industry lawyers played endless word games, claiming they did not know what

documents were being requested. (The lawyers claimed, for example, that they did not know

what the following terms meant: “tobacco and health,” “the properties and effects . . . of

nicotine,” “addictive,” and “document destruction policies.”) In addition to fighting a war of

attrition, the tobacco industry also had employed a strategy of international concealment,

conducting scientific research offshore, often at affiliated corporations. (Philip Morris, for

example, took advantage of its intricate corporate structure to claim that it had no obligation

to produce certain documents in the possession of overseas corporate affiliates.) There also

was evidence of documents having been shipped overseas, or having been destroyed. (One

Philip Morris document stated, “Ship all documents to Cologne. . . . Keep in Cologne. . . .If

important letters or documents have to be sent, please send to home - I will act on them and

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destroy.”30)

Another method by which the tobacco companies shielded their documents was to

assert improper claims of attorney-client privilege. Prior to the Minnesota litigation, the

tobacco industry had successfully executed a strategy -- directed by lawyers -- of withholding

important information on the health hazards of smoking by claiming privilege. In

Minnesota, the tactics of the industry and its lawyers were exposed. After extended and

intense litigation -- including more than 20 trial court orders and more than five appeals --

approximately 40,000 documents withheld on claims of privilege were ordered produced.

Ethical experts were shocked by the abuses of privilege which were uncovered. One expert

noted that the documents disclosed in Minnesota “will haunt the legal profession for a long

time” because they “show perversion of the lawyer’s role in counseling business clients and

exploitation of the attorney-client privilege to conceal deception.”31 The director of the

Minnesota Office of Lawyer Professional Responsibility suggested that the attorney behavior

was “far more than an ethical violation; such conduct may well constitute obstruction of

justice in violation of the criminal code.”32

In the end, the documents produced in Minnesota paint a disturbing picture of an

industry which, for decades, suppressed scientific research and information on the health

hazards and addictiveness of smoking, manipulated the amount and/or form of nicotine to

exploit the addictive potential of tobacco, and targeted marketing campaigns at youth. A few

examples from the documents illustrate the decades of deceit of the tobacco industry:33

The Health Hazards of Smoking: For decades, tobacco companies continued

to deny that it was proven that cigarette smoking caused disease. Indeed, it

was not until 1999 when Philip Morris admitted that, “There is an

overwhelming medical and scientific consensus that cigarette smoking lung

30 PM 1000130803.

31 Geoffrey C. Hazard, “Tobacco Lawyers Shame the Entire Profession,” Nat’l L.J., May 18, 1998, at A22.

32 Edward J. Cleary, “The Use and Abuse of the Attorney-Client Privilege,” Bench & Bar Minn., Sept. 1998, at 18.

33 A more detailed account of the document discovery efforts and document disclosures can be found in Ciresi, M.V., Walburn, R.B., and Sutton, T.D., “Decades of Deceit: Document Discovery in the Minnesota Tobacco Litigation,” 25 Wm.Mitchell L.Rev. 477 (1999), from which portions of this paper are adopted.

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causes cancer, heart disease, emphysema and other serious diseases in

smokers. Smokers are far more likely to develop serious diseases, like lung

cancer, than non-smokers.”34

However, the internal documents show that as long ago as 1958 most

of the U.S. tobacco industry apparently believed that smoking caused lung

cancer. This was documented in a memo written in 1958 by three British

scientists who visited the United States to meet with top officials and scientists

in the U.S. tobacco industry. One object of their trip was to find out “the

extent in which it is accepted that cigarette smoke ‘causes’ lung cancer.”

Upon completion of their trip, these British scientists reported widespread

acceptance of causation. In their trip report, they wrote:

With one exception [an individual not affiliated with any tobacco company] the individuals with whom we met believed that smoking causes lung cancer if by ‘causation’ we mean any chain of events which leads finally to lung cancer and which involves smoking as an indispensable link.

(BAT 105408490)

Another document, written by a tobacco industry lawyer in 1980, sets

out some of the reasons for the tobacco industry’s refusal to publicly admit

that smoking causes disease. The document was written at a time when the

BAT Group companies were considering changing their public stance on the

issue of causation of disease. The lawyer opposed such a change, and wrote:

If we admit that smoking is harmful to ‘heavy’ smokers, do we not admit that BAT has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been willfully killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems.

(B&W 680051009)

Addiction: Tobacco companies also denied for decades that

smoking was addictive. Once again, however, the internal documents

34 Philip Morris also admitted in 1999 that, “Cigarette smoking is addictive as that term is most commonly used today.” Several years earlier, the Liggett Group had admitted that smoking caused disease and was addictive.

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show that the tobacco industry long recognized that smoking was

addictive. For example, a report of discussions with industry research

directors in the 1950s recorded among their conclusions “it’s fortunate

for us that cigarettes are a habit they can’t break” (JH 000493). In

1961, a top industry scientist wrote, “ . . . smokers are nicotine

addicts” (BAT 30108362). In 1963, an industry lawyer wrote,

“[N]icotine is addictive. We are, then in the business of selling

nicotine, an addictive drug . . . .” (B&W 689033412). In 1969, an

industry scientist wrote, “I would be more cautious in using the

pharmic-medical model -- do we really want to tout cigarette smoke as

a drug? It is, of course, but there are dangerous F.D.A. [Food and

Drug Administration] implications to having such conceptualizations

go beyond these walls” (PM 1003289921). In 1978, a tobacco

executive wrote, “very few consumers are aware of the effects of

nicotine, i.e. its addictive nature and that nicotine is a poison” (B&W

665043966). In 1979, a tobacco executive considered the hypothesis

that “high profits . . . associated with the tobacco industry are directly

related to the fact that the consumer is dependent upon the product”

(BAT 109872505).

Again, one reason why the tobacco industry long continued to

publicly deny that smoking is addictive, despite these internal

admissions, was to avoid legal accountability. As one internal

document stated, “Shook, Hardy [long-time tobacco industry law firm]

reminds us, I’m told, that the entire matter of addiction is the most

potent weapon a prosecuting attorney can have in a lung

cancer/cigarette case” (TIMN 0107822)

The Manipulation of Nicotine: The internal documents also

demonstrate that the tobacco industry intentionally designed cigarettes

to exploit their addictive potential. While nicotine is a naturally

occurring component of the tobacco plant, the modern cigarette is a

highly engineered and sophisticated product in both manufacture and

design. Decades ago, the tobacco industry began to control and

16

manipulate the level and/or form of nicotine in cigarettes in a variety

of ways.

The tobacco industry has the capability of removing virtually

all of the nicotine from the manufactured cigarette. However, the

tobacco industry designs modern cigarettes to ensure that nicotine

levels fall within sufficient parameters so that a sufficient dose is

maintained for pharmacological and addictive purposes. As early as

1959, one tobacco company noted the need to find the “optimum

offer” of nicotine to consumers, recognizing that to lower nicotine too

much “might end in destroying the nicotine habit in a large number of

consumers and prevent it ever being acquired by new smokers” (BAT

10009915). In 1963, one tobacco company noted that “Certainly, the

nicotine level of B&W cigarettes . . . was not obtained by accident”

and that “even now . . . we can regulate, fairly precisely, the nicotine

and sugar levels to almost any desired level management might

require” (BAT 102630333). Another tobacco company referred to the

“habituating level of nicotine” and asked “how low can we go?” (RJR

504210018). At another tobacco company, scientists wrote that “we

have shown that there are optimal cigarette nicotine deliveries for

producing the most favorable physiological and behavioral responses”

(PM 2028813366).

Another method for manipulating nicotine developed by the

industry is to manipulate the form of nicotine by controlling the pH of

cigarette smoke. For example, the introduction of ammonia or

ammonia compounds in the manufacturing process can raise the pH.

As the pH rises, the smoke becomes more “basic” and results in an

increased amount of “free” nicotine, also referred to as “free base”

nicotine in the tobacco company documents. Free nicotine is more

volatile and physiologically active than bound nicotine. As one

tobacco company document explained:

In essence, a cigarette is a system for delivery of nicotine to the smoker in an attractive, useful form. At ‘normal’ smoke pH, at or below about 6.0, essentially all of the smoke nicotine is

17

chemically combined with acidic substances, hence is non-volatile and relatively slowly absorbed by the smoker. As the smoke pH increases above about 6.0, an increasing proportion of the total smoke nicotine occurs in ‘free’ form, which is volatile, rapidly absorbed by the smoker, and believed to be instantly perceived as nicotine ‘kick.”

(RJR 511223463)35

Targeting Youth: The tobacco industry is well aware of the fact that

most smokers start smoking when they are young. In high-income

countries, about eight out of 10 smokers begin while in their teens. In

low- and middle-income countries, most smokers start in their early

twenties, but the peak age of starting is falling in these countries.36

Publicly, the tobacco industry maintains that it does not want

youth to smoke. The internal documents of the tobacco industry,

however, demonstrate that the tobacco industry has long recognized

that the preservation of its market depends upon recruiting youth. As

one document stated, “Younger adult smokers are the only source of

replacement smokers. . . If younger adults turn away from smoking,

the industry must decline, just as a population which does not give

birth will eventually dwindle” (RJR 501928462).

Thus, the tobacco industry documents are replete with

discussions of marketing to youth (“Evidence is now available to

indicate that the 14 to 18 year old group is an increasing segment of

the smoking population. RJR-T must soon establish a successful new

brand in this market if our position in the industry is to be maintained

over the long term.”) (RJR 501630269) (“To ensure increased and

longer-term growth for CAMEL FILTER, the brand must increase its

share penetration among the 14-24 age group which have a new set of

35 For a more detailed discussion of nicotine manipulation, see Hurt, R. and Robertson, C., “Prying Open the Door to the Tobacco Industry’s Secrets About Nicotine: The Minnesota Tobacco Trial,” The Journal of the American Medical Association, Oct. 7, 1998, Vol. 280, No. 13, pp. 1173-1181.

36 World Bank, Curbing the Epidemic: Governments and the Economics of Tobacco Control, 1999, at 2.

18

more liberal values and which represent tomorrow’s cigarette

business.” (RJR 505775557) (“Kool’s stake in the 16-25 year old

population is such that the value of this audience should be accurately

weighted and reflected in current media programs.” (B&W

170052238). (“[T]he base of our business is the high school student.”)

(LOR 03537131) (“Marlboro dominates in the 17 and younger age

category, capturing over 50% of this market.”) (PM 2043828174) (“It

is suggested to develop a new RJR youth-appeal brand. . . .”) (RJR

501166152).

Another document discussed the need to counter World Health

Organization activities aimed at combatting youth smoking. The

document states, “We need to identify the three countries in each

region that the WHO will be targeting for special funding and muscle

and, where it makes sense from a market standpoint, allocate the

resources necessary to stop them in their tracks. We need . . . a well-

developed strategy for a number of issues to which the WHO has

given priority status. Examples include . . . juvenile smoking”

(PM2500103969).37

These -- and millions more documents -- were produced to the State of Minnesota

and Blue Cross over several years of pre-trial proceedings. During the pre-trial litigation,

however, most of the documents were sealed from the public under a protective order.

iii. Settlement of the Minnesota Litigation

On May 8, 1998 -- after nearly four years of intense litigation and nearly four months

of trial -- the Minnesota tobacco litigation settled on the day the case was to have been

submitted to the jury for deliberations and verdict. Under the settlement, the State of

Minnesota will receive payments in perpetuity. In the first 25-year period, Minnesota will

receive an estimated $6.1 billion. (Blue Cross will receive another $469 million over a five-

year period.) In addition, the tobacco industry is bound by unprecedented injunctive

restrictions, including injunctions against making material misrepresentations and against

37 For a more detailed discussion of the tobacco industry’s marketing to youth, see Perry, C., “The Tobacco Industry and Underage Youth Smoking: Tobacco Industry Documents From the Minnesota Litigation,” Archive of Pediatric Adolescent Medicine 153, Sept. 1999, pp. 935-941.

19

targeting children in the advertising, promotion, or marketing of cigarettes. The cigarette

industry also had to remove billboards in Minnesota and dissolve one of its trade groups.

Millions of dollars of the settlement proceeds were dedicated to establishing a non-profit

foundation -- the Minnesota Partnership for Action Against Tobacco (MPAAT) -- to support

tobacco control activities.38

Finally, under the terms of the settlement agreement, millions of pages of tobacco

company documents were released from the protective order and placed in the public

domain. The two document depositories which housed the documents during the litigation --

one in Minneapolis, Minnesota, where the U.S. defendants produced their documents, and

one in Guildford, England, where the BAT defendants produced their documents -- were

opened to the public. Millions of pages of the U.S. defendants’ documents also are on

Internet.39

d. U.S. Department of Justice Litigation

In September 1999, the U.S. Department of Justice (DOJ) filed a civil lawsuit against

the U.S. tobacco industry seeking to recover federal health care costs for treating smoking-

caused disease and wide-ranging injunctive relief. The DOJ lawsuit is based, in part, on the

federal Racketeer Influenced and Corrupt Organizations Act (RICO). The RICO statute was

initially passed to fight organized crime, and the DOJ tobacco suit is the first time that

federal officials have used the act against an entire industry. An appendix to the DOJ

complaint listed more than 100 allegations of racketeering acts.

B. Litigation in Other Countries

In the past few years, there has been a flurry of litigation filed against tobacco

companies in countries spanning the globe. There have been a few victories against the

industry (primarily for injunctive relief), and some defeats (including a notable defeat in

England). For the most part, however, the tobacco litigation is in its early stages and

predictions are virtually impossible.40

38 See Settlement Agreement and Stipulation for Entry of Consent Judgment, State ex rel. Humphrey v. Philip Morris Inc., No. C1-94-8565, 1998 WL 394336 (Minn. Dist. Ct. May 8, 1998), at www.rkmc.com/settlement.pdf

39 See, e.g., www.tobaccoarchives.com and www.house.gov/commerce/TobaccoDocs/documents.html

40 The information in this paper on litigation in other countries comes from a variety of sources, including court documents, media accounts, and personal communications with

20

Australia

In 1999, a smokers’ representative proceeding, or class action lawsuit, was filed in the

federal court, New South Wales District, against Philip Morris, Rothmans, and W.D.& H.O.

Willis. (Nixon et al. v. Philip Morris (Australia) Ltd. Et al [1999] FCA 1107) The federal

court summarized the complaint as alleging that these tobacco companies, which dominate

the Australian retail market, “embarked individually and collectively on a course of conduct

designed to create a false community perception about the risks associated with cigarette

smoking.” More specifically, the complaint alleges that the tobacco companies:

Advertised, marketed, and promoted cigarettes “as enhancing life and

enjoyment of life.”

Advertised, marketed and promoted cigarettes as healthy or safe, or

healthier or safer than other cigarettes.

Denied the existence of reliable evidence linking cigarette smoking to

disease and denied nicotine was addictive, or cast doubt on evidence

concerning these issues.

Lobbied various Australian governments not to restrict the marketing

of cigarettes or require warnings about health risks, with the result that

restrictions and warnings were introduced later, or were less

demanding, than would have otherwise been the case.

Intentionally remained silent about and/or concealed their knowledge

about the addictive effect of nicotine and the relationship between

smoking and disease.

Placed cigarettes in vending machines where they were accessible to

young people, and issued free and sample cigarettes

In August 1999, the federal court issued an opinion denying the tobacco companies’

motion for summary dismissal. The court also ruled that exemplary damages would be

available for the negligence claims (but not the trade practices claims).

The court also found that the case could proceed as a representative action pursuant to

44 Section 33C(1) of the Federal Court of Australia Act. The court found that liability issues

could be considered on a class-wide basis, but that the class members would have “to prove

important individual issues, notably reliance and damage.” The court rejected the reference

the author.

21

by Philip Morris to Rule 23 of the U.S. Federal Rules of Civil Procedure, which addresses

certification of class actions. The court stated that the U.S. rule was “substantially different”

than the Australian rule. The court also stated that there were substantial differences in U.S.

practices, “not the least routine (although not invariable) use of juries to determine class

actions and the frequency, and size, of awards of punitive damages.”

The judge also stated that steps should be taken “to prepare the matter for a trial at the

earliest practical date” in the year 2000. The judge stated, “There is some urgency about the

trial. Each of the six named applicants is said to suffer from lung cancer. I understand the

health of two of them is rapidly declining. No doubt many group members are in a similar

position.” The court stated that it would grant leave to appeal to a full court but wanted to

ensure that an appeal “would not interfere with the preparation for the trial. . . .”

Previously, in the early 1990s, the Australian Federation of Consumer Organisations

sued the Tobacco Institute of Australia. The Tobacco Institute had run an advertisement

asserting that “there is little evidence and nothing that proves scientifically that cigarette

smoke causes diseases in non-smokers.” After more than 100 days of hearings, the court

ruled in favor the consumer organizations and granted an injunction against the

advertisement.41

There also has been a successful personal injury case in Australia on behalf of a

person exposed to environmental tobacco smoke in the course of her employment.

Canada

In 1998, the province of British Columbia filed a health-care cost recovery lawsuit

which is modelled on the U.S. state Attorneys General actions. The British Columbia suit is

based upon the enactment of special legislation, the Tobacco Damages and Health Care Costs

Recovery Act. This act provided that the government has a direct and distinct action against

tobacco manufacturers to recover the cost of health care benefits that have been or will be

incurred by the government resulting from a tobacco-related wrong. The government may

recover the cost of health care benefits that have been provided to a particular person, or

recover on an aggregate basis for that portion of the insured population which has suffered

tobacco-caused disease. (The act also provides certain litigation rights for individuals,

including extending or reviving the limitations period; clarifies that statistical information

41 Daynard, R., “Judicial Action for Tobacco Control,” at 145, in Legislative Action to Combat the World Tobacco Epidemic, Roemer, R., second edition, (WHO 1993).

22

can be admitted as evidence for establishing causation and quantifying damages, and

provides a mechanism for imposing liability and apportioning liability.) The Canadian

tobacco companies have filed an action challenging the act as unconstitutional.

England

In England, a series of personal injury cases met a harsh defeat in 1999. A court

ruled that a number of the cases would be dismissed on the basis of the statute of limitations.

Under the British “loser pays” system, the costs of the defense were to be imposed on the

plaintiffs. The potential costs were reported to approach £14 million. To avoid the

imposition of costs, it was reported that the plaintiffs’ attorneys agreed not to take or pursue

certain tobacco cases for period of time.42

Finland

Years ago, an individual smoker filed a personal injury action in Finland. The case is

now in the appellate process. The intermediate court of appeals found liability but no

causation.

France

The first reported personal injury case was filed in 1996 by a smoker who

subsequently died of lung and larynx cancer. The smoker’s family is seeking more than

$400,000 from Seita, the French tobacco company. In addition, the insurance company

which paid for the smoker’s treatment and hospital costs is seeking $150,000.

Several other smokers also recently sued in France. In addition, a local branch of

France’s national health insurance program filed suit against four tobacco companies --

Philip Morris, Rothmans, Reynolds, and Seita -- in June 1999 seeking up to $90 million to

cover costs related to treating smoking-caused diseases.

In 1996, an association of biscuit manufacturers filed suit in Paris against Philip

Morris over an advertising campaign which suggested that the consumption of milk or

cookies posed a greater health risk than second-hand smoke. The court banned the

advertising campaign.

Germany

In 1999, an individual smoker filed a case against Philip Morris and R.J. Reynolds in

Germany.

42 Damiano, G., “Ghost of Litigation Put to Rest in the UK,” Tobacco Journal International, March 1999, at 11-14.

23

India

In India, there were legal developments of exceptional note in 1999.

Decision of the Kerala High Court

A division bench of the Kerala High Court, acting on a public interest writ, declared

smoking in public places to be illegal, unconstitutional, and violative of the right to life

enshrined in Article 21 of the Indian Constitution. The court further found that public

smoking is a public nuisance within Indian Penal Code and that public smoking is air

pollution as defined in relevant statutes. The court pointed out that India was one of

signatories to a World Health Organization resolution which urged member countries to

formulate a comprehensive national tobacco control strategy, and directed the state to

promulgate an order under the Criminal Procedure Code prohibiting public smoking.43

In the wake of the ruling of the Kerala High Court, it was reported that police

launched a drive to enforce the court’s directive. “The police are forced to apprehend as

many people as possible as they are supposed to file a report before the High Court a month

after the implementing the ban. The actual number of smokers held by the police throughout

the state is not available. However, the unofficial estimates put the number of those caught

by the police in one week at more than 4,000.” A smoker caught by the police would have to

face imprisonment of one month or a fine of up to Rs 500 as a nuisance under the Indian

Penal Code.44

In addition, sales of bidis plummeted from 30 to 50 percent in urban areas

immediately following the High Court’s decision. Major bidi manufacturers planned to

move the Indian Supreme Court against the ban.

Meanwhile, similar public interest petitions seeking bans on public smoking were

filed in two other High Courts, Tamil Nadu and Karnataka.

Petition Filed in the Supreme Court of India

The president of the Mumbai Regional Congress Committee filed a petition in the

Indian Supreme Court against the Union of India and the major tobacco companies in India.45

43 “HC Bans Smoking in Public Places,” The Hindu, July 13, 1999.

44 “Kerala Court Ban on Cigarettes Ignites Industry Anger,” Thiruvananthapuram, July 29, 1999.

45 Shri Murli S Deora v. Union of India & Ors.

24

The suit seeks to re-affirm the fundamental rights of the public to protection and to the right

to a healthy life and a clean and wholesome environment, as provided in the Constitution of

India. The suit alleges that the Union of India violated its constitutional imperative to protect

and improve the public health, “specially the health of children of tender age. . . .” The suit

states, “Instead of controlling and regulating the use of tobacco products, the government

has encouraged their sale and consumption,” and that Parliament “has done precious little to

control or even regulate the tobacco trade.” The suit also states that “. . . this Hon’ble Court

has in a catena of decisional law laid down that in the interest of preservation of fundamental

rights of citizens, this Hon’ble Court shall not hesitate to step in and fill the void in the

regulatory regime until the Legislature addresses the void.”

With respect to the tobacco companies, the suit states that, “With tighter controls in

developed nations, multinational corporations manufacturing tobacco products have

increasingly diverted their operations to developing states, such as India, deliberately

exploiting the lax control/regulatory regimes.” The suit seeks compensation of Rs 500 crore

to be paid by tobacco companies. The suit also seeks to direct the Ministry of Health and

Family Welfare to frame a national tobacco policy and seeks a wide range of injunctive

relief, including:

Banning smoking in all public places.

Directing private institutions to reserve certain zones for smoking and

maintain the rest as nonsmoking.

Placing improved warnings on cigarettes, for example, “Smoking Kills” or

“Smoking during pregnancy can damage the foetus.”

Restricting advertisements of tobacco products to black text on white

background, except for advertisements in places where entry is restricted to

adults only.

Banning advertisements in open locations and sports facilities.

Prohibiting brand stretching and surrogate advertising.

Directing the Ministry of Finance to prohibit public sector banks, financial

institutions, insurance corporations, and mutual funds from participating in the

equity or debt of any corporation engaged in the manufacture, sale, or

distribution of tobacco products.

Petition Filed in High Court of Delhi

25

The Voluntary Health Association of India filed a public interest writ in the High

Court of Delhi against, among others, the Union of India, the Board of Control for Cricket in

India (BCCI) , and the Ministry of Information and Broadcasting challenging tobacco

promotion efforts using the sport of cricket. According to the writ petition, the BCCI

controls the game of cricket in India and has permitted contracts allowing tobacco

promotions.

The petition notes the extraordinary popularity of cricket in India, stating that, “[i]n

India, cricket is the most popular sport and millions of children and young play

cricket....Millions watch cricket matches on television. At times on a day when an important

cricket match is scheduled, the normal life nearly comes to a standstill. Several Indian

cricket players are household names and have huge fan followings.” According to the

petition, the Indian cricket team in all international matches is sponsored by ITC, the leading

cigarette company of India (which is partially owned by BAT) and cricket players “have to

sport WILLS logo-- [an ITC cigarette brand] -- on their sportswear.” The petition also

states that the last World Cup cricket tournament on the Indian subcontinent was sponsored

by ITC and was called “the WILLS World Cup.” ITC and another tobacco company,

Godfrey Phillips, also have entered into individual contracts with cricket players to promote

their cigarettes and, as a result, a number of players display logos of cigarette brands on their

sports equipment.

The petition relies upon fundamental guarantees of the Indian Constitution. Certain

provisions regarding the protection of children are specifically cited.

For relief, the petition seeks the cancellation of cricket team sponsorships by any

cigarette company and the prohibition of cricket players from sporting cigarette brands. The

petition also seeks to stop the telecast of any cricket matches which are sponsored by

cigarette companies. The petition further seeks the production of documents relevant to the

issues in the case.

Ireland

A number of personal injury actions have been filed in the last few years in Ireland.

Israel

A smokers’ class action lawsuit was filed recently in Israel. In addition, a health

insurance company filed a lawsuit which was dismissed in September 1999, with the district

26

court judge ordering the health fund to pay the cigarette makers $7,000 in court costs.46

Netherlands

A Dutch smoker suffering from emphysema sued tobacco companies, as well as the

Dutch state. The plaintiff’s attorney was quoted as saying that the state was sued for not

taking sufficient steps to inform the public about the long-term effects of tobacco.

Norway

There are two personal injury cases pending in Norway, both filed in 1998. In

addition, there is a lawsuit pending on appeal involving passive smoking. In that case, a

woman who contracted lung cancer sued her employer’s insurance company for damages.

Japan

In Japan, a number of different types of cases have been filed, starting in the 1980s.

To date, none have been successful. Early cases raised the question of state responsibility in

regulating tobacco marketing, based on the consumer protection law. Other cases were filed

over public smoking.47 More recently, smokers have filed personal injury claims.

Marshall Islands

The Marshall Islands sued the major U.S. cigarette manufacturers in the Marshall

Islands. In 1998, an initial ruling of trial court found that the Marshall Islands had

jurisdiction over the defendants.

Peru

In August 1999, the Comision Nacional Pemranente de Lucha Antitabaquica --

COLAT-PERU began an opposition proceeding in the Peruvian Trademark Office against

British American Tobacco’s application for the trademark, “KOOL NATURAL.” The

application claims that KOOL NATURAL is a deceptive and misleading trademark.

Phillippines

In the late 1980s, a class action was brought in the Phillippines to force the domestic

licensees of Philip Morris and R.J. Reynolds to put the same labelling on cigarettes as in the

United States and to remove advertisements from radio and television, as is the law in the

United States.48

46 “Israeli Cigarette Case Rejected,” Associated Press, September 15, 1999.

47 Sato, H., “Policy and Politics of Smoking Control in Japan,“ Social Science and Medicine 49 (1999), at 594.

48 Daynard, supra n. 40, at 145.

27

Poland

In 1999, an individual smoker filed a personal injury.

South Korea

A South Korean with lung cancer filed a suit for compensation in September 1999

against the Korea Tobacco and Gingseng Corporation, a government-owned corporation.

Suits by Other Countries Filed in the United States

A number of countries -- Guatemala, Bolivia, Venezuela, Nicaragua, Brazil, and

Panama -- have filed suit against the tobacco industry in the United States. Most, but not all,

of the cases have been consolidated for pretrial proceedings in Washington, D.C. The

tobacco industry has brought a motion to dismiss, which is awaiting decision in the trial

court.

III. LESSONS LEARNED FROM LITIGATION TO DATE

The history of tobacco litigation to date should be closely studied by persons

interested in potential litigation against the industry. Several lessons are manifest. Litigation

against the tobacco industry offers huge potential, but also is extremely difficult. The

tobacco industry has virtually unlimited resources to fight its adversaries and for decades has

shown its willingness to engage in all-out litigation war to insure its success. Strategic

thinking and sufficient resources are necessary to take on the tobacco industry in litigation.

Another lesson of the litigation to date is the importance of industry document disclosures.

In the United States, commentators and analysts agree that the document disclosures from the

files of the tobacco industry were one of the major factors leading to recent courtroom

successes. This permitted the legal theories and evidence to focus on the wrongful and

illegal conduct of the tobacco industry in the United States, as opposed to focusing solely on

the sale of the product.

IV. ISSUES INVOLVED IN POSSIBLE CLAIMS AGAINST THE TOBACCO INDUSTRY

A myriad of issues must be analyzed before undertaking a claim against the tobacco

industry. The following are some issues to consider prior to any litigation.

A. Who Are the Plaintiffs

A lawsuit against the tobacco industry can be framed in a variety of different ways,

starting with the basic issue of who are the plaintiffs. Among the possibilities are:

Smokers -- either individual smokers or, where permitted, class

28

actions or consolidated groups of smokers.

Governmental entities -- national governments, state governments,

municipal governments.

Private entities -- for example, insurance companies which pay for

smoking-caused diseases.

NGOs -- which may have standing to sue in some jurisdictions.

B. Who Are the Defendants

Potential defendants to consider and investigate may include:

The Multinational Tobacco Companies -- Global tobacco markets

are increasingly dominated by a handful of multinational tobacco

companies. These few companies operate worldwide, often through

subsidiaries or joint ventures. Worldwide, U.S.-based Philip Morris

vies with the British-based BAT Group for multinational supremacy.

Philip Morris and the BAT Group each own or lease cigarette

manufacturing plants in at least 50 different countries spanning all

corners of globe.49 Other major international players include U.S.-

based R.J. Reynolds and, as of 1999, Japan Tobacco, a state-controlled

company which purchased the international business of R.J. Reynolds

in 1999.

Increasingly, some multinationals are moving into countries

formerly controlled by state monopolies and introducing aggressive

marketing programs to expand their markets. In the 1980s, for

example, U.S. tobacco companies relied upon the U.S. government --

and the threat of trade sanctions -- to open the cigarette markets in

Japan, Taiwan, South Korea, and Thailand.50

Other Private Companies in the Tobacco Business -- These may

include corporate affiliates of the tobacco companies (subsidiaries or

parent companies or sister companies) or business partners (for

49 Hammond, R., Addicted to Profit: Big Tobacco’s Global Reach, Essential Action, 1998, at 9.

50 Chaloupka and Corbett, “Trade Policy and Tobacco: Towards an Optimal Policy Mix,” in The Economics of Tobacco Control, Abedian, I., et al., ed. (Applied Fiscal Research Center 1998), at 138-140.

29

example, joint venturers). Another possibility are independent,

smaller private companies operating in particular countries.

Companies in the Chain of Distribution of Tobacco Products --

For example, distributors or retail outlets which illegally sell cigarettes

to youth.

State-Owned Tobacco Companies -- In some countries, state-owned

tobacco companies continue to dominate within their own market.51

This puts the state in the position of being a potential defendant in

tobacco litigation. In addition, in some countries, the state has an

affirmative duty to protect the public health.

C. What Are the Bases or Theories of Liability

What is the legal basis of the complaint? What did the defendants do wrong, and

what laws -- common law, statutory, constitutional -- are at issue? Deciding how to frame

the litigation and which causes of action to pursue demands disciplined and strategic

thinking. The best path may not be immediately obvious. For example, in the United

States, for decades individual smokers brought unsuccessful individual personal suits against

the tobacco industry. It was not until the framework of the litigation changed that the

litigation saw success. (Some of the new framework involved different plaintiffs -- i.e. state

governments as opposed to individuals -- and there also were different causes of action which

focused on the wrongful conduct of the tobacco industry.) In contemplating litigation, it may

be useful to think about other types of litigation -- i.e., personal injury, consumer,

environmental, constitutional -- that has been successful in each particular jurisdiction.

Some potential legal theories and/or conduct-based issues to consider include:

Fraud/misrepresentation -- based upon the tobacco industry’s denial

or minimization of the health risks and addictiveness of smoking, or

the tobacco industry’s concealment of its knowledge.

Tort claims -- for example, negligence (failure to warn about the

health risks/addictiveness of smoking,52 negligent design), product

51 The China National Tobacco Corporation is the largest tobacco company in world in terms of number of cigarettes sold. World Health Organization, World Health Report 1999, at 71.

52 In the U.S. litigation, the tobacco industry has successfully argued that failure to warn claims have been preempted by federal legislation requiring warning labels on

30

liability, undertaking a special duty.

Consumer protection statutes -- which protect consumers from fraud

and unfair business practices.

Antitrust statutes -- which prohibit actions in restraint of trade.

Conspiracy -- in some jurisdictions, there is an independent action for

unlawful conspiracies.

Express or implied warranty -- for public statements or

advertisements by the tobacco companies.

Restitution/unjust enrichment -- under a court’s equitable

jurisdiction.

Marketing/distributing cigarettes to youth -- in many jurisdictions,

there are legal prohibitions against marketing or distributing cigarettes

to youths of a specified age.

Environmental smoke claims -- for persons or entities affected by

environmental smoke.

Nuisance -- public or private nuisance.

Adulteration -- based on design and manufacture of cigarettes and use

of additives; in some jurisdictions, there may be relevant statutes

prohibiting the adulteration of products.

Low tar -- based on express or implied health claims for low tar

cigarettes.53

Smuggling -- an issue of enormous impact on a global scale. It is

estimated that one-third of global tobacco exports go to the contraband

cigarettes. See Cipollone v Liggett Group, Inc., 505 U.S. 504 (1992). However, the tobacco industry’s argument may not prevail in other countries, particularly where health warnings have not been mandated historically and where there is a lower awareness of the health risks of smoking, and where the legal framework is different from the United States.

53 Low tar cigarettes do not, in fact, provide the reduced health risks which many consumers believe. See, e.g., Hurt, R., and Robertson, C., “Prying Open the Door to the Tobacco Industry’s Secrets About Nicotine: The Minnesota Tobacco Trial,” The Journal of the American Medical Association, Oct. 7, 1998, Vol. 280, No. 13, at 1173-1181 (discussing “The Scam: Low-Tar, Low-Nicotine Cigarettes”); Bates, C., et al., “The Future of Tobacco Product Regulation and Labelling in Europe: Implications for the Forthcoming European Union Directive,” Tobacco Control 1999; 8:225-235 (discussing “the false claims of low tar cigarettes.”).

31

market, costing government treasuries thousands of millions of dollars

in lost tax revenues.54 The cigarettes involved include well-known

brands of multinationals tobacco companies. It has been reported that

“the evidence suggests that the tobacco manufacturers are the chief

beneficiaries of smuggling”55 and that “critics have long contended

that this trade could not go on without the industry’s knowledge and

support.”56

Constitutional claims -- based upon various constitutional mandates,

for example, the right to health. In addition, one commentator has

written that “A strong argument for maintaining that a government

does have a duty to promote positive health can be found in the

preamble to the constitution of WHO, which asserts that there is a

positive right to health. In ambitious terms it states, ‘The enjoyment

of the highest attainable standard of health is one of the fundamental

rights of every human being without distinction of race, religion,

political belief, economic or social condition’ (WHO 1946). If this is

a fundamental right, then presumably there is a correlative duty laid

upon governments to implement it. In other words, acceptance of the

WHO constitution commits states to health and welfare policies. How

far such policies can be implemented no doubt turns on the wealth of

the country, but there can be no doubt that wealthy Western nations

are committed to implementing fiscal and legislative policies to

enhance positive health.”57

D. Building the Record Against the Tobacco Industry

54 Joossens, L., Raw, M., “Cigarette Smuggling in Europe: Who Really Benefits?,” Tobacco Control, Spring 1996, vol. 7, No. 1, at 66-71.

55 Id. (“Given the sheer scale of smuggling, . . . it would be odd indeed if the industry had no idea what was going on.”)

56 “RJR Subsidiary Pleads Guilty to Smuggling,” New York Times, Dec. 23, 1998, at A1.

57 Calman, D.C. and Downie, R.S., “Ethical Principles and Ethical Issues in Public Health,” in Oxford Textbook of Public Health, Vol. 1 (3d edition 1997) (ed. Detels, R., Holland, WW, McEwen, J., and Omenn, G.S.), at 400.

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Constructing a documentary record against the tobacco industry -- identifying

wrongful conduct -- may be a crucial predicate for successful litigation. As detailed above,

there are now millions of pages of documents from the internal files of the tobacco industry

available in the public domain (most, but not all, on Internet). These documents, however,

need further review and analysis for particular countries and issues.

Beyond these previously-disclosed tobacco industry documents, consideration should

be given to other means to prove a case of unlawful conduct. For example, there may

be various mechanisms in individual countries to pursue further document disclosures. (The

millions of pages of documents disclosed to date are not an exhaustive set of documents for

all countries and all issues.) Law enforcement authorities should have mechanisms to pursue

information. Regulatory or parliamentary/legislative proceedings may be another mechanism

for pursuing further information from the tobacco companies. Official proceedings may also

be important for obtaining on-the-record statements from the tobacco industry on critical

issues, i.e. does smoking cause disease and is smoking addictive.58

Similarly, to the extent that meetings are taking place between government and

industry representatives, it is important to document the statements and representations being

made by the tobacco industry by, for example, requesting that the industry put its statements

in writing.

Another mechanism for document disclosures may be in lawsuits filed by the tobacco

companies against governments -- challenging, for example, newly-enacted tobacco control

legislation), NGOs, or individuals. Such litigation may be an opportunity for discovery from

the tobacco industry. For example, when the tobacco industry sued in Canada to have the

advertising restrictions of the Canadian Tobacco Products Control Act declared a violation of

free speech provisions, the Canadian government used the lawsuit as a vehicle to obtain

important documents from the files of tobacco companies.

Finally, in many countries, documenting the level of awareness among smokers -- or

lack of awareness -- of the health risks of smoking may be one important way of rebutting

the tobacco industry’s argument that the risks of smoking are “common knowledge.”

E. What Is the Requested Relief

Careful consideration must be given to the types of relief sought in any litigation.

58 In the United States, the sworn testimony of top tobacco company officials before a Congressional committee in 1994 that nicotine was not addictive sparked public outrage and played a role in ensuing litigation.

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The goals of advancing the public health and advancing tobacco control must be kept in the

forefront as the request for relief is framed.

Money damages

One type of relief is monetary damages. Oftentimes, substantial awards of monetary

damages against a wrongdoer will be a powerful incentive for that wrongdoer to change its

conduct in the future. In addition, monetary damages in tobacco litigation can compensate

for smoking-related expenses and be a source of funds for future public health and tobacco

control measures.

Monetary damages may include damages for personal injury to individual smokers or

groups of smokers. Another type of monetary damages is for recoupment of smoking-caused

health care costs by governmental or private insurance entities. If some sort of aggregated

damage award is sought, as in a health care cost recoupment action, substantial thought must

be given to how the damages will be calculated and proved by statistical evidence.

Punitive or exemplary damages, designed to punish a wrongdoer and deter similar

behavior in the future, may also be a type of available monetary damages.

Injunctive relief

Another type of relief which may be sought is injunctive relief which seeks to change

the conduct of the tobacco industry. The type of injunctive relief sought may include a wide

range of public policy initiatives, including:

Declaratory relief stating that the tobacco industry has engaged

in specified types of unlawful conduct.

Injunctions against future unlawful conduct.

Prohibiting tobacco advertising, marketing, and promotional

activities.

Mandating the public disclosure of tobacco industry

documents.

Undertaking corrective public education campaigns relating to

smoking and health.

Prohibiting smoking in public places.

Establishing smoking cessation programs.

Establishing programs to prevent the distribution and sale of

cigarettes to youth.

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Disbanding tobacco industry trade associations.

Equitable Relief

Typical types of equitable relief include disgorgement of profits and restitution.

F. How Will the Litigation Be Resourced/Financed

The tobacco industry has virtually unlimited resources and a ruthless (and well-

deserved) reputation for no-holds barred litigation in the United States. In the U.S. litigation,

for example, the tobacco industry for decades used its “General Patton” tactics to prevail

against relatively small plaintiffs’ law firms. It is not possible to match the industry’s

resources; however, a realistic assessment needs to be undertaken to determine what

resourses and financing is necessary in each jurisdiction.

Leading edge cases, in particular, require substantial resources. In the State of

Minnesota litigation, the industry marshalled 1,000 professionals to work on its defense and

employed more than 30 law firms. One defendant alone -- Philip Morris -- was spending

more than $ 1 million each week in the pre-trial phase of the Minnesota case. As a result of

the pathfinding work of the Minnesota litigation -- including the discovery of millions of

tobacco company documents -- smaller law firms are now able to pursue tobacco litigation in

the United States by taking advantage of the prior work.

In any jurisdiction, the costs and risks of unsuccessful litigation need to be assessed

prior to committing to litigation. Some jurisdictions have a “loser pays” system. In the

litigation in England, this led to the very real prospect of unsuccessful plaintiffs being

saddled with the litigation costs of the tobacco industry.

Different jurisdictions will have different potential routes for financing the litigation.

Some jurisdictions have statutory provisions for the payment of attorneys’ fees and costs to

successful plaintiffs. For example, the consumer fraud and antitrust statutes which were

utilized in the state Attorneys General lawsuits in the United States generally provide for the

payment by the defendant of the plaintiffs’ fees, in the event of successful litigation.

In some jurisdictions, the availability of contingent fees can be a significant factor in

beginning to level the playing field against a litigant as well-financed as the tobacco industry.

Under a contingent fee system, the attorney receives a fee only if the litigation is successful;

in that event, the attorney receives a percentage of the damages recovered. The contingent

fee system can enable access to the legal system for persons and corporations (and

governments) with meritorious claims who would otherwise be unable to afford costs

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associated with bringing a case to court. The fundamental right of access to courts -- for all

persons, regardless of wealth or social standing -- can be insured. And the claims can be

made against even the most powerful corporations.59

G. What Is the Jurisdiction and Venue and How Will the Judgment Be Enforced

Jurisdiction and venue are important considerations in any litigation. An additional

consideration in tobacco litigation -- depending on the choice of jurisdiction -- may be how a

judgment against a non-resident defendant will be enforced.

H. Litigation by Other Countries in the United States

As noted above, certain countries have filed lawsuits against multinational tobacco

companies in the United States. As with any decision in the arena of high-stakes tobacco

litigation, a decision to sue in the United States must be made only after careful consideration

of all factors relevant to each country or person/entity contemplating litigation.

There may be a number of reasons why a country would consider filing suit in the

United States, including, for example, the fact that certain multinational tobacco companies

are headquartered in the United States, discovery of tobacco company documents might be

more feasible under the U.S. rules of pre-trial discovery, and issues relating to enforcement

of any ultimate judgment might be simplified by a suit in the United States.

On the other hand, a number of factors point towards a suit in the plaintiffs’ own

country in the tobacco litigation. For example, it might be more appropriate for a court in

the home country to consider and rule on issues involving injunctive relief which will affect

conduct -- i.e. tobacco control activities -- in that country. Litigation on home turf also can

help build and sustain a profile for tobacco control over time.

In addition, the record of tobacco litigation in the United States must be viewed with

59 Because contingent fees can be such a robust weapon, it is not surprising that such fees have come under attack by certain interests. In reality, however, the contingent fee system has built-in incentives to self-police its use. For example, because the attorney will only receive compensation if successful, the attorney has compelling motivations to thoroughly analyze and evaluate the merits of any claim before pursuing it. Thus, rather than opening floodgates for litigation, the contingent fee system acts as an economic weeding-out process for claims that lack merit (while at same time providing persons with worthy claims the means to adjudicate them). Other safeguards are rules which penalize frivolous litigation. In the United States, for example, Rule 11 of the Federal Rules of Civil Procedure (and comparable state rules of procedure) provides that an attorney must conduct a reasonable pre-filing investigation; baseless filings are subject to court-imposed monetary sanctions.

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a discerning eye. Despite the headlines and some spectacular successes, tobacco litigation in

the United States continues to be a difficult undertaking. The U.S. courts, with few

exceptions, have been reluctant to certify class actions in tobacco litigation. Few individual

personal injury cases have proceeded to trial, the verdicts have been mixed, and, with

industry appeals, no individual smoker has yet received a money judgment in a traditional

personal injury case. Even with respect to the most successful tobacco litigation in the

United States -- the Attorneys General actions -- a careful assessment is required of the

potential for medical cost recovery litigation in the future. For example, in the wake of the

Attorneys General cases, there has been a wave of private third-party payors in the United

States suing to recover the medical costs of treating smokers. These include union trust

funds and health plans. Four federal courts of appeal issued opinions in 1999 dismissing

union trust fund cases on the basis that the funds lacked standing to bring direct actions

against the tobacco companies.60

It is also important to note that in the past the U.S. courts have not easily opened their

doors to foreign governments seeking to litigate claims in the United States. Recently, when

the government of Bolivia filed a suit against the tobacco industry in Brazoiria County,

Texas, the state court judge in Texas quickly transferred the case to Washington, D.C. and

wrote a scathing opinion.61 The judge listed the various countries which had filed suits

against the tobacco industry in the United States and stated, “Why none of these countries

seems to have a court system their own governments have confidence in is a mystery to this

Court.” The judge also stated:

[T]he Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian . . .even on the Discovery Channel.

. . .[I]t is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain’t in south-central Texas. . . .

The Texas judge also noted the court’s “daunting docket obligations” and stated that, “the

60 Joint Board Health and Welfare Trust Fund v. Philip Morris Inc., et al. , Nos. 99-3396-3397, Seventh Circuit Court of Appeals, Nov. 15, 1999; Oregon Laborers v. Philip Morris, 185 F.3d 957 (9th Cir. 1999); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 172 F.3d 223 (2d Cir. 1999); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912 (3d Cir. 1999).

61 Republic of Bolivia v. Philip Morris Cos., Inc., 1999 WL 1123000 (S.D. Tex. 1999).

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Court would be remiss in accepting an obligation for which it truly does not have the

necessary resources.”

One doctrine which may be raised in foreign litigants’ suits against the tobacco

industry in the United States is forum non conveniens. Under this doctrine, even if a U.S.

court has jurisdiction over a case, the court may, in its discretion, dismiss the case in the

United States.62 The forum non conveniens analysis focuses on where the litigation will be

the most convenient and serve the ends of justice. The court will analyze the private interest

factors, including the location of witnesses and sources of proof, and the public interest

factors. Each case will turn on its own facts. Before a court can dismiss a case on the basis

of forum non conveniens, it must find the existence of an adequate, alternative forum where

the case can proceed. When facing a motion to dismiss on the basis of forum non

conveniens, a plaintiff should seriously consider undertaking discovery -- including

document discovery -- of the defendant prior to the briefing and ruling on the motion. This

can be a significant opportunity to develop the facts of the case -- i.e. the location of

witnesses and sources of proof -- using U.S. pre-trial discovery proceedings.

If a case is dismissed on the basis of forum non conveniens, the plaintiff should

request appropriate conditions be placed upon the defendant by the U.S. court. For example,

in the litigation brought by the Union of India against Union Carbide Corporation for the

Bhopal gas leak disaster, the court granted a motion for forum non conveniens but imposed

significant conditions on Union Carbide. First, Union Carbide had to consent to jurisdiction

of the courts of India. Second, the U.S. court held that there would be reciprocal discovery

of Union Carbide and the Union of India under the U.S. Federal Rules of Civil Procedure,

subject to such approval as may be required in the Indian court which would be presiding

over the litigation. The court also noted that a judgment in the Indian courts would be

enforceable in the United States provided it was rendered under a system which provided

impartial tribunals and procedures compatible with the requirements of due process of law.63

62 See generally Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Piper Aircraft v. Reyno, 454 U.S. 235 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

63 See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 809 F.2d 195 (2d Cir. 1987). The Bhopal Gas Leak disaster was “the most devastating industrial disaster in history . . . .” Id., at 197. It occurred on the night of December 2-3, 1984 when deadly methyl isocyanate gas escaped from a plant in Bhopal operated by a subsidiary of Union Carbide. The Union of India brought suit in the United States because it was questionable whether the courts of India had jurisdiction over the U.S. corporation. In affirming the

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V. HOW GLOBAL TOBACCO LITIGATION MIGHT FACILITATE TOBACCO CONTROL MEASURES

As detailed above, tobacco litigation offers the potential for specific tobacco control

measures, both in terms of money (for tobacco control) and for injunctive relief. Beyond

this tobacco-specific relief, it is well-recognized that litigation can be a powerful force in

promoting public health by ensuring that the profit motive -- i.e. the prospect or reality of

large judgments -- provides incentives for producing safer products and responsible actions.

Indeed, the fear of financial losses from lawsuits in certain cases may work better than

regulation to keep products safe. Litigation can promote product safety, by leading to

changing the design of products, changing warnings on products, changing the conduct of

manufacturers. Wrongdoers are held accountable, and others are deterred from similar

wrongdoing. Litigation also can ensure equal justice for all citizens.

Public health commentators also have recognized the legal system as a public health

tool. The Oxford Textbook of Public Health, for example, states:

Public health is the process of mobilizing local, state, national, and international resources to ensure the conditions in which people can be healthy. . . .From the outset, public health embraced both social action and scientific knowledge.

. . .The scope of public health in the last part of the twentieth century has expanded greatly. Not only have the number of recognized health hazards to the public increased, but the strategies available to solve them have grown commensurately.

. . . Laws can be inspired by a sense of justice and right. . . . Where existing policies are inequitable or outmoded, the law has the capacity to serve as an instrument for change.64

dismissal on the basis of forum non conveniens, the Court of Appeals for the Second Circuit stated that Indian law would apply and that Indian courts were in superior position (to the U.S. courts) to construe Indian law. In addition, the court stated that, “Despite the contentions of plaintiffs and amici that it would be in the public interest to avoid a ‘double standard’ by requiring an American parent corporation to submit to the jurisdiction of American courts, India has a stronger countervailing interest in adjudicating the claims in its courts according to its standards rather than having American values and standards of care imposed upon it.” Id., at 201. The court also stated that, “Little or no deference can be paid to the plaintiffs’ choice of a United States forum when all but a few of the 200,000 plaintiffs are Indian citizens located in India. . . .” Id., at 202.

64 Detels, R., and Breslow, R., “Current Scope and Concerns in Public Health,” and Roemer, R., “Comparative National Public Health Legislation,” in Oxford Textbook of Public Health, Vol. 1 (3d edition 1997) (ed. Detels, R., Holland, WW, McEwen, J., and Omenn, G.S.), at 1, 16, 366.

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Similarly, officials at the World Health Organization wrote that, “With globalization

and privatization of the economy, public health law is vital to protect and promote public

health.” 65 These officials also noted that:

The success of such a legal approach is not . . . without limitations. The political, economic and social context of countries must be taken into account. The experience of health reform in many countries has been that political commitment, national capacity and resources to adopt and implement laws are lacking. Progress in these areas is vital for effective use of public health law. Finally, sufficient attention must be given to the significant regional and cultural variations which different nations give to law as an element of health policy. The concept of ‘the rule of law’ varies according to philosophical and cultural traditions. 66

VI. CONCLUSION

While the challenges of tobacco litigation are not to be underestimated, such litigation

does offer extraordinary potential for progress in furtherance of tobacco control and the

public health. Lessons from the history of tobacco litigation are a starting point for

consideration of litigation in other countries. In the end, however, it must be the laws and

legal framework in each country which provide the answers on to how to proceed. The first

step is the formation of creative alliances between a country’s legal and public health

communities, so that studied consideration may begin in earnest.

65 L’hirondel, A. and Yach, D., “Develop and Strengthen Public Health Law,” World Health Statistics Quarterly, Vol. 51, No. 1, 1998, at 79-87.

66 Id., at 79-87.

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