Dialogue: Steven Price

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Let's not pass up the chance to make tobacco companies pay

By STEPHEN PRICE

The tobacco industry's nemesis, the anti-smoking group Ash, has found an unlikely ally in its campaign to convince the Government to sue the profits out of cigarette-makers - Hollywood.

Its latest docu-movie, The Insider, stars Al Pacino as Lowell Bergman (a journalist, a hero) who coaxes sacked tobacco executive Jeffrey Wigand to dish the dirt on his former bosses: that they knew all along that tobacco was harmful and addictive, they laced their products with cancerous additives and they thwarted his attempts to make safer cigarettes.

The story is largely true. Wigand's disclosures, and others equally shocking, have fueled an explosion of tobacco litigation in the United States.

Of course, there were lawsuits before that. But until 1996, the American tobacco industry had never been forced to pay a cent to its victims, invariably relying successfully on its favourite defence: "It's your own damned fault for not quitting, sponge-lung. You knew the risks (not that we admit there were any)."

That was before juries got a whiff of the stink in tobacco executives' boardrooms, including evidence that they targeted underage smokers.

Now the tobacco industry is running scared. It has agreed to pay about $10 billion a year forever to reimburse American states for smoking-related healthcare expenditure. Similar lawsuits are being considered in Britain, several states in Australia and several provinces in Canada. Now, Ash is trying to persuade the New Zealand Government to join the bandwagon. Prime Minister Helen Clark (who initiated the Smokefree Environments Act) has agreed to discuss the possibility.

Should the Government sue? What for, exactly? Would it win? We need to distinguish between two different types of lawsuit here. First are the individual cases, in which diseased smokers sue the tobacco companies for negligence. They claim the companies had a duty to warn them about the dangers or take steps to reduce the tar content in the cigarettes.

Those who took up smoking before warning labels became mandatory in 1973 have a stronger argument here, but they still face daunting legal hurdles. As British American Tobacco spokesman Tony Maguire told me:

"I refuse to accept that there's any Kiwi over 10 who's not fully aware of all the health risks of smoking."

In legal parlance, this translates as a defence of contributory negligence or voluntary assumption of risk. And that's assuming smokers can prove their illnesses were directly caused by the ciggies.

It seems a bit rough to blame people who became addicted before they were even aware of the health risks. But that's just what Justice Wright did in a leading British case last year. The judge chastised plaintiffs for their willful blindness to the risks, observed that they seemed able to quit fairly easily when they were diagnosed with serious conditions, and called their cases "speculative."

Because our courts generally follow the English ones, that case augurs ill for the dozens of New Zealanders poised to file similar lawsuits here.

Still, that leaves the second type of lawsuit - a claim by the Government against the tobacco industry to recover medical expenses incurred treating smokers. It is also based on negligence. The argument: cigarette makers know that many customers will get sick and end up in public hospitals, imposing costs on the Government. So they owe the Government a duty to warn smokers properly of the dangers, to minimise such costs.

The genius of this argument is that it sidesteps those awkward issues about whether particular smokers' ailments were caused by smoking. But that doesn't necessarily mean that the Government can look forward to hefty settlements like those in the US. Tobacco companies can say they have always obeyed Government regulations. They can assert that their warnings were adequate. They can blame the medical costs on the smokers.

And they can mount a plausible case that the Government hasn't really suffered any loss. After all, smokers die younger, and some researchers have found that smokers don't cost society over their lifetimes more than anyone else.

Besides, the Government's own figures show it is reaping about $3 in cigarette tax for every $1 it spends treating smokers (although arguably that money comes from the customers, not the companies.) Anyway, the companies ask, why waste health resources lining lawyers' pockets?

That is not to say we should reject the idea. It's worth looking into. It's certainly worth seeing how things unfold overseas. We should not pass up any chance to tackle a product that, according to the World Health Organisation, kills half the people it hooks.

Comments: sxprice@hotmail.com