The Tobacco Challenge

Legal Policy and Consumer Protection

Geraint Howells

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317013839
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho público

Addressing three central questions of legal policy, this is an interesting and comprehensive analysis of the need to control and regulate tobacco consumption. The core issues of the book are litigation vs. regulation with a comparative analysis of the US and European approaches; the challenge to regulate tobacco as a lawful product within constitutional limits to promote the reduction of risks to health and the extent to which consumers should be entrusted with information to make their own informed choices. Suggesting dialogue and transparency in policy development, this book covers advertising, psychology, ethics, economics and health in addition to the central debate about the litigation and regulation of tobacco and the role of consumer protection law and private law.

Chapter 1
Tobacco – A Challenge to the Law

A Introduction

Tobacco control is an emotive subject. The story of tobacco litigation and regulation has many colourful moments that will hopefully be captured in the ensuing pages, but as well as storytelling this book seeks to draw out some key lessons both for legal policy in a general sense, concerning the balance between private and public law, and to assist with the specific debates about how best to develop a tobacco control policy.

(i) Three Central Questions of Legal Policy

This book is a history of the way consumer protection laws have been used to de-normalise and hence reduce smoking and the resulting harm caused. It focuses mainly on the approaches in the United States and Europe, particularly the United Kingdom. Although rich in information, three central questions are at the core of the book.

Litigation vs. regulation First, epitomised by the contrast between the US and European approaches to tobacco control is the debate about the respective roles of litigation (private law) and regulation. Although it is too stark to simply say that Europe regulates whilst the US litigates – the US has had some regulation and this is likely to increase – there are important debates about the roles of private and public law. Though the US litigation has undoubtedly promoted public health regulation – not least by drawing attention to the bad behaviour of the tobacco industry – looking forward, long-term solutions seem to favour a regulatory response. Indeed, using litigation as a surrogate for regulation raises important questions about accountability for policy development in a democracy; whereas the fact litigation had to be resorted to might cause the workings of the existing political structures to be reviewed.

Constitutional limits to regulation A second major issue is the extent to which a state can regulate a lawful product like tobacco. Some constitutional disputes have concerned debates between levels of governments as to competence, which can relatively easily be resolved given political will. More challenging is the question of any constitutional limits on the substance of regulation that has been most hotly contested under the banner of commercial free speech. The general approach favoured in this work is that the fact tobacco is legally sold should not justify its promotion. It is a quirk of social and cultural history that allows it to be marketed. Tobacco would undoubtedly not be allowed to be sold if it were introduced for the first time today with our present knowledge of its dangers. Therefore public health concerns should weigh heavily when assessing restrictions against constitutional principles.

Regulating irreducible risks The third central conundrum is how do you regulate an accepted (although by many disliked) commonplace product that is inherently very dangerous given that social customs prevent its prohibition. The challenge for the public health community is to reduce the harm caused by smoking. This involves having to find measures that encourage fewer people to smoke and protecting the non-smoking public from environmental tobacco smoke (ETS). However, a contemporary challenge is how to address the residual smokers who continue despite knowledge of the risks. This policy debate is complicated because it is unlikely that the product can be modified to be made safe within tolerable limits. Admittedly, the industry has only fairly recently started to seriously consider developing safer products, now that the risks from the traditional products are so obvious that there is no public relations or litigation risk in admitting cigarettes are dangerous. Safer alternatives may be developed, but, nevertheless, the statement ‘there is no such thing as a safe cigarette’ is and most likely will always remain true.

One response is to keep to the simple message that all tobacco products are dangerous and prevent anything that might lead the consumer to believe otherwise. This manifests itself in the debate about disclosure of tar and nicotine content and the attitude of several public health advocates, especially in the US, who do not want any such disclosures. Following on the logic that encouraged bans on ‘light descriptors’ (because they mislead consumers as to their safety due, inter alia, to smokers compensating in how they smoked low tar cigarettes so they can impact as heavily as regular products), they do not want consumers to have any information from which they could imply a particular tobacco product was safer for fear this would give them an excuse to start or keep smoking lower tar products. However, this contradicts the right of consumers to be able to make informed decisions about the products they use. There may be reasons to ban descriptions such as ‘light’ but it seems to be a step further to ban factual information about the content of the product. Many people may compensate when smoking lower tar brands and so end up being just as harmed as if they had smoked any other product, but others may not. There may be no safe amount of smoke to inhale, but if tobacco is legal consumers have to be told the facts in a forthright manner and allowed to make their own judgments. More broadly, if safer – though still dangerous – products can be developed this should be encouraged and companies allowed to promote the alternatives. This will not be a welcome argument to many in the public health community, but one which flows from the inability to ban dangerous tobacco products and a desire that consumers should be therefore able to make informed choices. Hiding information from smokers will only make them distrust and resent regulation.

There are a wide range of tobacco products available and though it is easy to say that all tobacco products are dangerous it is hard to determine the relative risk of different products. These issues are rarely discussed in the literature, but so long as such products are legal, smokers must be given the facts and allowed to make rational decisions.¹ However, this does not mean giving tobacco companies an easy time and emphasising the serious risks posed by any tobacco product must be the central message.

(ii) Consumer Protection Measures

The World Health Organisation (WHO), in its Report on the Global Tobacco Epidemic in 2008 proposed the MPOWER package. This covered:

M	= Monitor tobacco use and prevention policies;
P	= Protect people from tobacco smoke;
O	= Offer help to quit tobacco use;
W	= Warn about the dangers of tobacco;
E	= Enforce bans on tobacco advertising, promotion and sponsorship;
R	= Raise taxes on tobacco.

This book will concentrate on the legal aspects associated with ‘W’ and ‘E’ with some attention given to ‘P’. In addition it will consider a topic of great importance, but too often overlooked, namely if, and if so, how cigarettes can be made safer. The need to develop complementary strategies is, however, well understood. A range of measures are being invoked to achieve tobacco public health objectives. Some important topics are not covered in this work, including education, campaigns to encourage smokers to quit and support them through the process,² as well as raising taxes on tobacco.³ Health and safety at work rules have also helped promote a smoke-free environment. This work, however, concentrates on the contribution of those consumer protection rules that control the composition, packaging, marketing and sale of tobacco products and the tobacco product liability litigation that has had a high profile in the US. ETS controls, although not strictly consumer protection laws, are discussed briefly as they have been central to current policy, into which the consumer protection rules fit. This policy can be understood as involving the ‘de-normalisation’ of smoking. This de-normalisation of smoking interacts with the law to make legal interventions more acceptable and these in turn further de-normalise smoking.

(iii) De-normalisation

De-normalisation is currently a popular concept in anti-tobacco circles. However, its exact meaning varies⁴ and is often not explicitly recognised in policy strategies. In Canada it is said to relate to ‘activities undertaken specifically to reposition tobacco products and the tobacco industry consistent with the addictive and hazardous nature of tobacco products, the health, social and economic burden resulting from the use of tobacco, and the practices undertaken by the industry to promote its products and create goodwill toward the industry’.⁵ It is probably easier to understand it as seeking ‘to change the broad social norms around using tobacco – to push tobacco use out of the charmed circle of normal desirable practice to being an abnormal practice’.⁶ It is countering the positive image created by the industry of smoking as an aspirational activity and fostering the idea of the smoker as an often unsuccessful loser, ostracised from the successful mainstream and using smoking as a crutch for a lack of self-esteem and subject to the odours, illnesses associated with it, to the extent of having to be physically separated from others when smoking.

This stigmatisation, as explained by Goffmann,⁷ leads to the ‘spoiled identity’ of the smoker. Research suggests the public have negative attitudes to smokers⁸ and such stigmatisation has an impact on reducing smoking rates. Smoking rates have been found to be lower in states where public sentiment is more negative to smoking and smokers that have experienced unfavourable public sentiment are more likely to quit.⁹ However, whilst this might be considered positive from a public health perspective there have been cautionary notes sounded about the need to balance the public health advantages of stigmatisation against the harm to those who are stigmatised.¹⁰

Just as the consumer protection laws form only part of the laws and policies aimed at restricting smoking, so equally are all of these only part of the factors affecting the de-normalisation of smoking which also includes many aspects of culture and custom. To take just one example, consider how almost unthinkable it is today that someone would start smoking in your home without first asking. With so many influences at work it is hard to calculate the impact of any one measure, but the consumer protection rules would seem to have a role to play as part of the broader campaign to de-normalise tobacco use.

B Law and Tobacco in the US and Europe

(i) Contrasting Legal Landscapes

In recent years the public health campaign against tobacco has become ‘legalised’ with product liability litigation in the US taking centre stage and Europe favouring a more regulatory approach.¹¹ Litigation against the tobacco industry is more to the fore in the US partly because the political system seemed for a long time unable to leg...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Abbreviations
• Dedication
• 1 Tobacco – A Challenge to the Law
• 2 Tobacco Litigation
• 3 Product Liability in the US – From Asbestos to Riches?
• 4 Product Liability Beyond the US
• 5 Regulatory Responses to Tobacco and Legal Challenges
• 6 Regulating Tobacco
• 7 The Future Challenges for Tobacco Control
• Index