Friday, 12 June 2015

Who kills the most human beings in the world?               

That question is easy to answer. It is the tobacco industry. Tobacco kills 5.6 million people each year. More than five million of those deaths are the result of direct tobacco use while more than 600 000 are the result of non-smokers being exposed to second-hand smoke. This means that in the first 14 years in this century alone, as many as 78.4 million humans have died as a result of tobacco smoke. That means that more people died during those years than who died in the Second World War. Tobacco caused well in excess of 100 million deaths in the 20th century. If current trends continue, it may cause one billion deaths in the 21st century as a direct result of people smoking tobacco and inhaling tobacco smoke.

In adults, second-hand smoke causes serious cardiovascular and respiratory diseases, including coronary heart disease and lung cancer. In infants, it causes sudden death. In pregnant women, it causes low birth weight.

Why are these mass killings being permitted to continue year after year?  That question is also easy to answer. The politicians that run our countries are too cowardly to outlaw the tobacco industry. They are afraid that the smokers in their countries will rise up and vote them out of office.

Now surely there is no doubt in any thinking person’s mind that those fools who smoke tobacco are also contributing to the deaths on non-smokers who are unfortunately in the immediate areas of where the exhaled tobacco smoke is lingering. These smokers are also the world’s worst killers. In the first 14 years of this century, these smokers have killed 8.5 million innocent non-smokers with their exhaled smoke.

Second-hand smoke is the smoke that fills restaurants, offices or other enclosed spaces when people smoke tobacco products such as cigarettes, cigars and pipes.  

Many years ago when I was sitting in a restaurant, a middle aged man came into the restaurant and sat at a table right next to me and began puffing away at his cigar. The acrid cigar smoke went up my nose and caused me to sneeze. I asked him to stop smoking but he just laughed and said, “Sit somewhere else if you don’t like the aroma of my cigar.”  I grabbed the cigar out of his mouth and dumped it into his soup. He stood up and as he headed towards me, I grabbed my bowl of hot soup and threw the soup into his face. He called for the manager. He didn’t know that the manager was a former client of mine when I was practicing law. I told him what had happened and then I said, “Throw this bum out of here!” The manager looked at the man and said angrily, “Sir. You have upset one of my customers. Leave this restaurant now and don’t come back.” He never came back.   

I admit that was an extreme way to deal with that problem but it was obvious to me that reasoning with that creep was a tactic that wasn’t working. Fortunately nowadays smoking in restuarants are forbidden in civilized countries. In fact in many countries, smoking is forbidden pretty well everywhere where people congregate and in some countries that includes city parks also.                                                                                         

The tobacco companies have been made to pay billions of dollars in penalties and yet, they still persist in manufacturing cigarettes, cigars and pipe tobacco to the detriment of the wellbeing of human beings.  They are now stepping even lower as human beings since they have also manufactured candy cigarettes in hope that the kiddies will buy them and eventually switch to real cigarettes.  

Nearly 80% of the more than one billion smokers worldwide live in low- and middle-income countries, where the burden of tobacco-related illness and death is heaviest. Tobacco users who die prematurely deprive their families of income, raise the cost of health care and hinder economic development. Unchecked, tobacco-related deaths will increase to more than eight million per year by 2030. More than 80% of those deaths will be in low-and middle-income countries.

In some countries, children from poor households are frequently employed in tobacco farming to provide family income. These children are especially vulnerable to “green tobacco sickness”, which is caused by the nicotine in the tobacco leaves that is absorbed through the skin from the handling of wet tobacco leaves.

Admittedly, governments in westernized countries have passed laws that prohibit smoking in cars (if children in them), buses, streetcars, trains, passenger ships, planes, most hotels and other public places. I remember when I was a six-year-old being in a plane that could only carry 24 passengers and a flight attendant. When we were in the air, she passed out cigarettes to the grownups who didn’t bring any with them. The smoke go so bad, my younger brother had to be given oxygen. Nowadays, if you smoke in a plane, you will be arrested as soon as the plane lands. Of course in the 1940s, this was the era where billboards showed medical doctors telling everyone that smoking a certain brand of cigarettes was good for their health.  

Almost half of children regularly breathe air polluted by tobacco smoke in public places. Over 40% of children have at least one smoking parent. Second-hand smoke causes more than 600 000 premature deaths per year. In 2004, children accounted for 28% of the deaths attributable to second-hand smoke. I will say one thing about tobacco. It is a sure way of culling the herd.

My wife and I don’t smoke and neither do our two adult daughters. I nearly got hooked on that habit when I was eighteen and serving in the Canadian Navy in the 1950s. Cigarettes in packages of 50 only cost us sailors 10 cents a package. What turned me off was watching some of my fellow seamen while we were at sea begging for cigarettes when they had none left.  Can you imagine how much money I didn’t spend buying that filthy and dangerous weed. I estimate that I put well over a hundred thousand dollars to better use and I also saved my own life from dying from lung cancer.

Now the rest of my article is going to be about a civil case that was heard  recently in a Superior court in the Province of Quebec in Canada. It is an extremely informative case that will tell you a great deal about the tobacco industry.

Two class actions were amalgamated into one class action that was filed in Quebec against three Canadian tobacco manufacturers—-JTI-MACDONALD CORP, (JTM) and IMPERIAL TOBACCO CANADA LIMITED, (ITL) and ROTHMANS, BENSON & HEDGES INC (RBH) —all three hereinafter referred to as “the companies”

The plaintiff was CÉCILIA LÉTOURNEAU and since it was a class action case, there were thousands of other plaintiffs in Canada who would also benefit if the plaintiffs won. 

The judge was to search for answers to seven questions put to the companies. They were as follows:

(1) Did they manufacture and sell a product that was dangerous and harmful to the health of their customers?

(2)  Did they know, or can it be presumed that they knew of the risks and dangers associated with the use of their products?

(3) Did they knowingly put on the market a product that creates dependence and did they choose not to use the parts of the tobacco containing a level of nicotine sufficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population?

(4) Did they trivialize or deny or employ a systematic policy of non-divulgation of such risks and dangers?

(5) Did they employ marketing strategies conveying false information about the characteristics of the items sold?

(6)  Did they conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use?

(7)  Did they intentionally interfere with the right to life, personal security and inviolability of the class members?

The amalgamated class actions against the Canadian cigarette companies were maintained in part. In the amalgamated class action, the claim for common or collective damages was limited to moral damages and punitive damages since all the plaintiffs renounced their potential right to make individual claims for compensatory damages, such as loss of income and/or pain and suffering.

 With respect to those persons in one of the two original class actions who suffered from lung cancer, throat cancer or emphysema, the Court ruled that the companies were liable for both moral and punitive damages.  The judge ruled that they committed four separate faults, including under the general duty not to cause injury to another person, under the duty of a manufacturer to inform its customers of the risks and dangers of its products, under the Quebec Charter of Human Rights and Freedoms and under the Quebec Consumer Protection Act.

The Judge awarded moral damages in the amount of $6,858,864,000 against the companies.  Since this action was instituted in 1998, this sum translates to approximately $15,500,000,000 once interest and the additional indemnity are added. If the companies had settled with the plaintiffs in that class action soon after the claim was filed, they wouldn’t have had to pay the additional $8,642,000 in interest. The judge ordered that the awarded be divided as follows: ITL - $725,000,000, RBH - $460,000,000 and JTM - $125,000,000.

In light of the size of the award for moral damages in the first class action, the Judge felt obliged to limit punitive damages there to the symbolic amount of $30,000 for each of the companies.  This represents one dollar for each Canadian death the tobacco industry causes in Canada every year, as stated in a 1995 Supreme Court judgment.

In the second class action, the judge ordered that the aggregate award for punitive damages, at 10% of the total which is $131,000,000 and that it was to be divided among the defendants as follows: ITL - $72,500,000, RBH - $46,000,000 and JTM - $12,500,000.

Since there are nearly one million people in the Second Class Action, this represents only about $130 for each member.  In light of that, and of the fact that there is no condemnation for moral damages in that case, the judge refused to order distribution of such an amount to each of the members on the ground that it is not possible or would be too expensive to do so. 

Finally, the judge ordered that the provisional execution of the judgment notwithstanding appeal with respect to the initial deposit of one billion dollars of moral damages, plus all punitive damages awarded.  The Defendants were ordered to deposit these sums in trust with their respective attorneys within sixty days of the date of the judgment.  The Court would then decide how those amounts are to be disbursed at a later hearing.

The judge recognizing that it would be unlikely that the defendants could pay that amount all at once, the judge exercised his discretion with respect to the execution of the judgment.  Thus he ordered that an initial aggregate deposit of $1,000,000,000 be divided among the defendants in accordance with their share of liability and reserves the plaintiffs' right to request further deposits, if necessary.

With respect to the second class action claim in which the plaintiffs claimed that they were dependant on nicotine, the judge ruled that the defendants liable for both claims of damage with respect to the same four faults.  In spite of such liability, the Court refused to order the payment of moral damages because the evidence did not establish with sufficient accuracy the total amount of the claims of the members.

The faults under the Quebec Charter and the Consumer Protection Act allow for the awarding of punitive damages.  The Court sets the base for their calculation at one year's before-tax profits of each defendant, this covering both claims.  Taking into account the particularly unacceptable behaviour of ITL over the Class Period and, to a lesser extent, JTM, the Court increases the sums attributed to them above the base amount to arrive at an aggregate of $1,310,000,000, divided as follows: ITL - $725,000,000, RBH - $460,000,000 and JTM - $125,000,000.

The judge said that it was necessary to divide this amount between the two files.  For that, the Court takes account of the significantly higher impact of the defendants' faults on the First Class claims compared to the Second Class claims It thus attributes 90% of the total to the First Class defendants and 10% to the Second Class defendants.

Evidence reveals precious few public pronouncements by ROTHMANS, BENSON & HEDGES INC about the risks and dangers of smoking.  But one of them is most revealing. In a 1964 speech by its then-president, Mr. Tennyson said to the Advertising and Sales Association in Montreal.  It is difficult, and demoralizing (among other sensations), to read his concluding remarks: “As human beings, we are, of course, concerned with the health of our fellow man and we would certainly voluntarily refrain from contributing to their detriment.”

Did his firm voluntarily refrain from contributing to the detriment of those people who bought their cigarettes? Of course not. His firm should have sounded every siren to alert the general public that anyone who smokes their cigarettes will almost certainly succumb to a horrid and painful death after years of suffering from lung cancer or throat cancer or larynx cancer or emphysema, or any of a number of other horrible and dehumanizing diseases.  Of course had he done that, he would have seriously reduced the income coming into the firm’s coffers and naturally, finish his career in his firm. He would rather risk the lives of the smokers who purchased his firm’s product than risk his career. That also goes for the other presidents of the Companies. Today, through their websites and other current communications channels, they have move in the direction of raising the alarm but the Companies should have done much more in the past than they did in warning of the dangers. 

Tobacco promotion is inherently injurious to the consumer.  The problem is the nature of the product: a useless, addictive and deadly product.  It's wrong to advertise it.  It's a greater wrong to market it as a desirable product. It's an even greater wrong to market it as a desirable product to children, who cannot be expected to have the capacity to filter out tobacco advertising from information they otherwise receive as credible and informative.  

The vast majority of adult smokers became addicted while they were children.  The Tobacco industry claim that they never targeted the adult smokers  when they were children, and that the only goal of their marketing was to influence their brand choice after they were over 18 and after their decision to smoke had been established once they were addicted.                        

That excuse isn’t valid at all. The billboards showed strong handsome men or beautiful women smoking cigarettes and the children wanted to be like them. They felt that they were like adults if they were smoking a cigarette.

The Companies used other aspects of marketing to convey false information about their products.  They packaged the cigarette packages in colour and designs intended to undermine the health concerns of smokers. They branded their packages with names such as “light”, “smooth” and “mild” that implied a better health benefit.  They added to their cigarettes new features such as filters that would increase ventilation thereby convincing the users to believe in ways that made them thinking that their cigarettes were safer products than before. Is that any different than saying being shot by a 22 cal. bullet is safer than being shot by a 44 magnum bullet?  Both can kill you. The ads for many brands sought to reassure smokers who had health anxieties to not be alarmed and to also off-set the Companies’ guilt even when their customers continued smoking to their detriment. The advertising for many brands were explicitly conceived and designed to reassure smokers with respect to health risks.  Since no cigarettes marketed are indeed safe, these ads were designed to mislead consumers with respect to their health and wellbeing. As far as I am concerned, the advertising industry that advertises cigarettes for the tobacco industry is just as guilty as the manufacturers. Gambling is addictive but the gambling industry doesn’t advertise that advantages of gambling by saying you will lose less money on the slots than on the tables. To do so would increase the addiction of gamblers even more.

Starting in 1972, the Companies agreed among themselves to the first of a series of four “Cigarette and Cigarette Tobacco Advertising and Promotion Codes”, with the participation and approval of the Canadian Government.  The first rule of the first Voluntary Code excluded cigarette advertising on radio and television, and that code imposed several other restrictions on advertising.  Those limitations changed little over the next 16 years.  

In 1988, the Canadian Government passed a law, which for the first time imposed a total ban on the advertising of tobacco products in Canada by section 4(1): "No person shall advertise any tobacco product offered for sale in Canada".  In 1995, JTM and ITL successfully challenged that law and the relevant parts of it, including section 4(1), which were ruled unconstitutional. That is no different than the National Rifle Association in the US challenging state laws restricting the purchasing and owning military guns by private citizens.

Two years later, the government passed the Tobacco Act, containing what could be considered a softening of the prohibition, although it is doubtful that the Companies take much comfort from it. It is in force today and reads as follows:

“Subject to this section, no person shall promote a tobacco product by means of an advertisement that depicts, in whole or in part, a tobacco product, its package or a brand element of one or that evokes a tobacco product or a brand element.”

The advertising industry must be collectively weeping in their beer. Now they can no longer promote the mass suicide of cigarette smokers.

However the three Companies that had the judgement awarded against them may get some relief from the enormous payments they must pay. Let me explain.

In civil law, if a plaintiff is partially responsible in part for his suffering brought about by his own stupidity, the amount of the award can be reduced.

It is conceivable that the Companies may file appeals for this reason. I will give you an example. Suppose you are driving home in your car after having drunk ten bottles of beer. Another driver on your left drives into the intersection against the red light at a high rate of speed and T-bones your car and you are seriously injured. If it is established that because you were drunk and didn’t look to your left to make sure that it was safe to cross into the intersection, you can also be held partially responsible for your accident. The award against the speeding driver will be reduced to some degree because if you hadn’t been drunk when you proceeded into the intersection, you would have taken precautionary measures to make sure that you could drive through the intersection in safety.

The smokers initially chose to smoke cigarettes knowing that inhaling the nicotine would be harmful to them. Despite the warnings, they continued to smoke cigarettes, steadily increasing the harm to their bodies. Admittedly, they later became addicted to the nicotine and couldn’t stop smoking but that doesn’t change the fact that they didn’t have a gun put to their heads when they initially chose to smoke cigarettes. I readily admit however that may seem unfair of finding blame against people who are suffering from an addiction that they brought onto themselves via their own volition.

There is another reason why there could be an appeal.  The vulnerability of each individual member in the combined class action is essential to the validity of their claims. While it can be presumed that most if not all smokers were at least apprehensive about the danger to their health and the degree of their addiction. The significance to be attributed to the concept of personal autonomy could only be determined on an individual basis. Determining whether the Companies breached their duty to employ their best efforts to reduce the amount of toxicity in their cigarettes would depend on whether the individual plaintiffs were aware of what dangers lurked in the cigarettes. The issue of causation would also require an individual inquiry in each case as to whether or not there was a causal link between the suffering incurred by each individual plaintiff and the alleged breaches of the Companies. The presence of illness and the consequent vulnerability in each plaintiff (class member) is a factual issue that can only be decided on an individual basis. 

The issue of liability for breach of duty of care is also individual. Answering whether the Companies owe a tort duty to take reasonable care to take care not to cause harm to the health of each of the  class members depends on the individual circumstances of each of the class members and the knowledge of the Companies with respect to the potential harm in smoking their cigarettes. Even if a class action is permitted, determining the issues do not really advance the action because of the individuality of the issue of each breach. Moreover, there will be significant individual issues involving contributory negligence and causation. That is why it is so hard to apply a general award without knowing the personal backgrounds of each member of the class action.

Of course, a higher court could reject the proposition that vulnerability as a addictive smoker has to be proved on an individual basis. The Companies were well aware of the issue of addictive smoking and the dangers inherent to inhaling the toxic substances in each cigarette. By continuing to sell cigarettes to each of the class members provides some basis in fact to meet the test of commonality. The statistical evidence is admissible and simply bolsters the other available evidence establishing some basis in fact for the common complaints.

I hope that you have found this article interesting and informative. I will keep a watch on this matter and if an appeal is filed by the Companies, I will keep you posted at the bottom of this article as an UPDATE.  

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