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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