Fifteen months ago, lawyers and advocates in the Netherlands filed a complaint with the Dutch Public Prosecution Service (DPPS), asking DPPS to file charges against the four major tobacco manufacturers that operate in the Netherlands (Philip Morris International, British American Tobacco, Japan Tobacco International and Imperial Tobacco Benelux).
Article published at Hill, 26th of February 2018
The charges alleged that the tobacco industry knowingly and intentionally made cigarettes more addictive by adding hundreds of substances. The tobacco manufacturers are accused of attempted murder and manslaughter and/or premeditated attempts to cause grievous bodily harm, premeditated attempts to cause damage to health, and the falsification of documents. On Feb. 22, the prosecutor finally responded and declined to prosecute.
This is a blow for public health around the world. Action on Smoking and Health and our partners have been working to bring a criminal case against the tobacco industry in courts around the world, including in the U.S. While the DPPS arguments are oft-heard, they are also easily disproven, and should not be a barrier to a successful prosecution.
In fact, United States specific legal arguments and statistics provide a compelling argument that a U.S. prosecutor would be well situated to file criminal charges against the industry.
The United States also has the benefit of access to the Truth Tobacco Industry Documents; approximately 15 million tobacco industry internal corporate documents that reveal how much the industry knew and when, offering a U.S. prosecutor enough evidence to open a case.
One of the obstacles the DPPS points to is that, “smoking is addictive and this is common knowledge to everyone who takes up the habit.” This is wishful thinking. Virtually no one knows exactly how addictive smoking is, and the tobacco industry has been hard at work manipulating their products to make them more addictive over time.
Skeptics’ (including DPPS) main argument seems to hinge on their statement that “ultimately, it is the smoker — aware of the health risks — that accepts the considerable chance of any resulting health damage by starting to smoke or, having already started, not choosing to quit. Not everyone starts to smoke and there are people who do manage to stop.” There are numerous problems with this assertion.
First, as stated above, smokers are not truly aware of the health risks of smoking. Nearly 9 out of 10 smokers begin before age 18, when they are too young to legally sign a contract or drink alcohol in the U.S. They cannot legally consent to something as mundane as a loan, but according to the DPPS, they should be held legally responsible for their addictions.
The second point comes from public health, not from law, but it is no less salient. Addiction removes free will. While it may have been a choice to smoke the first cigarette, any cigarette after a person becomes addicted is no longer a choice.
According to the Centers for Disease Control and Prevention, in 2015, 68.0 percent of adult smokers wanted to stop smoking, and 55.4 percent made a past-year quit attempt.
These numbers clearly indicate that many people cannot simply choose to quit, even when they want to. In fact, it may be harder to quit smoking than to stop using cocaine or opiates like heroin, as seen in this 2012 study. This is no accident or coincidence.
The tobacco industry has genetically engineered their tobacco plants to contain double the amount of nicotine (the addictive element of cigarettes).
Third is that the smoker “accepts the considerable chance” or assumes the risk of health damages related to smoking. The tobacco industry has also tried the smokers’ assumption of risk argument in U.S. civil cases; those failed
A U.S. prosecutor is particularly well situated to refute the arguments raised by the DPPS. In a Massachusetts case, Haglund v. Philip Morris, the Court unanimously rejected the tobacco industry’s defense and wrote, “If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose.”
Just because a smoker uses a cigarette as intended, does not remove the manufacturer’s responsibility for the dangerous product. Furthermore, it’s widely accepted that it’s legally impossible to consent to murder, a point highlighted in the brief presented to DPPS. Smoking kills half of all smokers; and those consumers cannot legally consent to that outcome.
While the case in the Netherlands had (and still has) the opportunity to be the first of its kind, it’s not isolated. A complaint has been filed in France. Advocates in many other countries are working with lawyers to determine how best to bring a case in their systems. And, there is legal support within the United States.
The Oregon Supreme Court not only discussed the “the possibility of severe criminal sanctions, both for the individual who participated and for the corporation generally,” as a result of aggressive and deceptive promotion of dangerous tobacco products, but stressed that these actions could “constitute at least second-degree manslaughter” under Oregon law.
Most damningly, the tobacco industry itself has expected this for decades. In an internal company memorandum, a lawyer for the tobacco company Brown & Williamson wrote, “If we admit that smoking is harmful to heavy smokers, do we not admit that BAT [Brown & Williamson’s parent company] has killed a lot of people each year for a very long time…I foresee serious criminal liability problems.”
Smoking is still the number one cause of preventable death in the US and around the world. Tobacco control measures like civil litigation, legislation, and even the tobacco treaty, the Framework Convention on Tobacco Control, have made progress, but people are still dying.
The lawyers in the Netherlands intend to appeal in an Article 12 proceeding. The courts there and around the world have it within their power to hold the tobacco industry criminally liable; the legal arguments are there.
Not only can a prosecutor, take this historic step, but they should. They could save thousands of lives. The United States was a catalyst behind the scourge of the tobacco epidemic worldwide; and a champion prosecutor in the U.S. could be the catalyst to end it.
Kelsey Romeo-Stuppy is a staff attorney for the Action on Smoking and Health.