ASH Webinar on WHO FCTC Article 19: Using the Judicial System to Fight Tobacco
November 10, 2020

Statement from Kelsey Romeo-Stuppy, Managing Attorney at ASH

Article 19: How it has been utilized, how it could be utilized, and problems that might arise in the process.

My presentation today is going to focus on 3 things:

• Examples of Article 19 in action in the United States
• Some discussion of how Article 19 could be used for criminal liability around the world
• Some potentials concerns/pitfalls/unintended consequences

First, civil litigation in the U.S. To my knowledge, none of the cases I’m going to mention specifically reference Article 19 at any point in the proceedings, and as you all know, the United States isn’t party to the FCTC anyway. But they are all interesting examples of civil litigation around tobacco. Many of you are familiar with the first two, so I will just highlight them quickly.

MSA

The first case is the MSA- the Master Settlement Agreement. The Master Settlement Agreement (MSA) is an agreement reached  46 states U.S. states and the four biggest cigarette corporations in America (Philip Morris, RJ Reynolds, Brown and Williamson and Lorillard). The settlement was about the advertising, marketing and promotion of cigarettes.

The MSA took some big steps forward for tobacco restrictions- for example, it banned cartoons and outdoor advertising and forbids those companies from targeting youth. The decision also required that the companies pay the states- This was in 1998, but the decision requires the industry to pay the states billions of dollars a year, forever.

RICO case

In 1999, the United States Department of Justice (DOJ) sued several major tobacco companies for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO). The claim had many elements, and after lots of twists and turns over several years, in 2006, the Judge issued an almost 2000 page opinion holding the tobacco companies liable. The companies appeals, and the appeals court upheld the judgment. The court has legally determined the tobacco companies to be racketeers.

FDA case

This is a current case that ASH is involved in. ASH and our partners at the African American Tobacco Control Leadership Council and the American Medical Association filed a lawsuit again the FDA for their inaction on menthol cigarettes. For those of you that don’t know, menthol was left out of a ban on flavors, and we hope that this case will encourage a ban on menthol. It’s different from the cases I discussed previously, because its an administrative case against the U.S. government, not against the tobacco companies themselves. It’s still pending, so if you are interested, please feel free to follow the case.

Criminal cases

A lot of people forget that Art. 19 also includes criminal liability. The criminal justice system hasn’t yet been widely utilized for tobacco control, but I’m going to mention a few cases that have.

Netherlands

A group in the Netherlands brought a criminal case, including charges of fraud, manslaughter, and attempted murder. The victim was a young woman, a mother of small children, who became ill after battling a long time addiction to cigarettes. Unfortunately, she passed away last year. After several hearings in different courts, the appeals court determined that, in their view, this is an issue for the legislature. However, this case was a huge victory in many ways. It garnered an amazing amount of press and attention, and had over 30,000 people sign on in support. It changed public opinion around the tobacco industry.

France

A case was also filed in France on similar terms. Because of the legal structure in France, the complaint went first to a judge, who opened an investigation.

At ASH, we’ve been doing a lot of research and writing about a potential criminal case over the last few years. One of our major goals is to get past the “straight face test.” A lot of times, the first time we bring this up with an attorney or a law professor or a prosecutor, they will say something like “What?!? You can’t do that.” And then we will explain our legal arguments, and the facts that would support a case, and leave them with our briefs. A huge majority of the time, after they review the materials, they are convinced. The law is there, we just need to get the right prosecutor and the right court with political will, and criminal prosecution will become a reality.

Before I move on, I wanted to mention a resource for those interested in tobacco litigation around the world. The International Legal Consortium at Campaign for Tobacco Free Kids keeps an excellent database of these decisions. Click here to visit their database>

Concerns/Pitfalls/Unintended consequences

I’m short on time, but I wanted to take a moment to address the potential pitfalls of litigation. I’m including myself in this, because I am absolutely guilty of it, but often talks on Article 19 highlight the benefits of litigation without really discussing the risks. I actually think this would make for a fascinating presentation- perhaps a side event at a future COP.

One concern is time. I did not mention this case previously, but the class action case in Canada (which many of you are familiar with) has been going on for 20 years. Part of the RICO case, which was decided in 2006, was that tobacco companies must issue “corrective statements” about the actual harms of tobacco. The industry delayed in court for 11 years. No matter where you are or what case your bring, Tobacco litigation is a long haul.

A concern is that this could delay other anti-tobacco work. If a case is pending, advocates, government officials, and others might just “wait and see” instead of implementing other tobacco control efforts.

And there is a concern for unintended consequences. It is possible to spend a significant amount of time and money litigating, and not get anything for it. In the Canada case, they have a guilty verdict, but nothing has been paid to the class action victims yet. Another possibility in litigation is that the industry might win, pushing us further from our goal.

With that all said, I am not discouraging tobacco litigation, just encouraging those that pursue it to go into it with their eyes open. I’m a big proponent of litigation as one tool in the tool box, and I think criminal liability in particular is an exciting path (one of many) to a true tobacco end game.

To watch the complete recording of this webinar, click here.

To visit our Webinar Series webpage, click here.