Martyn Day, one of the solicitors involved in last year's unsuccessful litigation attempt against two British tobacco companies, told the House of Commons health select committee last week that “we will never get a clear picture of what the tobacco industry has been up to over the years.” The industry may never have to face a full trial again.
Mr Day, of Leigh, Day and Company, was giving evidence at the committee's inquiry into the industry's culpability for tobacco related illnesses and deaths.
Judges in this country, he said, are “keen to protect the industry's interests,” while successive governments have colluded with tobacco firms and have failed to curb their unethical practices.
The litigation attempt by the 53 former smokers with lung cancer collapsed when the judge, Mr Justice Wright, ruled that the case should not go to trial (BMJ 1999;318:623). The tobacco companies, Imperial and Gallaher, secured legal undertakings that prevent the solicitors from pursuing further claims and from releasing any incriminating evidence discovered during their investigations.
Mr Day compared the British litigation experience with the situation in the United States, where tobacco companies agreed to pay $368.5bn (£230bn) after a landmark settlement with the attorney generals from 40 states.
“In the United States,” he said, “the courts could get a clear picture of all the archive material from the ‘50s.” His firm, however, were only able to review a limited number of the British industry’s internal documents, and their findings cannot now be released into the public domain.
Mr Day told the committee that the tobacco companies knew by the 1950s that their product could cause cancer, but they “decided to stay silent about it.” They therefore failed, hesaid, in their statutory duty to protect their customers. Peter Wilson, executive chairman of Gallaher, recently admitted: “I accept that smoking as a product probably does cause diseases” (22 January, News Extra at www.bmj.com/cgi/content/full/320/7229/208/d).
By the 1960s, Mr Day said, the companies also knew that cigarettes were addictive. “In the United States, virtually all [litigation] cases are based on nicotine addiction. The industry here has obfuscated this issue, saying that cigarettes are only addictive in the way that chocolate is.”
Although he has not seen any industry documents referring directly to children as potential customers, he has seen reference to “young people or young users” in advertising strategies. “The clear logic is that companies need to attract young smokers.”
Dr Peter Brand, Liberal Democrat MP for Isle of Wight and member of the committee, asked Mr Day whether health authorities could still pursue a legal case against the tobacco industry.
He replied: “We obtained advice that NHS trusts or health authorities could make a claim against tobacco companies, but department of health lawyers suggested there may be a bar against this.”
Figure.
Vietnamese tobacco companies are pursuing the local teenage market with cigarettes called Rave, Boy, and Titanic. The latest pack from the HTF company, a Vietnamese manufacturer, shows teenage heart-throb Leonardo DiCaprio and actress Kate Winslet in a scene from the film Titanic. As Vietnam leads the world in illegally copying designer goods, the stars' images are almost certainly being used without their permission.
In May 1999 pop icon Robbie Williams was angered to find that his photo was being used without his permission by British American Tobacco to promote Benson and Hedges in Sri Lanka. An article in the forthcoming issue of the journal Tobacco Control challenges DiCaprio and Winslet to follow Williams's lead in condemning their exploitation.