Manufacturing Death and Disease:

he Tobacco Industry
s the Cause of a Global Epidemic

MATTHEW L. MYERS, PRESIDENT

CAMPAIGN FOR TOBACCO-FREE
KIDS

Outline
The Campaign for Tobacco-Free
Kids
Tobacco Industry: How to Addict
New Smokers in Emerging Markets
Using the Courts to Promote
Tobacco Control
Litigation by the Tobacco Industry:
An Offensive Weapon to
Undermine Progress

About the Campaign for

Tobacco-Free Kids
CTFK is a leading force in the fight to reduce
tobacco use and its deadly toll in the U.S. and
around the world.
CTFK objective is to eliminate tobacco-related
death and disease in low and middle
income countries, by advocating for, and
supporting others to advocate for, the
adoption and implementation of effective
laws and policies.

The Bloomberg Initiative (BI)

to
Reduce Tobacco Use

In 2007, Mayor Bloomberg has committed

almost $600 million to tobacco control efforts
around the world. Gates has also committed
$125 million.
CTFK has been designated as one of five
partner organizations to coordinate activities
under the BI, working with governments and
NGOs to implement effective measures to
reduce tobacco use.
Other partners in are
Centers for Disease Control and Prevention
Foundation,
Johns Hopkins Bloomberg School of Public

BI Priority Countries

1. China
2. India
3.
Indonesia

4. Russia
5.
Bangladesh
6. Brazil

10. Egypt
7. Mexico
11. Ukraine
8. Turkey
9. Pakistan 12.
Philippines

13.
Thailand
14. Viet
Nam

The Tobacco Industry Is Using

the Same tactics and
Messages to Addict New
Smokers in Emerging Markets
that it Used for Decades in
Developed Markets

We Must Frame the Public

Debate

Tobacco companies are not like other

businesses. They:

1. Intentionally make their products addictive,

knowing that their products kill
2. Use all means legal and illegal to sell their
deadly products
3. Deceive the public and policy makers by
attempting to appear credible and trustworthy
4. Aggressively target vulnerable groups
5. Use lawyers, lobbyists, and public relations firms
to undermine good government and the will of the
people

Marketing in Developing
Countries
We should not be depressed simply
because the total free world market
appears to be declining. Within the
total market, there are areas of
strong growth; particularly in Asia
and Africa It is an exciting
prospect
--BAT

T.I. Strategies to Achieve

Its Goals
Expand globally to addict new consumers: Keep
in mind that more than three-quarters of the earth's
population lives in the emerging markets of Eastern
Europe, Asia, Latin America and Africa, regions of the
world that, for the most part, barely know more than a
handful of our many fine brands.
Believe me, that's going to change dramatically in the
next five years. Six short years ago, we claimed
10% of the world demand for cigarettes. Today, our
global share has climbed to 15%.... Imagine what that
number will look like in, say, 10 or 20 years, after
we've made significant inroads in markets only now
opening to us.

Source: http://legacy.library.ucsf.edu/tid/jcv28d00/pdf?search=%22emerging%20markets%22

The Four Stages of the Tobacco

Epidemic

Source: Lopez AD, Collishaw NE, Piha T. A descriptive model of the cigarette epidemic in developed countries. Tobacco Control, 1994; 3: 242-247.

T.I. Marketing Strategy

Create new users and keep existing ones
advertising, promotion and sponsorships
targeted at kids, young people and women
new product innovations
expansion into emerging markets
pricing strategies

You can download CTFKs report HOW DO YOU SELL DEATH at:
http://global.tobaccofreekids.org/files/pdfs/en/HDYSD_en.pdf

Marketing through Sports

1960
Source: Stanford School of
Medicine

1935
Source: Stanford School of
Medicine

2010
Africa Cup of Nations
Burkina Faso
Source: CTCA

Marketing through Music

Est. 1920s
Source: Stanford School of
Medicine

Undated
Source: Stanford School of
Medicine

Est. 2006
Burkina Faso
Source: CTCA

Marketing through Fashion

1950s
United States

Est. 2013
Nigeria
Source: CTCA

Brand Stretching
India Tobacco Companys Lifestyle Retailing
Business Division has established a
nationwide retailing presence through Wills
Lifestyle & John Players.

T.I. Must Find Replacement

Smokers
Marketing Appeals to Youth
BATs voluntary marketing code
an old trick with the same goals
Say you dont market to kids even
while engaging in tactics that do
precisely that, such as selling
single sticks that children can
afford and use images that appeal
to youth.

T.I. Must Find Replacement

Smokers
Marketing Appeals to Youth

Indonesia: 2013

You can download CTFKs report YOU ARE THE TARGET at:
http://
global.tobaccofreekids.org/en/industry_watch/marketing/youre_th
Philippines: 2013
e_target

Brazil: 2013

Indonesia: 2013

and Children

Investment/CSR in
communities where draft
legislation proposed

Source: Philip Jakpor. Nigeria: how British American Tobacco undermines the WHO FCTC through
agricultural initiatives: invited commentary. Tobacco Control 2012;21:220. doi:10.1136/tobaccocontrol19
2011-050411)

Conclusion
The behavior of the tobacco industry
must be recognized for what it is,
treated as a pariah and parasite
preying on our children, isolated and
countered in order to prevent the
tobacco epidemic in Emerging Markets

Using the Courts for

Tobacco Control

Force changes in industry behavior

Hold the Industry Accountable
Force governments to enact laws

21

A Clear Link Between

Smoking and Cancer
1950, an article was published in the British
Medical Journal linking smoking to lung cancer
and heart disease.
1954 the British Doctors Study confirmed the
suggestion, based on which the government
issued advice that smoking and lung cancer
rates were related.
1964 the United States Surgeon General's
Report on Smoking and Health began
suggesting the relationship between smoking

Tobacco Industry Duplicity

Tobacco industry recognized the legal threat and
had been quietly looking at the Rules that would
be used.
US Tort Law guided by a set of guidelines known
as the Restatement on Torts written by a group of
prominent lawyers, but there is a serious question
whether a prominent lawyer who helped
write the rules had a secret industry
connection
Previously if a product was shown to be
dangerous and caused harm, a manufacturer
was held automatically liable, but the
Restatement adopted just as the evidence
about cigarettes became public exempted from
strict liability harm from products considered
not unreasonably dangerous and tobacco

Individual Personal Injury

Litigation
in the U.S.
1954 early 1990s -- individual plaintiffs argued that
the tobacco industrys products caused their illnesses
Cases began as soon as the scientific evidence
emerged
Lawyers assumed these cases would be easy
harm was obvious
Product was shown by scientific studies to be
dangerous.

v.

Tobacco Lawyers being

Tobacco Lawyers
We are not going to tell you
smoking does not cause throat
cancer. But inhaling large
amounts of sawdust also increases
the chances.
- Dan Webb, lawyer for Philip Morris,
in closing statement to the jury in
the Engle case (Nov. 3, 1999)

Tobacco Lawyers being

Tobacco Lawyers
Where did [her cancer] come from?
The answer is that nobody can tell
us. There are still mysteries about
cancer.
- Ben Reid, lawyer for R.J.
Reynolds, in closing
statement to the jury in the
Engle case (Nov. 3, 1999)

Testimony of James Morgan,

President of Philip Morris
Q. Do you believe that cigarette
smoking is addictive?
A. Pharmacologically, my answer is no.
If they are behaviorally addictive or
habit forming, they are much more
like caffeine, or in my case, Gummy
Bears. I love Gummy Bears ... and I
want Gummy Bears, and I like Gummy
Bears, and I eat Gummy Bears, and I
don't like it when I don't eat my
Gummy Bears, but I'm certainly not
addicted to them.

Deposition in Broin Case (April 14, 1997)

Tactics to Obstruct the Truth

Tobacco lawyers pursue a war of
attrition: To paraphrase General
Patton, the way we won these
cases was not by spending all of
Reynolds's money, but by making
that other son of a bitch spend all
[of] his.
- R.J. Reynolds general counsel J.
Michael Jordan in a memo to fellow

Cipollone Lawsuit
Mid-1980s Rose and Antonio Cipollone 68 year old
with lung cancer. Rose Cipollone Claimed
Product defectively designed, that is - companies
researched and designed safer products but failed to
sell them
Failed to adequately inform consumers
Breached express warranty of safety implicit and
explicit in their ads

Cipollone Lawsuit
Documents produced an unprecedented view of
industry knowledge and activity. It was the first
time that it became known that the tobacco
companies were secretly and illegally withholding
documents that should have been produced.
Document Breakthrough
Judge ordered companies to turn over 300,000
documents
Said plaintiff had a legal right to know what the
tobacco companies knew and what it did or did
not do with regard to that knowledge

Personal Injury Cipollone

Lawsuit
Case a loss for the Cipollones
but a win for pubic health.
The document disclosure decision set an
important precedent because it
demonstrated that the tobacco
companies had not told the truth about
what they knew and that they had
illegally hidden documents
It was the first time that litigation
became a critical battle in the public
health campaign and not just a

Class Actions
Class Actions are cases in which a large
number of individuals are grouped
together to assert common claims
Allows Plaintiffs to jointly fund cases
Removes the ability of the industry to
try to blame the individual smoker
Creates a serious economic threat to the
industry a much greater incentive to
settle

Class Actions Broin v. Philip

Morris
Broin v.Philip Morris - Flight attendants sued
the tobacco industry for exposure to secondhand tobacco smoke.
Tobacco Industry settled for over $50 million
that went into a foundation that supports
tobacco control research
No injunctive relief sought because Congress
banned smoking on all commercial flights

Cases Brought by State

Governments
Beginning in 1994 individual state
governments sued the tobacco industry for
the cost of treating patients with smokingrelated illnesses
Attorneys General worked closely with
public health leaders
These cases led to Millions of new
documents obtained through document
disclosure laws (discovery) in the US
demonstrated that they tobacco industry
had illegally hidden literally millions of
documents from the courts
Source for bullet 3: See Hurt RD, Ebbert JO, Muggli ME, Lockhart NJ, Robertson CR. Open doorway to truth:
legacy of the Minnesota tobacco trial. Mayo Clin Proc. 2009 May;84(5):446-56. Review.

Cases Brought by State

Governments:
Master Settlement Agreement
(1998)
Largest civil settlement in United States
history
Requires industry payments to the states in
perpetuity, totaling about $206 billion
through 2025
Provides for public access to documents
produced in state and other smoking and
health related lawsuits
Required that the industry fund for 5 years
a national tobacco prevention foundation
Restricts tobacco advertising and marketing
Raised prices, causing drop in consumption,
especially among youth

Case brought by US Government:

United States et al. v. Philip Morris
Inc. (The Kessler Decision)
Trial judge found among other things:
Defendants hid from the public that cigarette
smoking and nicotine are addictive
Defendants falsely marketed and promoted
low tar and light cigarettes as less harmful
than other cigarettes
Defendants falsely denied that they
intentionally marketed to youth
No monetary penalties imposed on the
defendants but court ordered equitable relief
including banning the use of misleading
descriptors like lights ultra-lights or low-tar
and required them to publish Corrective
Statements

Litigation by the Tobacco

Industry:
An Offensive Weapon to
Undermine Progress

A Global Legal Fight

In 2010, Philip Morris Internationals
Chairperson and CEO Louis Camilleri affirmed
his corporations commitment to shareholders
to continue the global legal fight against
public health measures:
[W]e will continue to use all necessary
resources. . . and where necessary
litigation,
to actively
challenge
Source: Louis C. Camilleri. Presentation
at Morgan Stanley Global
Consumer and Retail Conference. Sept 17, 2010 (emphasis added).
unreasonable regulatory proposals.

The tobacco industry has never been bashful about

fighting back against attempts to regulate the
promotion of its deadly, addictive products.
Source: New York Times Editorial, April 9, 2012 (discussing tobacco industry challenges to US pack warnings) (emphasis added).

Tobacco Industry
Challenges to
Graphic
Health
Warnings
Challenge
Law in Domestic
Courts
Law
Unites States
Sri Lanka
Uruguay
Thailand
Nepal
Jamaica
Turkey

India Domestic Courts

Challenge Indian Point of Sale and
Smoking in Film Rules in Domestic Court

Point of Sale: Tobacco industry challenged the

constitutionality of the law that restricts advertising at the
point of sale. The court issued a stay without a hearing on
these rules. After years of inaction, the POS advertising rules
went into effect.

Smoking in Film: Famous movie director, Mahesh Bhatt,

claimed Rules regulating tobacco products on television and in
film are unconstitutional. After an initial split decision, the
Delhi High Court ruled against the government appealed.
Supreme Court stayed implementation of Delhi High Courts
judgment. Case pending. India has enacted new Rules which
Mr. Bhatt also has challenged.

Costa Rica (Domestic Court)

Challenge Costa Rican Tobacco Control Law
in Domestic Court
Immediately after a comprehensive new law was passed
with a broad majority, Petitioners filed suit challenging the
procedures by which the law was debated and voted on in
Congress although no objection was raised during the
debate and claimed the law violated principles of
proportionality, reasonableness and balancing of conflicting
rights)
Constitutional Court found no procedural or substantive
defects in the law

v.

Canada (Domestic Court)

Challenge Canadian Advertising, Promotion and
Sponsorship Law in Domestic Court

June 28, 2007: Tobacco companies challenged the constitutionality

of Canada's bans onlifestyle advertising and promotion, advertising
to young people, and false or misleading advertisement, promotion,
and sponsorship. The Supreme Court upheld the bans, holding that
public health outweighs companies' freedom of expression.

September 21, 1995: Tobacco companies challenged the

constitutionality of a law which regulates the advertisement,
promotion, and sale of tobacco products and requires health
warnings to be placed on tobacco product packages. The Supreme
Court held that the enactment of the legislation was constitutionally
within the power of the Parliament, but that sections relating to
advertising, trademark use, and unattributed health warnings
violated the right to freedom of expression. Because certain
challenged provisions could not be severed from the rest of the law,
the Court held all sections unenforceable.

v.

Norway (Domestic Court)

Challenge Norwegian Point of Sale Law in Domestic Court
invoking European Economic Area Agreement (EEA)

In the Oslo District Court, Philip Morris challenged Norways law that
prevents the public display of tobacco products for sale, alleging
that the ban was incompatible with the European Economic Area
Agreement.
District Court requested advice from the Court of Justice of the
European Free Trade Association States (EFTA) Court.
Among other things, the EFTA Court declared that the district court
would have to decide whether Norways ban was necessary, i.e.,
whether Norways legitimate health objective of reducing tobacco
use could not be achieved by measures less restrictive than a
tobacco product display ban.
Norway Prevailed

v.

Indonesia v. U.S. (WTO)

Challenge US Law in an International Trade
Tribunal

US law prohibits the sale in the US of flavored cigarettes (such as

clove, strawberry, or chocolate), but does not yet prohibit the
sale of menthol cigarettes. Instead, it gives the authority to the
F.D.A. to regulate or prohibit the sale of menthol cigarettes.
Indonesia, which exports clove cigarettes to the United States,
brought the matter before the WTO.
The WTO Appellate Body upheld an earlier Panel's ruling that,
while the restriction may be justified for public health reasons,
the US law is inconsistent with the USs trade obligations
because WTO disagreed with the US Congress that clove and
menthol cigarettes posed different issues. In the end the US did
NOT change its policy.
Ruling threatens the right of nations to protect public health;
should be entirely up to the U.S. to determine how to protect
public health.

Philip Morris International v.

Uruguay (1)
Challenge Uruguayan Packaging and Labeling
Law
in an International Investment Arbitral Tribunal
(and Domestic Court)
Philip Morris International (PMI), a U.S. company with a
subsidiary in Switzerland, and the worlds largest
multinational tobacco company, claims that Uruguays
restrictions on tobacco product packaging violate a bilateral
investment treaty between Uruguay and Switzerland, by
harming the value of PMIs investment in Uruguay and use of
trademarked brands.

Why is this case important for Uruguay?

Challenges Uruguays sovereign right to determine how
to protect the public health of its citizens.
The Uruguay law does not discriminate against Philip

Philip Morris International v.

Uruguay (2)
Why is this case important for the rest of the
world?
Sets precedent regarding reach of tobacco industry
- if PMI undermines Uruguays ability to protect its
citizens, tobacco companies will challenge other
nations tobacco control laws
Currently hundreds of bilateral investment treaties
worldwide; many potentially could serve as the
basis of lawsuits
This action could intimidate other small countries
which are unable to engage in expensive legal
battles

Philip Morris International v.

Uruguay (3)
PMI is trying to bully Uruguay
into weakening its tobacco
control laws. This is an example
of a rich corporation trying to
intimidate a small country that
has been a global leader in
fighting tobacco use, but has
limited resources to defend its
policies against expensive
litigation.

v.

Australia (1)
(High Court of Australia, WTO,
UNCITRAL)

Challenge Australian Plain Packaging Law in

Domestic Court,
an International Investment Arbitral Tribunal,
and WTO
Australias Tobacco Plain Packaging Act 2011 required
all tobacco to be sold in plain packaging from
December 1, 2012. It prohibited colors or brand logos
on the package and required that the brand name be
typed in the font and format required by the law

The pendency of this case has slowed the move

globally for the adoption of Plain Packaging for 4 years
Source: Government
of Australia,
Australia -Tobacco
Packaging
April 2012.).
until
Ireland
andPlain
the
UKInformation
hadPack,
the
courage to move
forward

Australia (2)
High Court of Australia

Each of the major tobacco companies challenged the plain

packaging measures claiming that the law not only deprived
them of the right to use their trademarks, but it was the same
as if Australia had taken and used their trademarks for its own
use. Thus, they invoked Constitutional provision that
prohibited a party from taking another partys property

During the proceedings:

the tobacco companies admitted that cigarette packaging
was like a billboard to advertise cigarettes, and was a
final frontier
Other tobacco companies called tobacco packaging the last
means to advertise cigarettes

The High Court ruled in favor of the Government of Australia

Summer of 2012

Source: Government of Australia, Australia -Tobacco Plain Packaging Information Pack, April 2012; Mitchel AD, Studdert DM. Plain packaging of
tobacco products in Australia: a novel regulation faces legal challenges. JAMA 2012; 307(3): 261-262.

Australia (3)
U.N. Commission on International
Trade Law
Philip Morris Asia (PMA) has brought the claim under a
Bilateral Investment Treaty between Australia and Hong
Kong. A Tribunal has been established to adjudicate the
dispute pursuant to the Arbitration Rules of the United
Nations Commission on International Trade Law (the
UNCITRAL).

PMA alleges that Australia has:

expropriated its intellectual property by diminishing the value of its trademarks;

failed to provide its investments fair and equitable treatment;
unreasonably impaired its investments; and
failed to accord its investments full protection and security.

PMA is seeking damages from Australia in the order of "billions" of

dollars.
Australia alleges that the Tribunal has no jurisdiction on various
grounds, including because PMA re-structured its investments with
the express purpose of bringing the claim, after the Australian
Government had announced plain packaging.
See
Source:
The
Government
Tribunal
of Australia,
heard
Australia -Tobacco
Australias
Plain Packaging
objections
Information Pack, April
to2012.
jurisdiction over 3 days

Australia (4)
World Trade Organization
Ukraine initially challenged challenged Australias measure in
the WTO. Ukraine has no tobacco trade with Australia.
Subsequently : Honduras, Dominican Republic, Indonesia and
Cuba also filed WTO challenges.
Tobacco industry funded law firms are representing many of
these countries
A panel has been established to hear the dispute. Australia
filed its first submissions in February 2015.
A ruling by the Dispute Settlement Body is not expected until
the first half of 2016, and a subsequent appeal is likely.
The case has more third parties than any other case in the
history of the WTO.
The complainants allege that plain packaging provisions
breach various provisions of the Agreement on Technical
Barriers to Trade, the Agreement on Trade-Related Aspects
Intellectual Property Rights, and the General Agreement on
Source: See Government of Australia, Australia -Tobacco Plain Packaging Information Pack, April 2012.
Tariffs and Trade.

Conclusion
For too long the tobacco industry has been able to
use the court system to threaten and intimidate
governments, and delay or over turn decisions made
by government officials
The tobacco industry has abused the judicial system
by rewriting the rules of court, hiding documents
that show what the tobacco industry knows and how
it markets its products.
More recent experience in the courts has
demonstrated that the courts can be a vehicle for
positive social change and exposing the wrongdoing
of the tobacco companies.
Public health leaders need to be aware of the power
of the courts and fully engage the judicial process

Online Resources Available to

Journalists
The Campaign for Tobacco-Free Kids http://www.tobaccofreekids.org/
Tobacco Control Laws http://www.tobaccocontrollaws.org/
American Legacy Foundation/ University of California Tobacco
Documents Library http://legacy.library.ucsf.edu/
Johns Hopkins Bloomberg School of Public Health - Institute for Global
Tobacco Control
http://www.jhsph.edu/research/centers-and-institutes/institute-for-globaltobacco-control/

WHO Tobacco industry monitoring database

http://www.who.int/tobacco/industry/monitoring/en/
Tobacco Tactics http://tobaccotactics.org/index.php/Main_Page

Constitutional Rights
Provisions in constitutions can explicitly
speak to the status of international
agreements in a countrys legal system
Where an international agreement has the
status of domestic law, it can provide
enforceable rights