Governments other than the US government have filed third party reimbursement suits in the United States. Guatemala, Venezuela, Bolivia, and Nicaragua all have cases pending in the federal district court in Washington, DC, seeking recovery of national healthcare expenses related to tobacco. Similar cases have also been filed in some other countries' own courts. A court in the Marshall Islands has permitted its government to proceed there against the international tobacco companies that supply the local market.10
The Canadian province of British Columbia has filed such a suit, as has the government health insurance body in the department of St Nizaire, France. Two private health insurers in Israel, covering the majority of Israeli citizens, have filed similar actions.
Building on the American experience, lawyers in several countries have brought individual suits against the tobacco industry. Argentina, Ireland, and Israel each have several such cases pending, and cases have also been filed in Finland, France, Japan, Norway, Sri Lanka, Thailand, and Turkey.
Tobacco litigation has a long history in Australia. In 1991 the Federal Court ruled that advertisements run in 1986 by the Tobacco Institute of Australia denying adverse health effects from environmental tobacco smoke violated the Trade Practices Act (1974), which prohibits misleading or deceptive conduct in trade or commerce.11
More recently, a representative proceeding (class action) against the major Australian tobacco companies was started in the Federal Court of Australia on behalf of persons who have suffered loss from smoking related disease. The lawsuit alleges liability in common law negligence as well as various claims under the Trade Practices Act (1974). In August 1999 the Federal Court refused the defendants' request to dismiss the class action proceedings and indicated that the case would be tried sometime in 2000.12
A second representative proceeding, on behalf of public health and medical organisations, was filed in the federal court in September 1999. This case seeks reimbursement of money spent on tobacco control since 1992 and judicial orders (injunctions) changing the industry's behaviour. As regards passive smoking, a claim brought in the Australian Human Rights and Equal Opportunity Commission under the Disability Discrimination Act (1992) was successful when it was held that the failure to provide access to a smoke free environment in a nightclub constituted unlawful discrimination in respect of a person with a disability due to asthmatic lungs. Compensation of $A2000 was awarded, and further orders are expected requiring the hotel in question to make adequate provision for access to smoke free areas for people with such a disability.13
The litigation situation in Britain has had serious setbacks. A group action by 54 people with lung cancer was killed off in March 1999 by a hostile judge who refused to exercise his discretion to allow an extension of the three year statute of limitations for 28 of the claimants and commented that the prospects of success for the remaining 16 claimants were “by no means self-evident.”14
Furthermore, potential claims by health authorities have faced political opposition from the Department of Health, and passive smoking cases have yet to succeed. The only silver lining is the success of workplace passive smoking actions at employment tribunals by non-smokers who have been forced to leave their jobs. The Legal Aid Board has refused to support tobacco litigation, which means that lawyers must proceed on a “no win, no fee” basis, taking a commercial view of the risk and likely rewards. If a tobacco company wins, the plaintiffs' lawyers lose the value of thousands of hours of time and out of pocket expenses, but the afflicted smokers are responsible for the defendants' costs and face bankruptcy. (In the United States, the unsuccessful plaintiff does not have to pay the defendants' costs and does not therefore face such a severe disincentive to take legal action.) Indeed, in response to the industry's threat to bankrupt his clients, the experienced and dedicated solicitor for a group of smokers was forced to agree not to bring any more cases against any part of the tobacco industry for the next five years and against the defendants, Imperial Tobacco and Gallaher, for the next 10 years, once it became apparent that the trial judge was inclined to accept the defendants' arguments.
As well as severe “down side” risks, the “up side” is not as attractive in the United Kingdom as in the United States. In Britain there are not the prospects of very large punitive damages against tobacco companies if the action is successful. Individual US smokers have seen awards of tens of millions of dollars, but the outlook for a successful case in Britain would be around £100
000). The lengthy procedural battles will drain the resources of all but the wealthiest plaintiffs' lawyers, and the risk of failure and low level of potential reward make such actions very risky in the British courts. In contrast to the United States, in the United Kingdom there is no cadre of super-rich personal injury lawyers with the deep pockets to face the unfavourable economics and risks of tobacco litigation.
In Britain, the blame the smoker argument still holds great sway. It is widely assumed that the warnings and the high level of awareness of the dangers somehow absolve the tobacco companies of their responsibilities. As a result, the conduct of the tobacco companies since 1950 has not been examined in detail under oath in court. The decisive success of the US lawyers in exposing thousands of incriminating tobacco company documents and concentrating on arguments of addiction and the targeting of children has yet to be repeated in Britain, even though many of these documents reveal unethical (if not criminal) behaviour by British tobacco companies.
In Britain, however, a legislative and policy approach is achieving results. Taxes raised on tobacco in the United Kingdom exceed the value per smoker of the US master settlement agreement between the industry and the states by a factor of eight—with no payments to lawyers or risk of failure in court. Tobacco advertising is to be comprehensively banned, and existing health and safety legislation will be deployed to reduce passive smoking in the workplace. A white paper, Smoking Kills, sets out a comprehensive package of measures to tackle smoking. In the United States, such a national strategy would, without question, be blocked by Congress. Perhaps the success of litigation in the United States is a response to the failure of the legislative and executive branches of the US government to curb the excesses of the tobacco industry.