Tobacco control through litigation and regulation from a European perspective

Abstract

Claims for damages were first brought against the tobbaco industry in the United States in the 1950s. The Industry was unbeaten until exposed industry documents showed that the industry had been aware of the risks of smoking for decades. States sued to recover health-care costs and this led to the 'Master Settlement Agreement', which imposed a number of regulatory provisions on the industry. Only in 2009 did the US legislator authorise the US Food and Drug Administration to regulate tobacco. The EU is a signatory of the WHO Framework Convention on Tobacco Control which recommends the use of litigation and regulation to continually reduce smoking rates. Since the 1980s, the EU has enacted over 20 measures regulating tobacco. Tobacco litigation also commenced in the 1980s, however save for one exception, no European case ever succeded. Litigation in Europe has generally been based on tort liability and product liability. Numerous substantive obstacles prevent plaintiffs from winning. Moreover the existing tobacco control regime compiles plaintiffs' difficulties. Laws could be amended to overcome such difficulties and facilitate plaintiffs. Nevertheless, for numerous reasons discussed in this thesis, litigation is not a suitable means of tobacco control. From the discussion in chapters one and two of this dissertation, regulation emerges as a better means of tobacco control. This does not mean that all forms of regulation are adequate. Regulation should seek to empower consumers to make informed decisions. Whilst some forms of regulation do contribute to this objective, by for example, informing consumers, others, such as disproportionately high taxes, seek to force consumers not to smoke. Current EU proposals are of both kinds. The thesis concludes that a policy oriented towards consumer sovereignty would be more appropriate for a union based on the four freedoms and free competition.