Tobacco, Global Public Health, and Non-Governmental Organizations: An Eminent Pandemic or Just Another Legal Product?

Malcolm, David J., Denver Journal of International Law and Policy

"Smoking is the chief single avoidable cause of death in our society and the most important health issue of our time."(1)

"Tobacco products have no safe level of consumption, and are the only legal consumer products that kill when used exactly as the manufacturer intends."(2)

I. INTRODUCTION

American actions and perspectives regarding tobacco have profoundly influenced the world in many ways. Health concerns first articulated by the Surgeon General in 1964(3) led to a new paradigm in how we view tobacco, public health, and smoking in general. The Surgeon General's 1964 report proved to be a watershed in America. It was the first of many government publications to detail the unhealthy medical effects of tobacco.(4) As a result, the U.S. government now regulates the formerly unfettered tobacco industry based, in part, on continuing medical revelations.(5) Despite a significant minority(6) of the American population that disagrees with the federal government, Congress and several executive agencies have enacted many laws and rules to regulate tobacco: including labeling,(7) advertising,(8) workplace rules,(9) and reporting.(10) Proposed federal regulations continue to surface.(11) The march to regulate tobacco consumption continues nationwide.(12) Anti-tobacco public announcements(13) and publications(14) are relatively common.

America continues a leading role in the legal arena too. Tobacco litigation in America entered its third wave(15) when states sued the tobacco industry. States claimed that the industry committed fraud, deception, and racketeering upon the public, thereby creating a causal relationship between public smoking and excess state Medicaid expenses.(16) By focusing on the industry's actions in the third wave of litigation, and not the smokers' behavior, the states avoid the winning industry defense of assumption of risk because the states(17) are third parties that never smoked.(18) The tobacco companies settled out of court with the states, agreeing to payments totaling $206 billion over the next twenty-six years. Additional conditions of the settlement are bans on advertising directed toward teens and children, and tobacco company-funded study of programs to reduce teen smoking and prevent tobacco related disease.(19) Non-smokers adopted similar strategies to sue the industry.(20)

Changing public perceptions and laws are like tremors that shake the tobacco industry's foundation. In 1997, California removed tobacco from a list of inherently unsafe consumer products that shielded manufacturers from product liability actions.(21) While in the 1970s Florida manufactured cigarettes and supplied them while in state prisons and hospitals, by 1994 Florida's position had changed diametrically from ratification to confrontation.(22) Congressional legislation may radically alter the present situation by shifting liability on a national scale.(23)

Although recent events continue to alter the American legal landscape on a regular basis, an in-depth analysis of the changes in the third wave of litigation and legislative proceedings affecting tobacco are beyond the scope of this article. This article's discussion of the changing legal strategies and results is limited to a general analysis as applicable in a global context.

Global attitudes concerning tobacco are similar to the predominate American perspective, but less pervasive in the public recognition of tobacco's dangers and set within a broader spectrum of beliefs, behaviors, and knowledge. Health issues are the leading reason for concern,(24) due in large part to world events in the later part of this century.(25) Several factors contribute to increasing tobacco consumption: rising living standards, the globalization of economies, technological innovations, and modern advertising.(26) Predictably, tobacco consumption increased dramatically in recent decades.(27) International and domestic health organizations are leaders in the anti-tobacco war.(28)

This article analyzes global tobacco issues within the context of non-governmental organizations (NGOs). Part II reviews the health aspects associated with tobacco. Part III examines public education and awareness in a global scope together with local, regional, and international efforts and resultant effects. Part IV addresses tobacco's effects upon children. Part V studies the matter of tobacco consumption as a vehicle for drug delivery within the scope of substance control. Part VI surveys the wide ranging economic issues that involve tobacco, including advertising, taxes, and workplace conditions. Part VII notes the call for an international framework for tobacco control and analyzes desirable subject matter for inclusion. Part VIII concludes with a summary of suggested actions to increase the effectiveness of the worldwide anti-tobacco struggle.

II. TOBACCO AND HEALTH

Although cigarettes are the most prevalent form of tobacco consumption, many other forms exist.(29) There are approximately 1.1 billion smokers worldwide, comprising about one third of the global population age fifteen and over.(30) Global estimates indicate 47% of men and 12% of women smoke.(31) Many smokers begin at an early age (in many countries the median age of initiation is below age fifteen), thereby lowering the age when a smoker will suffer smoking-related diseases and death.(32) As a result of nicotine addition, nicotine tolerance increases over time and causes smokers to increase their consumption to the extent they can afford.

Tobacco is known to cause undesirable health effects. Medical sources cataloged the effects over the last few decades.(33) Although the tobacco industry and some others still generally dispute the medical knowledge implicating tobacco,(34) the tide has changed since the early 1960s. The addictiveness of nicotine is a material factor in continued tobacco consumption.(35)

Smoking in developing countries became widespread in recent years. Trends indicate an increasing daily consumption per smoker as economic conditions improve worldwide.(36) Despite decreasing consumption in developed countries, the rapid increase in developing countries kept world consumption from decreasing.(37) While global cigarette consumption per adult remained steady through the early 1990s, global consumption increased as world population increased.(38)

Increased tobacco consumption corresponds with burgeoning health effects on the world's population.(39) Costs are more than just individual health; they include environmental, quality of life, and economic costs.(40) While life expectancy lengthens, the risks of infectious diseases decreases and the likelihood of noncommunicable or chronic diseases increases.(41) Chronic diseases remain incurable and the best solution, presently, is prevention. Associated with this situation is the "epidemiological transition"(42) that occurs as the developing states become more developed. The improving world economic condition generally accelerates tobacco consumption (a detrimental lifestyle risk factor), the epidemiological transition, and the increasing burden of suffering and disease caused by tobacco. Fortunately, prevention or cessation of tobacco consumption are effective means of countering tobacco's ill effects.(43)

Strong arguments exist for minimizing tobacco consumption. A simple economic argument posits that despite the short-term economic gains from tobacco,(44) the insidious nature of tobacco addiction and its long-term costs far outweigh the industry's economic value overall. In other words, if governments internalize the health care costs and lifetime productivity losses to offset tobacco benefits (e.g., jobs and revenues), the tobacco habit is a net drain on national economies overall.(45) A moral argument also exists for keeping adolescents from consuming tobacco or becoming industry targets.(46)

International law supports a fundamental right to a healthy life,(47) and indirectly supports anti-tobacco public health efforts.(48) States are obligated to protect their citizens' health, but, within the anti-tobacco arena, such protection is slow in coming, if it comes at all. Naturally, the state interest in its citizens' health should be balanced with personal choice. While promoting a legal and broadly accepted product, along with the individual right to consume tobacco, the tobacco industry generally prevented states from acting upon their legal obligations to protect and improve public health in this arena. Fortunately, the tide is turning against the industry due in large part to relentless efforts of NGOs.(49)

The increasing predominance of global tobacco consumption causes mixed opinions. Some organizations, for example the World Health Organization (WHO) and the U.S. Department of Health and Human Services (HHS), are quite alarmed by the trends and projected statistics.(50) The WHO's Constitution obligates it to minimize tobacco's unhealthy influence.(51) Although neutral in their stance, many governments implicitly condone the industry through their inaction. At the opposite end of the spectrum, the tobacco industry continues to zealously promote tobacco as a legal product. If one views the decades of medical research and present statistical projections as credible, then a question arises. What, if anything, should be done about tobacco consumption and global public health? This article examines the possibilities from a global perspective viewed within the context of NGOs, while trying to find a balance between personal choice, public health, and a legal commodity.

III. PUBLIC EDUCATION AND AWARENESS

Cultural acceptance of tobacco is generally widespread and longstanding.(52) Tobacco has been a legal product since its introduction from the New World in 1492. Thereafter, it gained popularity despite King James' 1604 admonition that "[s]moking is a custome lothesome to the Eye, hateful to the Nose, harmefull to the Braine, [and] dangerous to the Lungs...."(53) Popular culture normalized and glamorized smoking for most of this century,(54) and thereby reinforced the desirability of tobacco consumption. Often, tobacco consumption is presented as part of desirable lifestyle.(55) A cultural example that contrasts with American norms is the acceptance of betel quid chewing within Bangladeshi families while viewing smoking as a socially unacceptable habit.(56) Whatever the culture, a significant portion of the population views some form of tobacco consumption as acceptable. Despite cultural norms, people are commonly misinformed about risks associated with tobacco.(57)

To alter a culture's perceptions, significant efforts must be made to educate and persuade the society to accept a "cultural redefinition of smoking."(58) Public education is the first step in this process.(59) The American government attempts to alter public opinion regarding tobacco consumption with various forms of public education(60) and, ultimately, laws.(61) The United States, like most countries, tends to respond to its politic. Therefore, the social and political processes usually pull the government and its statutory framework rather than government pushing society. NGOs usually are the force that initially moves society in a different direction (e.g., mobilizing initial anti-tobacco efforts in the 1960s). Similar efforts occurred internationally, but NGOs lead the anti-tobacco crusade much more than various governments.(62)

Public education efforts are helpful, but information alone rarely changes a smoker's actions. Often, when a smoker knows that the habit is detrimental, he or she continues anyway. Information by itself usually is insufficient to alter a smoker's behavior. Common reasons as to why the smoker began smoking in the first place are peer pressure and social acceptance of the act.(63) Equally important is the addictive nature of nicotine, a drug present in all tobacco.(64) The Australian "Will Frank win" campaign illustrates how addictive smoking can be and how a hard-hitting campaign can succeed.(65)

Anti-tobacco programs utilizing peer pressure, social acceptance, and group support can be productive.(66) NGOs take a leading and vital role in sponsoring annual events to reinforce a tobacco-free lifestyle (e.g., the World No-Tobacco Day(67) and the Great American Smokeout(68)). The events typically educate the public, explain medical effects of tobacco, encourage abstinence or cessation, and support both the user and nonuser.

The World No-Tobacco Day is an example of implementing the WHO's duty "to assist in developing an informed public opinion among all peoples on matters of health."(69) Its manner of presentation is notably adult and addressed to a reasonable, intelligent person with a tone that is educational, strategic, and somewhat evangelical. This is the public front in the WHO's war against tobacco.(70) The WHO's web site offers anti-tobacco strategies; persuasive explanations on the extent of the "public health disaster"; a reasoned explanation detailing the comprehensive necessity and responsibility for tobacco control; collaboration tips to be used on local, national, and international levels; warnings to targeted demographic groups (e.g., women); and contacts for further action and guidance.(71) The internet is an ideal medium for worldwide dissemination on an inexpensive and timely basis and as a supplement to traditional printed materials. WHO coordination with local and national NGOs creates synergy in the anti-tobacco struggle.

Over the last two decades, the Great American Smokeout evolved into a professional, positive, and engaging event. Although targeted at all smokers (most of whom are adults), the 1997 Smokeout focused on teens who compose 90% of all new smokers in the United States.(72) Closely associated with the Smokeout is the Great American Smoke-Scream, a week-long precursor to the Smokeout, with radio, television, and newspaper affiliations.(73) The Smokeout's web page is slick, interactive, and geared to teens and preteens, potentially the most likely individuals to start smoking.(74) Plentiful graphics, questions and answers, and role models make the site entertaining and educational. The medium itself, a web page, is naturally familiar with today's youth. Closely allied with the Smokeout is the Campaign For Tobacco-Free Kids.(75)

When properly promoted, annual events benefit from public recognition and acceptance. For example, most Americans (including smokers) positively associate the Smokeout with anti-tobacco efforts. Successful events like the Smokeout tend to further the event and the sponsoring NGOs goals with the NGO prospering as a result. Such events serve as bully pulpits for the promoters while presenting targeted messages. The anti-tobacco messages probably are received best when differing messages target specific groups, such as smoking cessation messages to smokers and both educational and how to organize messages for nonsmokers. Typically, such anti-tobacco advertising must be unique to capture a potential or actual smoker's attention and get the message absorbed.(76) Anti-tobacco organizations posit that it is easier to keep a potential smoker from smoking than to get a smoker to quit.(77)

IV. TOBACCO'S EFFECT UPON CHILDREN

A. Influences Upon the Child

Nearly all tobacco consumers began as children.(78) Children are particularly susceptible to tobacco, both physiologically and psychologically.(79) One strategy to counter youth smoking is to promote smoking cessation programs for the benefit of both smokers and nonsmokers. Parents who smoke have a profound influence upon their children.(80) Their behavior normalizes smoking and is the dominant reason that those children are likely to also smoke.(81) Although it is critical to encourage underage potential smokers to avoid the addictive habit, it is just as important to assist the present tobacco consumer, youth or adult.(82) Tobacco consumers who begin at a younger age generally consume larger quantities, have an increased risk of death from a tobacco-related illnesses, and suffer the onset of such illnesses at a younger age.(83) Tobacco has life-long detrimental effects: in neonatal conditions, passively, and as a growing child.(84) Cognizant of this, the international community offers support.(85)

Youths are particularly susceptible to the slick advertising(86) of the tobacco companies.(87) The pervasiveness and magnitude of tobacco advertising is apparent when one learns that cigarette companies spend $16 million per day or $6 billion per year.(88) Anti-tobacco forces (typically NGOs) have nothing near the financial resources that the large transnational tobacco corporations (TTCs)(89) do. However the 1968-69, free counter-advertising under the American fairness doctrine(90) proved effective against tobacco ads.(91) The concept of counter-advertising is utilized today, albeit on a significantly smaller scale.(92) Counter-advertising clearly lessens tobacco consumption and, therefore, should be implemented on a global, national, and local basis.

Some commentators present a moral argument for tobacco regulation upon the tobacco consumer's status as a minor when first beginning to smoke or otherwise use tobacco.(93) President Bill Clinton presents such an example.(94) Even the tobacco industry tries to avoid an image of targeting youths as customers.(95)

There is close to universal agreement that children should not consume tobacco or be targeted as (potential) customers. Conversely, most smokers begin as teens.(96) Despite industry denials that it targets underage people, its advertising appeals significantly to "future" smokers.(97) This dichotomy between (a) the consequential, yet allegedly unintentional, acquisition of and alarming statistics concerning replacement smokers and (b) a hands-off attitude towards teens as potential tobacco consumers indicates an unresolved dilemma. A simplistic and one-sided response would be to severely limit or prohibit advertising, yet such a concept is close to a pipe dream under some legal systems. Tobacco is a legal product, the industry is very powerful and capable, and advertising is generally accepted in the world's cultures. Naturally, there are legal issues involved too. The issue of advertising is later examined in more detail in Part VI. For now, the dichotomy between children and "unintended" advertising effects is noted along with the greater susceptibility of adolescents.

B. Support from International Law

International law adds support to state efforts to regulate tobacco and prevent children's access to it.(98) There is a substantial worldwide consensus regarding a child's fundamental rights, as stated in the Convention on the Rights of the Child (the Convention).(99) The United States, however, is not yet a party to the Convention, although it became a signatory on February 16, 1995.(100)

Arguably, the Convention has the force of customary law(101) as a result of its rapid and near universal acceptance(102) and worldwide compliance due to of a sense of legal obligation.(103) The unprecedented acceptance of the Convention in such a short time by nearly all states indicates, at least, the creation of "soft law" by the parties. The Convention is "intended for adherence by states generally and [is] in fact widely accepted."(104) A sampling of the Convention's subjects indicates compliance by states from a legal sense of obligation (e.g., a definition of a child;(105) protection from narcotic drugs,(106) pornography,(107) abduction and trafficking of children;(108) and torture(109). One cannot reasonably argue that "a significant number of important states" did not adopt the majority of practices (herein discussed) detailed in the Convention to prevent the Convention from becoming "general customary law."(110) Therefore, the Convention is at least soft law and arguably has the force of customary law (excepting the controversial articles) and, in turn, is binding on states that have not yet ratified the Convention.

The Convention on the Rights of the Child offers a broad scope of protection for the world's children. The Convention states that "[i]n all actions concerning children ... the best interests of the child shall be a primary consideration."(111) Although tobacco takes decades to kill, it detrimentally affects a child's growth and development and, in turn, indirectly impacts a child's "inherent right to life."(112) States possess a mandatory obligation to "ensure to the maximum extent possible the survival and development of the child."(113) Therefore, being cognizant that tobacco imparts harmful health effects on both children and the unborn, governments have an obligation to neutralize, or at least minimize, tobacco's negative effects upon children. In particular, states possess an affirmative duty to prevent children from consuming tobacco directly or its byproducts indirectly.(114) This can be done by a full spectrum of regulatory means.(115)

Article 13 of the Convention concerns the child's freedom of expression and receiving "information and ideas of all kinds,"(116) including commercial speech regarding legal products. The tobacco industry has always claimed a right to advertise its products to the fullest extent possible. If one state prohibits any television ads for tobacco products, the industry complies in only that state, unless similarly required by other states. The difference between states is their legal systems (the process), not the resultant harm that affects the children and population in general.

Some states have touted tobacco's benefits in the past and, arguably, some justification may exist for advertising tobacco.(117) However, medical evidence clearly overcomes such perceived benefits. In light of the fact that minors are viewed "as incapable of exercising full autonomy of choice,"(118) the concept of open and uninhibited information may be restricted when the child's best interests so require.(119)

A state may exercise its police powers to protect its interests and, therefore, has the power to regulate tobacco to protect its youth. Possible restrictions are limited by what is necessary (e.g., banning television ads for tobacco products at times children are likely to be viewing), statutory mandates, and protection of the public health or the rights of others, such as environmental tobacco smoke (ETS) exposure.(120) When states regulate tobacco to protect their children, the reasons proffered are for the children's protection, not compliance with international law or custom.(121) Presently, international law and custom are not significant sources of protection in the struggle to control tobacco consumption. Despite the Convention's legal authority, it has not been, nor is it likely to be, applied as a mechanism to protect children from tobacco.

Because states implement diverse laws and consistently uniform standards are necessary for effective global tobacco control, global standards should be determined to implement authorized protections under Article 13. Within the scope of tobacco control, the Convention authorizes and obligates states individual]y, and supports the idea of a framework convention for tobacco control. A framework convention for tobacco control would be instrumental in implementing global standards. With uniform standards, present generally unaccepted practices that appear in minimally regulated countries could be avoided.(122) Although the legal authority exists, global implementation has yet to occur. A global will to regulate tobacco is evident; changing public opinion along with regulatory and legal changes indicate tobacco's zenith has passed, despite the industry's recent profitable successes.(123) The world is nearly ready to commit to a framework protection, and the WHO is the appropriate NGO to lead the effort' for a framework convention because of its expertise and stature in the field of tobacco control.(124)

Anti-tobacco public education, peer support, and advertising can lessen the rate of adolescent tobacco consumption. NGO programs and events are the most common, and probably successful, means of influencing youths.(125) The success experienced by model NGO programs indicate that all NGOs should join efforts with the media to promote the well-being and health of children as envisioned by the Convention.(126)

Government regulatory measures are vital in an anti-tobacco effort as a means of setting minimum levels of behavior (e.g., sales and advertising restrictions) but are generally incapable of leading the cause.(127) NGOs are best suited to alter public opinion and spearhead the battle against the tobacco industry on local, national, regional, and global levels. NGOs can, do, and should lead governments and the public to raise the regulatory constraints on the tobacco industry. While NGOs can pull tobacco control, they are incapable of pushing it. The converse is true for governments; they often push the issue by legislative and regulatory means, but seldom are able to pull it.(128) As leaders in the anti-tobacco cause, NGOs increase awareness, educate, and help to focus public opinion. Examples of NGOs doing this are the American Cancer Society and the WHO. NGOs are essential partners in combating underage tobacco consumption. The time is ripe for NGOs to lead a tripartite coalition of NGOs, state governments, and the public, to implement an international framework convention on tobacco control that includes regulative mechanisms to protect children from tobacco.

V. SUBSTANCE CONTROL

A. Medical Basis

Medical research has …

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Publication information: Article title: Tobacco, Global Public Health, and Non-Governmental Organizations: An Eminent Pandemic or Just Another Legal Product?. Contributors: Malcolm, David J. - Author. Journal title: Denver Journal of International Law and Policy. Volume: 28. Issue: 1 Publication date: Winter 1999. Page number: 1. © 2009 University of Denver. COPYRIGHT 1999 Gale Group.

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