Academic journal article Journal of Multidisciplinary Research

Tobacco-Smoke Litigation in Italy: Could the Marketing of Tobacco Be a "Dangerous Activity"?

Academic journal article Journal of Multidisciplinary Research

Tobacco-Smoke Litigation in Italy: Could the Marketing of Tobacco Be a "Dangerous Activity"?

Article excerpt

Abstract

This article analyzes recent developments of tobacco-smoke litigation in Italy. Italian courts are split on the issue of tobacco producers' liability, but recent precedents of lower courts and of the Italian Supreme Court seem to signal a shift toward court-imposed strict product liability for smoke damages. Upon review of the reasons given by the Italian courts, the article concludes that Italian law on this issue may become a conflicting deviation from trends of courts in Europe and worldwide. Court-imposed strict liability conflicts with the legality of production and sale of tobacco by statutory permission, thus the recent judicial developments leave open the question whether the issue of tobacco-smoke liability should be left to the courts or rather be the subject of an exercise in social policies, in a transnational comparative context.

Keywords

tobacco-smoke, lung cancer, consumer protection, cigarette consumption, product liability, government regulation, class actions

Introduction2

The issue of liability for damages from tobacco smoke, in particular from active smoking, has gained the attention of Italian Courts in the last three years. The first claim for damages brought by the relatives of a smoker who died of lung cancer dates back to 1997. Since that time, the issue of tobacco smoke has been the subject of growing debate by scholars and conflicting decisions by the Italian Courts. British American Tobacco Bat Italia S.p.a. v. Amministrazione Autonoma dei Monopoli di Stato (hereafter "Bat Italia"), a recent controversial decision of the Italian Supreme Court,3 held that the marketing of tobacco is a "dangerous activity" that creates strict liability under Article 2050 of the Italian Civil Code.

Article 2050 supplies a historic and comparative review of that decision and of the different theories argued, under Italian law, in support or negation of smoke damages. It is interspersed with analyses and opinions personal to the author of this article (the "author"). After an analysis of Bat Italia and of the comments that followed, this manuscript concludes that Italian law could either open new ways of tobacco-smoke litigation or become isolated in the International Community if Italian courts embrace strict liability as a cause of action for tobaccosmoke related claims.

A Background: Tobacco-Smoke Actions in Italy

The first case of tobacco-smoke litigation in Italy dates back to 1997 when the Tribunal of Rome denied a causal connection between smoking and the insurgence of cancer.4 The Rome court was unable to find scientific evidence of the biological mechanisms that cause cancer among many possible concurring causes. Since then, the path that led to Bat Italia was paved with controversial issues: types of causes of action; contributory negligence of smokers in the causation of damage; impact of advertising; and influence of warnings on self-determination of the smokers.5 Italian courts and scholars have been divided between two opposing trends. The first trend is in favor of admitting, albeit with many limitations and important distinctions, the responsibility of those who produce or sell tobacco.6 The other trend is oriented to exclude such liability.7

Those who deny responsibility for manufacturing or marketing tobacco argue that these activities are legitimate, not being affected by any specific prohibition,8 and cannot be considered the cause of any prejudice suffered by smokers. The argument goes that, at the state of medical science at the time the argument was made, it could not be said with absolute certainty that there is a chain of causation between consumption of cigarettes and the onset of specific disease. A number of contributing factors and external factors may intervene in the insurgence of the disease.9

An additional argument was that smokers, when consuming tobacco, are fully aware of the harmful effects produced by smoke and accept the risk with full knowledge that10 their behavior could be a concurring cause of damage. …

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