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)
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. …