Despite the government's anti-smoking bluster, the big tobacco companies live a charmed life in Britain, especially in the courts. You can't sue them and win. Investigation
In the basement of a warehouse on an industrial estate in Guildford, Surrey, is a treasure trove of documents on the internal workings of a tobacco company. Forty thousand files contain eight million pages of memos, research and reports from the previously secret records of British American Tobacco, producer of Lucky Strike, Kent, Dunhill and Pall Mall. In a 1998 court ruling in Minnesota, BAT was forced to make the documents available to the public, in Minnesota and at the depository in Guildford.
The documents are part of the US government's ongoing $280bn racketeering case against major tobacco companies, including Brown & Williamson (a former subsidiary of BAT), Philip Morris USA Inc, R J Reynolds and Lorillard. The case, under the Racketeer-Influenced and Corrupt Organisations Act (Rico), more commonly used against organised crime, alleges major cigarette-makers lied for years about the effects of smoking. In the United States, these documents are regarded as a telling indictment of the large companies, all of which have denied the charges. In the UK, however, they sit mostly unread, apart from visits by a few dedicated anti-tobacco researchers and journalists. There is no government prosecution of tobacco companies here, no parliamentary committee demanding these documents be handed over, and no tobacco executives called to account, as they have been by Congress in Washington.
Five decades after British studies first raised the link between smoking and cancer, smoking is still treated only as a health- policy issue. The law, and the government, have remained silent on the actions of tobacco companies and their executives, even though three of the largest companies in the world - BAT, Imperial Tobacco and Gallaher - are based in Britain.
This month, the government began trumpeting a major consultation exercise to get the public behind anti-smoking legislation banning smoking in public places. Behind the spin is another story, the story of a government and legal establishment unwilling and unable to take on the cigarette-makers. Now, attempts to bring the companies to account privately through the courts have been dealt a severe, possibly fatal, blow. It is a case history of the charmed life still led by tobacco companies in this country.
The judgment in the case of McTear v Imperial Tobacco was delivered at the Court of Session in Edinburgh on 31 May, World No Tobacco Day. But the irony appeared to have been lost on Lord Nimmo Smith in his 350,000-word judgment. It could not have been more damaging to the anti-smoking case if it had been written by Imperial's own public relations team.
Alfred McTear, who smoked 60 a day, died of lung cancer in 1993 at the age of 48. Just before his death he had launched a case against Imperial Tobacco. His widow Margaret carried on the battle, asking for £500,000 damages in the first case of its kind in Britain. The case dragged on for 12 years. After 15 months of deliberation, Lord Nimmo Smith issued his ruling. He said the case failed on every count, and he stunned health experts by saying he could not find it proved that cigarette smoking caused lung cancer.
McTear had known, like the rest of the general public, of the health risks associated with smoking, but had chosen to ignore them, the judge ruled. This was despite evidence that McTear had begun smoking in 1964, and was already addicted by the time warnings appeared on cigarette packets seven years later.
Lord Nimmo Smith said there was no evidence that Imperial Tobacco had ever accepted a connection between smoking and disease, and the fact that the firm had never sought to challenge the public health message that cigarette smoking caused lung cancer did not constitute an admission of guilt. Lord Nimmo Smith went even further, attacking the medical experts called on behalf of McTear. The witnesses had links with anti-smoking groups and this had damaged her chances of success, the judge ruled. "All the expert witnesses . . . were or had been connected in some way with Ash [the anti-smoking group] and were clearly committed to the anti-smoking cause; and no doubt for this reason were prepared to give evidence gratis. By contrast, all the expert witnesses for Imperial Tobacco charged fees for their services."
Shares in Imperial Tobacco rose after the ruling. Medical and legal professionals' criticism of the sweeping judgment was surprisingly muted in public, although many were more damning in private, when interviewed for this article.
Across the Atlantic, critics were less reticent. Richard Daynard, lawyer, professor and tobacco litigation expert from Northeastern University law school in Boston, was scathing. It was, he said, "an extraordinarily ignorant opinion". "The UK suffers from a conservative, narrow-minded judiciary who don't know or don't want to know the relevant medical and social facts," he said. The idea that if witnesses were not paid, their testimony was somehow suspect left him bemused. "The fact that selfless people were prepared to give evidence for free is evidence of bias?" he asked.
Daynard and others have led the way in the United States in providing assistance to those suing tobacco companies, which have suffered a series of courtroom defeats. The key to these defeats has been the discovery of damning internal company documents, of the kind sitting in the depository in Guildford, and the subsequent loss of political support.
The story goes that Bill Clinton spent one night at the White House reading through five articles about the so-called "smoking gun" documents in the American Medical Association magazine. The president was already furious with Big Tobacco for using its political muscle in Congress to block his plans to regulate tobacco as a drug through the Food and Drug Administration. When Clinton put down the papers, he summoned his health secretary Donna Shalala. Waving the papers at her, he said: "We've got to fuck these bastards."
Soon after, his attorney general Janet Reno launched the Rico case. It alleged that for 50 years, the cigarette industry had deliberately misled the public about the dangers of smoking. Starting in 1953, it said, the companies conspired to launch a public relations campaign to counter the scientific evidence that cigarettes were harmful, while their own research confirmed the scientific findings of disease, death and addiction. The object was to maximise the number of smokers and profits.
Back in Scotland, the might of the US justice department was not available to Margaret McTear. There was no political support for the case. Margaret - whose small home in Beith, Ayshire, is her only asset and who makes £150 per week from a part-time clerical job at a nursing home - was refused legal aid seven times. When her solicitor Cameron Fyfe, whose firm worked for free for 12 years on a win-only basis, wrote to the six Scottish health boards asking for their support, they all declined to help. Without public funding, her defence team did not have the resources to go through the whole of the vast archive in Guildford although they believed it contained documents that could have helped McTear, despite Imperial Tobacco not being involved in the Rico case. "We wanted to fly in experts from America on cancer and epidemiology but we didn't have the money," Fyfe said. Instead they turned to local experts who gave their help for free - and got attacked by the judge for their pains.
Legal experts estimate that Imperial Tobacco spent at least £10m on its defence. In 1995 it demanded £2m from Margaret McTear as security for its defence expenses, a demand finally thrown out only after more expensive hearings. Two years ago, it got an order preventing her from selling her property while the case was before the courts. After the verdict, Imperial told Scottish journalists it would not rule out forcing her to sell her £60,000 home to pay part of its costs. (The firm this year reported pre-tax profits of just under £500m.)
Imperial Tobacco said in a press statement it hoped the outcome would discourage other speculative claims: "We regret that we have had to defend ourselves against what we always believed to be a speculative claim. We have never lost or settled any tobacco litigation and will continue to defend ourselves robustly against any further speculative claims."
The ruling meant the end of plans for a group of smokers with lung cancer or their surviving relatives to sue for damages after McTear. A quarter of the 160 tobacco clients of Fyfe's firm, Ross Harper, died as the case proceeded through the Scottish judicial system. Like a previous English attempt at a class-action suit against tobacco, brought against Gallaher and Imperial Tobacco five years ago, the attempt to call a cigarette-maker to account ended in tears. There are no plans to appeal. Neither Margaret McTear nor her lawyers can afford any more litigation. Without legal aid, Fyfe said, the only people who could sue tobacco companies in the future would be Lottery winners.
There were no crumbs of comfort in Nimmo Smith's ruling for future litigants. "The judge said McTear should have known that smoking was dangerous," Fyfe said. "But if he should have known, then Imperial Tobacco should have known."
It is the revelations about what tobacco companies knew about the dangers of their product, from their own files, that is behind some of the headline-making jury decisions in the United States. "Cigarette-makers don't question the link between smoking and lung cancer any more in these cases," says Richard Daynard. The companies have been successful in making the cases trials of the smoker rather than of the tobacco companies, a tactic Imperial Tobacco followed in Scotland. (McTear had a troubled past and he had been to prison.) In 1994, however, seven tobacco CEOs appeared before the US Congress and told a disbelieving nation that they did not believe nicotine was addictive. The political impetus that their action created, the discovery of the secret documents, and the support from Clinton, changed the thinking. "Juries used to say the smoker should have tried harder to quit," Daynard said. "Now they get the documents and their reaction to the companies is, 'These are really bad guys.'"
Betty Bullock, a Californian, had smoked for even longer than Alfred McTear and had brushed off warnings from doctors to stop smoking with the reply: "I am an adult, and this is my business." Yet Bullock, who has since died, sued when she got lung cancer and a jury awarded $28bn in punitive damages against Philip Morris. Both the verdict and the damages are under appeal, but there have been other reverses for the once-invincible Big Tobacco.
In Illinois, companies have been sued under consumer protection laws for falsely marketing light cigarettes as less dangerous. A judge awarded one million smokers who had spent on average $7,000 each on the products a refund - $7bn - and he added $3.5bn in damages for good measure. There are many lawyers' hours to be clocked up before the appeals to these cases run their course, but at least in the US the behaviour of these companies and their executives is being subjected to rigorous public examination by politicians and in the courts. Why is there not the political will, and a public outcry, in this country?
"We are too cynical," says one British lawyer. "People just shrug their shoulders and say, 'Well, that's how these companies would behave' and nothing gets done about corporate misbehaviour." Cameron Fyfe looked at taking the McTear case before a jury but was advised not to. Letters from the public to newspapers showed a strong degree of scepticism about his client's case.
And while the tobacco companies' political influence may have waned slightly since the days when MPs enjoyed their hospitality at sporting events and Tony Blair exempted Formula One racing from the ban on tobacco advertising, it remains strong.
Deborah Arnott, director of Ash, points out that when some of the secret documents, presented to the Commons health select committee, showed evidence of collusion with smuggling by BAT which had cost the Treasury huge sums in lost excise duty, the committee called for a public investigation into BAT and said criminal proceedings should be considered. BAT denied the charges. The case was handed over to the Department of Trade and Industry, and three years later, in what she calls "a scandalous whitewash", a press release announced that investigations had "failed to uncover evidence to support a criminal prosecution". The Commons report has never been published.
What is striking about the internal documents held at Guildford, according to Jeff Collin, a lecturer in global heath policy at the London School of Hygiene and Tropical Medicine, is the bluntness of much of the language. The caution exhibited by executives of other Big Tobacco companies, choosing their words carefully even in internal memos, was apparently not shared by those working for BAT. "They put things on paper that others didn't," he said. Collin believes that BAT bosses felt protected by the British attitude towards litigation and corporate accountability, and by their own well-developed political connections. In a separate case, an Australian court heard that their bluntness even extended to putting down on paper discussions about destroying potentially incriminating documents. Some of these were used in the litigation against BAT, which said it had not broken any laws. Yet, outside the efforts of Collin and others, who are creating a website to provide better public access to the papers, where are the politicians' demands for an investigation? Five years ago, the parliamentary health committee did look at whether the documents could be brought before the House. Apparently, the legal advice was they could not have them all: they had to ask for specific sets - difficult when they did not know what the papers contained.
The vastness of the archive has not stopped lawyers from the US justice department poring over them and bringing the Rico case. Although we do not have a Rico statute in this country, we have a plethora of laws on fraud and corruption. Why aren't they used?
Stephen Davis is a former newspaper editor and television producer who is writing his first book. He can be contacted at theeditor@xtra.co.nz.
Post this article to
We want to encourage people to comment on our content and to exchange views with other readers and hope this will be done on a courteous basis. However, if you encounter posts which are offensive please let us know by emailing comments@newstatesman.co.uk and we will take swift action where necessary.
