Next year marks a landmark of sorts. When 2018 arrives, it will be two decades since B.C. launched a lawsuit against the tobacco industry. Yet, unbelievably, the case is still going on.
In 1998, the province sued cigarette manufacturers on several grounds, including allegations that companies:
• Marketed “light” cigarettes as safer when they knew they were not.
• Targeted children in their advertising and marketing.
• Conspired to suppress research on the risks of smoking.
• Conspired to invalidate public warnings on the risks of smoking.
The industry fought back, claiming the legislation that authorized the suit was unconstitutional. In 2000, the B.C. Supreme Court agreed.
Later that year, new legislation was drafted. In 2003, the B.C. Supreme Court struck that down.
In 2004, B.C.’s Appeal Court reversed the lower-court ruling. The industry appealed.
In 2005, the Supreme Court of Canada sided with the province. That decision was followed by a blizzard of follow-on suits with new procedural issues.
In 2012, B.C. abandoned its go-it-alone approach and formed a consortium with five other provinces to pursue a class action.
Since then, the industry has launched additional counter-suits, each one painstakingly heard and reheard. In 2015, tobacco giant Philip Morris sued for access to the B.C. Health Ministry’s confidential patient files. Although the appeal court in Nova Scotia (one of the class-action lawsuit members) rejected a similar request, the B.C. Supreme Court granted it. Last month, that decision was appealed to the Supreme Court of Canada.
So far as anyone can tell, these are all preliminary skirmishes (the province is refusing comment). That suggests the main issues have not yet been addressed. Even if the province wins, the legal bills will be enormous.
And will the province win? Half a century has passed since the health hazards associated with cigarettes were first made clear. In 1964, the U.S. Surgeon General found clear evidence that tobacco smoking is a cause of lung cancer and laryngeal cancer in men, and a probable cause of lung cancer in women. A direct link to chronic bronchitis was also shown.
Since that time, numerous public-health campaigns have been mounted to warn smokers about the dangers. There are graphic warnings on every tobacco package. Can the government really hope to prove that consumers remain unaware of the health risks involved?
However, even if no one is fooled by industry propaganda, conceivably it’s enough to show that the manufacturers tried.
And here the province might have an edge. Several lawsuits in the U.S. resulted in awards totalling more than $100 billion against tobacco firms.
In part, this was due to the work of whistle-blower Jeffrey Wigand, who worked as vice-president of research for cigarette manufacturer Brown and Williamson.
In 1996, Wigand stated publicly his company intentionally laced its tobacco with additives such as ammonia to increase the addictive power of nicotine. The pattern of behaviour he described probably added strength to American suits against the industry.
Whether those allegations will have force in Canada is another matter. But the real question is how it could take the better part of two decades to try a lawsuit, with the end still nowhere in sight.
Naturally, it is in the interests of manufacturers to play for time. But while the lawsuit was begun by an NDP administration, the B.C. Liberals, often a friend of big business, inherited it. Was there foot-dragging on both sides?
In any event, if the province is right, while this trial meandered along, a whole new generation of smokers was recruited by shameless industry tactics. That is unconscionable.
