Issue #8 September 2020

It is – a disturbing title. It creates a queasy feeling in the gut, perhaps more than a bit of resistance in the mind, and a wariness to proceed. But I hope you will. Because it is important.

I have often written and have often said, “We have three long-lived legal, revenue-driven, government-regulated drug industries, and we have three international public health crises.” The two parts of that statement are irrefutable. But, even with the observed consistency across three drug industries, are the two parts of the statement connected in a causal manner? Has the tobacco industry engaged in deliberate conduct that caused people to get sick and die? Has the deliberately permissive regulation of a well-informed government contributed to the public health carnage?

What have public health authorities and the courts, after examining the available evidence, had to say about the conduct of the tobacco industry, its contribution to health problems, and the government’s role in regulating the industry? I will provide only a few high-profile examples in this post. There are many more.

In the 2006 United States District Court landmark case against Philip Morris USA, presiding Justice Kessler reviewed hundreds of depositions and thousands of exhibits from both public health experts and the tobacco industry. In the end, Kessler issued a powerful condemnation of the industry in her 1,742 page opinion.

“[This case] is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system.  Defendants have known many of these facts for at least 50 years or more.  Despite that knowledge, they have consistently, repeatedly and with enormous skill and sophistication, denied these facts to the public, the Government, and to the public health community.” 

Kessler continues:

“The evidence in this case clearly establishes that Defendants have not ceased engaging in unlawful activity…. For example, most Defendants continue to fraudulently deny the adverse health effects of second-hand smoke which they recognized internally; all Defendants continue to market “low tar” cigarettes to consumers seeking to reduce their health risks or quit; all Defendants continue to fraudulently deny that they manipulate the nicotine delivery of their cigarettes in order to create and sustain addiction; some Defendants continue to deny that they market to youth in publications with significant youth readership and with imagery that targets youth; and some Defendants continue to suppress and conceal information which might undermine their public or litigation position…. Their continuing conduct misleads consumers in order to maximize Defendants’ revenues by recruiting new smokers (the majority of whom are under the age of 18), preventing current smokers from quitting, and thereby sustaining the industry.”

Some of Kessler’s conclusions were echoed six years later in a public health review of the evidence on tobacco marketing and tobacco use by youth. Published as part of the 2012 US Surgeon General’s Report, the review was tellingly entitled “Cause and Effect: Tobacco Marketing Increases Youth Tobacco Use”.

A gem of a read for history buffs is Richard Kluger’s Pulitzer Prize winning “Ashes to Ashes” – a comprehensive historical account of the epic 100 year battle in the US involving the tobacco industry, public health authorities, government regulators and the courts. And it is a beautifully crafted piece of writing – thus the Pulitzer.

The vast engagement in criminality and turpitude by the industry, as described by Kessler and by Kluger, was not restricted to the United States. The Canadian story has been told in Rob Cunningham’s Smoke & Mirrors: The Canadian Tobacco War, and updated in Garfield Mahood’s “What Were They Smoking? The Smuggling Settlements with Big Tobacco” from which we discern a direct relationship between US and Canadian tobacco companies.

The crimes in Canada included fraud, conspiracy to commit fraud, possession of the proceeds of crime, deceit, fraudulent misrepresentation, spoliation [destruction of documents] and “massive conspiracy.” Presiding Justice Ormston remarked “The acts committed in furtherance of the conspiracy here represent the largest offense of its nature in Canadian history.”

And what of the responsibility of the Canadian government to protect Canadians from the predatory behaviour of the tobacco cartel? In the settlement of these cases, the government and the tobacco companies privately negotiated out-of-court settlements that recovered only a small portion of lost taxation revenues. Payment schedules of ten to fifteen years made it easy for the companies to pass the costs of the settlements on to their nicotine-dependant customers. Despite guilty pleas from the companies as part of these settlements, no individuals were convicted of any criminal wrong-doing – not even for “the largest offense of its nature in Canadian history.” One might ask how such a sweetheart deal could possibly motivate the companies to change their ways. And it would be a rhetorical question.

Provincial governments are currently launching additional legal claims against Canada’s tobacco companies for recovery of provincial health care costs arising from tobacco harms. It is interesting that the industry’s initial reaction to the lawsuits in Canada was to demonstrate the partnership relationship it had with government for much of its activities. This argument was not accepted by the courts as a basis for dismissing the cost-recovery suits. But that does not mean that a relationship did not exist. Given what we know, there is little doubt that government, at best, failed to effectively regulate the tobacco industry for decades. At worst, government demonstrated a failure of due diligence in its legally mandated regulatory role, thus becoming complicit as an enabler of the harm inflicted upon the public by the industry.

In 2019, a Quebec court of appeals unanimously upheld a judgement in the billions of dollars against Canada’s three tobacco companies for ongoing concealment of the harms its products caused to customers. Both this case and the cost recovery suits are currently prevented from proceeding to providing any compensation to plaintiffs after the companies successfully achieved creditor protection. Such protection is grounded in legislation that all too often results in out-of-court settlements. These settlements are typically sufficiently favourable to industry interests that there is little cause for the companies to reform their ways. So, they don’t. The illness, death, and profits, continue.

My next two posts will take a similar look at the alcohol and pharmaceutical industries, respectively. In the last of this series, I will discuss why paying attention to these industries, and the way government regulates them, have profound implications for our work with drug problems – in prevention and clinical care. Regardless of the nature of our role, our success will be compromised if government does not effectively contain the unbridled ambitions of these industries.

As your organizations continue to rely upon virtual or spatially safe arrangements for educational events, please consider including drug policy issues. I look forward to the opportunity to work with you on design or delivery.

September 2. 2020