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Wanda De Kanter
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ES13 - Global Political, Legal, and Financial Strategies For Tobacco Control (ID 16)
- Event: WCLC 2019
- Type: Educational Session
- Track: Prevention and Tobacco Control
- Presentations: 1
- Now Available
- Moderators:Desmond Carney, Esteve Fernandez
- Coordinates: 9/08/2019, 15:15 - 16:45, Vienna (2016)
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ES13.02 - Pursuing Criminal Charges Against Big Tobacco (Now Available) (ID 3225)
15:15 - 16:45 | Presenting Author(s): Wanda De Kanter
- Abstract
- Presentation
Abstract
Abstract 1
Court of appeal rejects charges made against tobacco industry-
The Court of Appeal in The Hague has declined to instruct the Netherlands Public Prosecution Service to bring criminal charges against cigarette manufacturers. The court concluded that it is up to the government, not the judiciary, to tackle the rigging of cigarettes. In other words, it’s the government’s move.
On December 6th, 2018 the Court of Appeal in The Hague delivered its verdict in the proceedings brought by criminal lawyer Bénédicte Ficq on behalf of various individual complainants and a large number of legal entities who previously lodged complaints against cigarette manufacturers. Last February the Public Prosecution Service (OM) decided not to instigate legal proceedings, prompting the complainants to instigate an Article 12 procedure in an effort to force the OM to prosecute.
In its verdict, the court writes that “the products of cigarette manufacturers are made and tested in accordance with stringent Dutch and European legislation and regulations. As long as the cigarette manufacturers respect these European and national rules, the member states must respect these rules and cannot prohibit the sale of cigarettes. Radical measures against cigarette manufacturers can only be taken by the European regulator.”
In her reaction, lawyer Bénédicte Ficq draw attention to the significance of the court’s comment, in its detailed motivation, that cigarette manufacturers deliberately market a deadly and harmful product with the sole objective of making money.
The court writes: “The fact that smoking is harmful to your health, is a serious health risk, can cause serious illness and even death, and is moreover highly addictive, can in the opinion of the court be considered general knowledge and is not disputed by the defendants. The defendants supply cigarettes that they know are or can be addictive and harmful to the health of active and passive smokers. The court assumes that the defendants act with the aim of making a profit
Here the lawyers note the similarities with verdicts reached against cocaine and heroin dealers. Ficq: “The court could have avoided making these remarks, but has instead chosen to make clear that there is a social evil that the court is powerless to address. In other words, the ball is in the government’s court.”Legislator must intervene
In its conclusion the court expresses it very clearly once again: “Complainants have chosen to address a social problem concerning public health within a criminal framework. However, the court agrees with the Public Prosecution Service that criminal law offers no solution. Radical measures such as banning the production and sale of tobacco, which is produced in accordance with the legal directives, can only be taken by the legislator. The ultimate goal of the complainants, to ban cigarettes cannot be achieved through criminal law. It will instead have to involve an appeal to the European legislator.”
Conclusion: . “The court recognizes the scale of the social problem and the fact that cigarettes are extremely addictive and deadly, and should actually be banned, but it’s up to the government to take action. That strengthens us in our demand that the Netherlands Food and Consumer Product Safety Authority and the government must take measures to tackle the phenomenon of ‘rigged cigarettes’
We feel as if we have ended up in a Kafkaesque situation in which it is patently obvious that cigarettes with holes in their filters release more toxic substances than legally allowed. But the legally prescribed smoking machines measure different levels, so cigarettes in their present form are permitted. Those responsible for passing legislation must now change this situation, especially since we’ve know that ‘rigged cigarettes’ cause more lung cancer. Time for government action!”
ABSTRACT 2
Tobacco Industry: first we fix the law, then we abide by itA little-known issue is the way that the tobacco industry has succeeded, over the years, in bending the implementation of anti-smoking laws to its own will. After all, in violation of all international laws, it exerts a strong influence on how the State determines emission values for cigarette smoke. As a result of that interference, the margins for enforcing the law are far too wide.
According to Dutch law, every three years cigarette manufacturers must show the government how much tar, nicotine and carbon monoxide (TNCO) their cigarettes contain. These levels are controlled by the National Institute for Public Health and the Environment (RIVM). The RIVM then sends the results to the Dutch Food and Consumer Product Safety Authority (NVWA). If the legally set limits are exceeded, the NVWA must act. It must enforce the law.
Those legal norms are unequivocally determined in the Law on Tobacco and Smoking Products. A cigarette may emit a maximum of 10 mg tar, 1 mg nicotine and 10 mg carbon monoxide. A smoker may not inhale more poison than that. The law also determines how levels are measured and the margins within which the legal norms must be met.However, the margins determined by law are very wide: 20% for tar and nicotine and 25% for carbon monoxide. This means that a cigarette with 12 mg tar (instead of 10), 1.2 mg nicotine (instead of 1) and 12.5 mg carbon monoxide (instead of 10) is still permissible. The NVWA will only intervene above those levels. The literature tells us that maximum margins of 10% are more than enough to conceal variations in measured levels.
In developing and determining the measurements, the government has — following the example of the European lawmaker — used the services of two private organizations: the Netherlands Normalization Institute (NEN) and the International Organization for Standardization (ISO). These organizations consist entirely of representatives from the cigarette industry. The chairperson himself comes from Philip Morris.
If you examine the explanation that accompanies the legal article, it turns out that the legal emission margins are statistically baseless. “The conclusions within the report are based on practical experience of verifying these measurements in a number of different marketplaces underpinned by a theoretical consideration of the sources of statistical variation.” (NEN-ISO 8243.2013, IDT)
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