A Second Wind In Tobacco Fight

On June 24, Hong Kong's Legislative Council, in one of its last acts before the British colony returned to China, passed a tobacco-control bill that in some of its advertising and marketing strictures was tougher than the proposed settlement with tobacco companies in the United States.

"During the debate, some legislators said, 'If the tobacco companies can agree to such restrictions in the US, then why not in Hong Kong?' says Judith Mackay, who lives in Hong Kong and has been battling the tobacco companies in nicotine-addicted Asia for decades.

It's a question that is starting to spread around the globe. Ever since the tobacco companies agreed to get rid of the advertising camels and cowboys, as well as fork over $368 billion over the next 25 years, other countries have begun to ask, "Can it happen here too?"

Some countries are filing legislation to allow class-action law suits. By August, Israel plans to hit tobacco giants with a lawsuit asking for $7.8 billion to pay for smoking-related medical costs and an antismoking campaign.

In late June, health care officials from six countries, along with the World Health Organization (WHO), met in Halifax, Nova Scotia, to start a process aimed at a world treaty to control tobacco-company behavior.

"If the tobacco industry thinks it will be putting all the litigation behind it with this settlement in the US, it has another think coming," says Dick Daynard, head of the Tobacco Liability Project, associated with Northeastern University Law School in Boston.

The litigation and treaty roads are likely to be rocky, however, in large part because the tobacco industry remains a powerful force. In many Asian countries, tobacco companies are government-owned and produce billions in revenue. Globally, industry executives have spent decades making themselves a part of local cultures by funding events such as auto races and sports contests. They are a potent political force in parliaments and legislatures, especially in countries that grow tobacco.

Expanding sales overseas

The battle is shifting overseas at a time when the US tobacco industry is looking at world markets as its best opportunity for growth. The hottest areas for cigarette consumption are the Middle East, Asia, and Eastern Europe. The world's largest tobacco company, Philip Morris, has increased overseas sales 80 percent over the last five years.

"In most countries other than the US, the tobacco companies are trying to expand their markets, not maintain them at a low level," says Neil Collishaw, a scientist with Tobacco or Health, part of the WHO based in Geneva.

Antitobacco forces abroad also have to contend with different attitudes about smoking. Israel, for example, has smoke-free zones, but they are widely ignored.

"It's not so much a difference in the legal systems as much as a different level of dependence on tobacco and a different attitude," says David Leebron, dean of the law school at Columbia University in New York.

But even attitudes may be starting to change. Last week, in Israel, Rabbi Ovadia Yosef, a spiritual leader who wields strong influence on religious Jews of Middle East descent, declared that smokers are "sinners" against Jewish law, while cigarette companies are "the biggest sinners of all and will surely go to hell."

In Germany, signs in the Bonn subway now make it clear that smoking is "verboten." Lufthansa, the German airline, is smoke-free on its North American and northern European flights. And one of the bestsellers over the past five years is "Endlich Nichtraucher!," the German edition of an English book, "Carr's Easy Way to Stop Smoking." The book has sold 250,000 copies so far.

Official attitudes are changing too. In Britain, the new Labour government has pledged to outlaw tobacco advertising, including sponsorship of sports events, and is urging the 15-member European Union to do the same. On July 14, the Department of Health is inviting experts from Britain and abroad to a summit on smoking and plans to produce a white paper for legislation to ban tobacco advertising.

Lawsuits - which were the lever to get the proposed American settlement, may be on the way in some countries. Australia and New Zealand are studying the possibility of suing tobacco companies to recover money spent to treat smoking-related illnesses.

By August, the Israeli health ministry expects to file suit against local and foreign tobacco companies, collecting equal damages from both.

Some of the evidence may come from the US, says Amos Hausner, a lawyer for the Israel Forum for the Prevention of Smoking. Earlier this year, Minnesota Attorney General Hubert Humphrey III, in Israel on a trade mission, briefed the Israelis on the fine points of filing a lawsuit.

US sparks bill in Canada

In Canada, British Columbia Premier Glen Clark has promised legislation this fall to allow the government to file suit directly against tobacco companies or to advertise for people to participate in a government-backed class-action suit. "The actions in the US are almost entirely responsible for this being on the agenda in British Columbia," says Garfield Mahood of the Non-Smokers' Rights Association.

Officials in Alberta and the four Atlantic provinces have shown interest in British Columbia's approach.

"I expect other provinces to follow B.C.'s leadership and open up a whole new front against the tobacco industry," says Rob Cunningham, author of "Smoke and Mirrors: The Canadian Tobacco War."

They will get a battle from the tobacco industry. Robert Parker, president of the Canadian Tobacco Manufacturers' Council, representing Canada's three major tobacco companies, denounces Premier Clark's move as a "politically motivated tax grab." Like the US companies, he denies the industry targets children.

A preliminary hearing was held in London July 1 on whether British tobacco companies were negligent because they didn't reduce tar levels in cigarettes. The case, the first of its kind in Britain, has been brought by 47 lung-cancer patients against Imperial Tobacco PLC and Gallaher Group PLC.

The documents and publicity surrounding the American agreement could influence the case, says Julian Fulbrook, an expert in personal-injuries litigation at the London School of Economics.

"The industry has always argued they were marketing a legal substance and that individuals knew they were assuming a risk," Mr. Fulbrook says. "But you can't assume a risk if you were lulled into a false sense of security by tobacco executives saying nicotine is not addictive. But whether such claims will be successful in Europe will depend on the country, the judge, and whether or not there is a jury trial."

For those countries willing to try a lawsuit, there is plenty of American advice available. Mr. Daynard, the antitobacco activist who will receive remuneration from a US settlement, recently traveled to Brussels to advise European lawyers.

"We're telling them that countries that follow common law [modeled on the English legal system] can certainly file such suits," says John Banzhaf, executive director of Action on Smoking and Health in Washington.

Some countries limit suits

There won't be a lot of US-style lawsuits, however, says Robert Wiseman, who follows international tobacco issues for Essential Information, a Washington public interest group. "A lot of countries don't have a tort system that allows for punitive damages or allows for liberal discovery [pretrial] rules," he says.

The discovery process was critical to getting the tobacco industry to the bargaining table in the US. In its lawsuit, the state of Minnesota accumulated 30 million tobacco company documents. "Some of the documents were deeply embarrassing to the cigarette companies," says Mr. Leebron, the law school dean.

Even when tobacco groups sue and win in Europe, they rarely get much money. A Paris-based antismoking lobby, the French National Committee Against Tobacco Use, mounts some 200 court actions a year to force the government to enforce existing antismoking legislation.

"In the 1970s, we lost all our cases; later, we were awarded a symbolic franc in damages, then 100 francs. Last year, we won 600,000 francs [$100,000] in damages. There has been a progression," says spokesman Pascal Menihan-Cheinin.

In Europe, in fact, the main effort is geared toward legislation instead of litigation. In Germany antismoking groups are hoping the prospective agreement in the US will help them get a nonsmokers' protection law through the Bundestag. The legislation would ban smoking from workplaces, government buildings, and public transportation, including stations and airports.

The bill is unusual because it has multipartisan sponsorship. According to antitobacco leaders, party leaders have decided to allow legislators to vote their conscience, rather than along party lines, on the issue. Ernst-Gnther Krause, spokesman for the Non- Smoking Initiative of Germany, says party leaders felt there wasn't much political gain in opposing a "nonsmoker protection law."

US settlement lends a boost

If the German legislation passes, it will be part of the indirect effect of the American effort. "Other countries will look at what [the US has] done and feel entitled to at least this much," says John Bloom, a lawyer and manager of international issues at the Campaign for Tobacco-Free Kids, a Washington-based organization that was part of the negotiations.

Around the globe, antitobacco organizations say the biggest impact of the proposed US settlement is psychological. "This case really legitimizes our battle," says Mr. Menihan-Cheinin in France. Adds Mckay, director of the Asian Consultancy on Tobacco Control in Hong Kong, "Many of our colleagues felt daunted and intimidated. Now, they feel they have some empowerment."

The WHO effort toward an international treaty will be an opportunity to see how far that feeling will carry. Among the aims of the WHO is protection of children from tobacco products, elimination of all direct and indirect advertising, ending trade missions that support tobacco exports, smoke-free public areas, and clear public-health warnings.

Mr. Collishaw, the WHO scientist, says a core group of nations aims to present a draft treaty by the year 2000. The US effort, he says, gives him hope. "I think one way or the other, we will use every positive development as a step along the way toward effective tobacco control," he says.

* Mark Clayton in Toronto, Gail Russell Chaddock in Paris, Ruth Walker in Bonn, and Ilene R. Prusher in Jerusalem contributed to this report.

SMOKING AROUND THE WORLD:

SOME FAST FACTS

How much tobacco is consumed?

World consumption of tobacco was nearly 7 million tons in 1994 and increasing. About 605 billion cigarettes are smoked annually (including 75 billion bidis, crushed tobacco rolled in a dried tobacco leaf, smoked on the Indian subcontinent).

The total weight of tobacco consumed globally in all smoking and smokeless tobacco products is about 1.4 billion pounds per year.

What forms of tobacco are smoked?

A wide variety of smokeless tobacco products are used. The chewing of Betel quid, usually a mixture of tobacco, betel nuts, lime, and catechu wrapped in a betel leaf, is particularly widespread in Bangladesh, India, Pakistan, and Sri Lanka.

Are people smoking more or less?

Annual worldwide adult per capita consumption of cigarettes has changed little in 30 years. It currently stands at 1,660 cigarettes per adult.

What is happening in some of the largest markets?

In China, smoking increased by 260 percent from the early 1970s to the early 1990s. Chinese consume 1,900 cigarettes per adult per year. Seventy percent of men smoke. A national monopoly controls production; foreign companies have only 4 percent of the market.

In India, only 25 percent of the 200 million smokers puff on cigarettes. The rest prefer cigars, cheroots, and bidis.

In Japan, 35 percent of adults smoke. A former state-run company, Japan Tobacco, controls 80 percent of the market. Cigarette ads are permitted for television, billboards, and sports events.

In Germany, Europe's wealthiest nation, smokers spend $19.3 billion on cigarettes each year. Taxes account for three quarters of the average package price of five marks ($3).

How big is the tobacco business worldwide?

Five large multinational tobacco companies had combined operating profits from their operations of $9.3 billion in 1993.

SOURCES: The World Health Organization's project on Smoking or Health, Associated Press, and Reuters