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As Tobacco Control Battle Shifts to Courts
Wednesday, 09 May 2007

ThisDay Newspapers
Godwin Haruna

The addictive substance, tobacco, impoverishes a number of people across all borders and this negative impact, has drawn the ire of tobacco control activists and the Lagos State government. Health statistics obtained from the World Health Organisation (WHO) says tobacco is the second major cause of death in the world. It is currently responsible for the death of one in ten adults worldwide (about 5 million deaths each year). Experts contend that if current smoking patterns continue, it will cause some 10 million deaths each year by 2025. Half the people that smoke today -that is about 650 million people- will eventually be killed by tobacco. It is also the fourth most common risk factor for disease worldwide.

It is against this background that the Lagos State government and the Environmental Rights Action / Friends of the Earth, Nigeria (ERA/FoEN) ( a civil society group) last week slammed a N2.7 trillion compensation suit against British-American Tobacco (BAT) Nigeria Limited and four others for health hazards resulting from cigarette smokers in the state.
The suit, which has the blessing of Prof. Yemi Osinbajo (SAN), state Attorney-General and Commissioner for Justice, also named British-American Tobacco Plc, British-American Tobacco (Investment) Limited, Philip Morris International and The Tobacco Institute as defendants.

Novel as the titanic legal brickbats may look, analysts say the case will throw up several interesting developments. Internationally, especially in the United States, anti-tobacco activists have successfully prosecuted erring tobacco firms for similar infractions. It is believed that many activists in Nigeria and other tiers of government are warming up to take similar actions against the tobacco industry.
Ever since the World Health Assembly, the governing body of the World Health Organization, unanimously adopted resolution WHA 56.1, which adopted the Framework Convention on Tobacco Control (FCTC) in May 2003, the field has been left wide open for anti-tobacco activists to intensify their campaign. Many countries of the world have taken steps to voice support for the convention, which is intended to address the global problem of tobacco use, and covers issues such as youth access to tobacco, tobacco advertising and marketing, price of tobacco products, environmental tobacco smoke, smuggling, surveillance and research.

This landmark case with the potential of far-reaching impact on public health, is one of such moves being undertaken in the wake of the FCTC. The claimants in the instant case are seeking special, general, punitive and anticipatory damages in the sum of $21,617,605, 885.17 (N2,702,200,735,647.17) from the defendants.
The Claimants' claim is based on the following allegations:

The Defendants have recently admitted that tobacco smoking has severe health implications including but not limited to cancer, cardiovascular and pulmonary complications;
In spite of the obvious knowledge of the adverse effect of their product, the defendants have surreptitiously and fraudulently targeted young and underaged persons in their advertising and marketing. Through the use of market surveys and sophisticated advertising, the defendants have utilised such means as music, cinema and fashion, to attract and addict young and underaged persons to smoking. There have been substantiated instances of free distribution to children at their events;

The mandatory health warnings inscribed on the pack is ineffective as the Defendants promote a retail strategy of sale by the stick (the individual sticks that most consumers purchase have no such warning). This retail strategy is also a significant causal factor of youth smoking as it encourages easy access to the products.
On account of legal action, liability, and stricter control measures in the developed world such as the United States (where big tobacco companies and their lobby arms were mandated to pay compensatory damages of $260 billion to state governments for public health costs), the defendants have turned their focus to the developing world with Nigeria being a top priority. While there is a significant decline in the smoking rates in the developed world with diminishing health concerns, in the developing world such as Nigeria, smoking increases at least by 20 per cent annually. In Lagos, two (2) persons die daily in the government-run health facilities, from tobacco related diseases.

Other grounds of the suit instituted at a Lagos High Court are that beginning from about the middle of the last century, the defendants have conspired internationally and locally to suppress the fact of the addictive and narcotic qualities of nicotine (which equates that of heroin), and also its manipulation to achieve a higher level of dependability on the product by its user. They have also conspired to conceal the adverse health effects of smoking to the consuming public, government and regulators. Their conspiracy also extends to the issue of second hand smoke or passive smoke, otherwise referred to as Environmental Tobacco Smoke (ETS). Finally, despite possessing the wherewithal to manufacture safer cigarettes, the defendants have conspired to blatantly suppress any advances in this area.
In perpetrating their conspiracy to commit the several actionable wrongs alleged in the suit, the defendants acted in concert with one another, and also employed an astonishing array of lobby groups, bogus research organisations, and public relations companies.

It is useful to note that a substantial part of the evidence to be relied upon by the Claimants emanate from the Defendants' internal documents. The Claimants shall also rely on expert witnesses from medicine, the tobacco industry and civil society.

In his written witness statement on oath which was attached to the suit, Mr. Akinbode Oluwafemi, programme manager, ERA/FoEN, averred that: In response to loss  of market dominance and income in developed countries, tobacco companies are channeling their massive resources and promotional machinery to lure impressionable youths in the developing countries of Africa to long-term tobacco use.
"The defendants have actively endorsed and participated in musical concerts with recognised pop and other celebrated musicians to create an atmosphere that furthers their false deception. The first defendant actively marketed its Benson and Hedges brand by putting on musical concerts dubbed with names like 'Wild and Wicked' to attract Nigerian youths. At each BAT Nigeria musical concert, young people are provided with a supply of free Benson and Hedges cigarettes in order to get them addicted to cigarette smoking at a young age so as to make them life-long consumers".
According to Oluwafemi, on several occasions, he had accompanied relations, friends and members of ERA and the national coordination of the Nigeria Tobacco Control Alliance (NTCA) to both public and private hospitals for treatment of tobacco-related aliments.

The claimants' causes of action are based on negligence, public nuisance, restitution, strict liability, conspiracy to commit actionable wrongs, among others. The overall effect of the defendants' course of conduct is that the state government is called upon to expend its resources in treating tobacco-related ailments caused by the use of defendants' products. In the year 2006 alone, there were 9527 reported cases of tobacco-related diseases in Lagos State hospitals. The State Government spends at least N316,000 per month on each of this cases.
The reliefs sought by the claimants against the defendants, jointly and severally include the following: An order of mandatory injunction compelling the defendants, their successors-in-title, privies and or agents to cease the marketing, promotion, distribution and sale of tobacco-related products to minors or under aged persons; an order of mandatory injunction restraining the defendants from representing or portraying to minors or persons under the age of eighteen (18), any alluring and/ or misleading image regarding tobacco related products whether by direct depictions, pictorials, advertorials, images, words, messages, sponsorships, branding and/or through overt or covert and/or subliminal means; an order of mandatory injunction restraining the defendants from marketing, distributing, selling, or putting into the stream of commerce either by themselves or through their distributors, agents, resellers, trade partners, marketers, and/or any other person, any tobacco related products of whatever make or brand within a one thousand (1000) metre radius of any schools, hospitals, cinemas, playhouses or locations, children's shopping areas, childcare facilities or such other public places in Lagos State that are predominantly a location for minors and young persons under eighteen (18) years old to "hang out", play, assemble, congregate for any purpose whatsoever including but not limited to educational, recreational, social, religious, sports or any other purposes.

Others are an order of mandatory injunction compelling the defendants to fund a tobacco control programme to be administered and controlled by an independent third party to be appointed by the Lagos State Government, targeted at minors and young persons under eighteen (18) years old whose objectives include: non-access to tobacco products within the 1,000 (one thousand) metre radius of such facilities, locations or area as designated by this Court in the event of an order being granted as specified in subparagraph c herein before; a formulation and implementation of a procedure for the verification of age at all points of sale of tobacco related products; the implementation of an effective awareness campaign on smoking and its health implications, including extensive disclosures of components of tobacco-related products, potential associated diseases and other relevant information; an order of mandatory injunction restraining the defendants from marketing, distributing, selling, or putting into the stream of commerce either by themselves or through their distributors, agents, resellers, trade partners and/or marketers, any tobacco-related products of whatever make or brand within Lagos State; an order of mandatory injunction compelling the defendants to fund a corrective public awareness campaign relating to the issue of smoking and health, to be administered and controlled by an independent third party to be appointed by the Lagos State Government.

They are also seeking a declaration of the court that the tobacco related products as manufactured, marketed, promoted, distributed and sold by the defendants are addictive; an order of mandatory injunction compelling the defendants to have printed on each stick of tobacco related product manufactured by them, the following disclosures: the tar/ nicotine quotient; the relevant age bar requirement; the addictiveness and narcotic qualities of nicotine; and the relevant mandatory health warning prescribed by the Federal Ministry of Health.

A further declaration of the court that the tobacco-related products as manufactured, marketed, promoted, distributed and sold by the defendants are hazardous and injurious to the public health; a declaration of the court that the defendants' conduct as specified herein in this complaint/ statement of claim, in relation to its misrepresentation and concealment of material facts and other such acts, are unlawful; an order of perpetual injunction restraining the defendants and their officers, agents, servants and employees, and those in active concert or participation with them, from continuing or engaging in such conduct or other conduct having similar purpose or effect with the subject matter of this complaint/ statement of claim.

At its first hearing last Friday, Prof. Osinbajo, SAN, led seven other lawyers; a combination of the State's legal representatives and lawyers with the Lagos State Ministry of Justice including Lawal Pedro, the Director of Civil Litigation in the Ministry of Justice, Lagos State. The court heard and granted the attorney general's application for leave to serve defendants in the United Kingdom, the United States and Switzerland with the processes in the suit. With this ruling, Justice Ipaye has now set in motion the process for the defendants to answer for the substantial allegations against them.
The learned Judge in her remarks underscored the seriousness and importance of the case and therefore set the matter for the next hearing on May 18, at which time it is expected that the defendants should be prepared to defend initial or preliminary applications against them.
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