Law and tobacco control in Sri Lanka

Protect youth from ads propagating smoking habit:

Tobacco though considered to be more deadlier than alcohol has had a worse press than alcohol. The Tobacco and Alcohol Act of 2006 was introduced knowing the harmful affects of tobacco to human health. First part of this article was published yesterday

In this respect, law almost certainly came to embody the moral intuitions of the majority among the powerful. The faculty of moral intuition in individuals tends to make them behave more or less automatically in ways that promote the long-term survival and welfare of the group to which they belong. It is based on a sort of an unconscious judgment about what is right behaviour and what is wrong behaviour in a given context.

Law and tobacco control

It is now time to try and apply these generalizations to the problem of tobacco control. In the US even in 1900, only a minority of people smoked and cigarettes were a stigmatized product. By the 1950s, however, by clever, crafty, seductive advertising through newspapers, magazines and billboards and very glamorously in films, the cigarette became a symbol of attractiveness, beauty and power.

As recently as during the period between 1999 and 2003, one study estimated that in 776 films released during the period contained about 5,500 tobacco incidents. Using relevant box office data it determined the number of children six to 17 years of age who had bought tickets to see them. Multiplying the thousands of smoking incidents in hundreds of films by the number of tickets sold to see them, they calculated that children and adolescents had been exposed to about 8.2 billion smoking depictions.

Although these are ‘guesstimates’ they provide an insight into the very large scale of exposure of the population to tobacco depictions in films. In the event many men and women happily smoked cigarettes despite the fact that the causal relationship between cigarette smoking and lung cancer had become evident.

They did so mainly because they had become addicted to the nicotine in tobacco and partly because the harms of tobacco smoking are not immediately manifest. For its part, the tobacco industry used its enormous profits to propagate the smoking habit by attractive advertisement, subtle promotion and calculated sponsorship of social, cultural and sports activities. The consequence was the tobacco epidemic, which killed 100 million people in the 20th Century.

Democracy

Concurrently the 20th Century also saw the emergence of democracy based on universal suffrage as the most desirable form of political organization. In practice, democracy initiated the transfer of power and therewith wealth from the former possessors of power and wealth to those who used their voting power judiciously. What Lord Macaulay (1800 - 1859) fearfully predicted had begun to become true: “Give votes to all and you must expect the instinct of self-interest - the same self-interest which Adam Smith counted on to work in the economic sphere of laissez-faire - to lead to state interference with the inequality of incomes and prosperity”.

The educated democratic forces in the world who gradually perceived the harms done by the evil weed - Nicotiana tabacum - have been struggling to use law to deal with the tobacco menace. Given the individualistic orientation of Western law, though, the tobacco industry has hitherto been able to press law very effectively to serve its interests at the expense of the general public. The struggle of the democratic forces is necessarily a protracted one.

Tobacco propaganda

By the mid 1950s, the evidence was compelling that there was a close connection between cigarette smoking and lung cancer. For example, a study involving 30,000 autopsies on patients with confirmed smoking histories concluded that, “the findings are fully consistent with the theory that cigarette smoking is an important factor in the causation of bronchogenic carcinoma”. Yet the tobacco industry did its damnedest to misrepresent the emerging scientific knowledge. In an attempt to rubbish the evidence linking smoking with cancer, Max Culter, a surgeon and a favourite of the tobacco industry, went so far as to utter sophistries such as, “simply because one finds bullfrogs after a rain does not mean it rained bullfrogs”.

The mass media were inveigled into the service of the tobacco industry. Edward R Murrow, who presided over a widely watched CBS television news documentary program, was a chain smoker who consumed 60 to 70 cigarettes a day. He professed to believe that there was no connection between smoking and lung cancer. He regularly smoked throughout his live broadcast.

Unsurprisingly and with something akin to tragic irony, at age 57 he succumbed to lung cancer. He thereby unwittingly furnished ‘proof’ to many otherwise skeptical people that smoking in fact causes lung cancer. The tobacco industry came to be dubbed a ‘rogue industry’. Driven by greed to produce a dangerous and deadly product, it consistently used fraudulent methods to deny harms caused by tobacco. What is worse, all the while it vigorously promoted the product especially among children, its future pool of ‘replacement smokers’.

US vs tobacco industry

In 1999, USA Government began litigation against the tobacco companies to recover federal spending on tobacco related diseases. The Department of Justice (DOJ) sought to recover Medicare funds from the industry. In addition, the DOJ cited civil Racketeering Influenced and Corrupt Organizations Act (RICO) violations in order to seek remedies to restrain unlawful activities on the part of the tobacco companies. Judge Gladys Kessler heard the case in the Federal District Court. She ruled that the government could not recover Medicare costs but permitted the RICO action to proceed.

The RICO Act had been originally designed to combat organized crime. It had also been successfully used to force legal businesses that had engaged in racketeering and fraud to ‘disgorge’ illegally gained profits. The case against the tobacco companies, United States v. Philip Morris sought to recover an estimated USD 280 billion.

According to government estimates, this was the amount of industry profit from illegal promotion and sales to minors over four decades.

At the end of a long trial Judge Kessler delivered her judgment, which ran into 1683 pages. She forthrightly declared that the tobacco industry had violated the RICO Act. She said that, “over the course of 50 years, defendants lied misrepresented and deceived the American public including smokers and the young people they avidly sought as ‘replacement smokers’ about the devastating health effects of smoking and environmental tobacco smoke”. She ruled that the industry suppressed research, destroyed documents, manipulated the use of nicotine so as to increase and perpetuate addiction... and abused the legal system in order to achieve their goal - to make money with little if any regard for individual illness or suffering, soaring healthcare costs, or the integrity of the legal system.

Despite her judicial excoriation of the tobacco companies, however, she said that the Appeals Court had no power to apply remedies to address the massive deceptions and frauds committed by the tobacco companies. Thus, the law in the US cannot punish what Professor Allan M Brandt has called the ‘crime of the century’ - an epidemic which killed 100 million people in the 20th Century.

In fact, it does not have the power even to restrain future illegal behaviour of the tobacco industry. In his book called The Tobacco Century, Prof Brandt has documented how the tobacco industry in US used special interest lobbying and largesse - in plain English, corruption and bribery - to evade legal regulation of its deadly business. He concludes his book with the pessimistic remark that the United States v. Philip Morris proved once again the tobacco industry’s power to survive and thrive despite the havoc it continues to wreak.

That may be so in the United States of America. When it comes to health policy, the US is by no means the model for Sri Lanka to emulate. In this field, Sri Lanka can well serve as a model for the US to emulate.

NATA Act

Although tobacco is the more pervasive and deadlier mischief-maker of the two, alcohol has had a worse press than tobacco in Sri Lanka. The opprobrium derives from the fact that Buddhism, the major religion in Sri Lanka requires its faithful to undertake the rule of training that enjoins abstinence from alcohol. Consequently while alcohol is taboo to Buddhists, tobacco is not.

Even so, because the relevant authorities are fully aware of the extensive harm that tobacco does to human health, attempts to control alcohol use have been linked with attempts to control tobacco use as well. So it has come about that the legislation to control tobacco use in Sri Lanka is also the legislation to control alcohol use. Thus we have the Tobacco and Alcohol Act No. 27 of 2006.

Reportedly, this is the only instance in the current world where one and the same Act seeks to control both tobacco and alcohol. So the Act is unique in the strictest sense of the word. Increasingly the World Health Organization is moving in the direction of working out an international treaty on alcohol similar to the FCTC. In this field, Sri Lanka can show the world the way to go. Concluded

The writer is National Authority on Tobacco and Alcohol Chairman