Tobacco Industry Accountability and Liability as a COVID-19 Response

Webinar Summary

The devastating impact of COVID-19 has underscored the fundamental importance of health and tobacco control. Smoking has been associated with a more rapid progression of COVID-19. Numerous studies have also shown that smoking and vaping are linked to more severe outcomes of the disease.

With governments looking for solutions to strengthen health systems and public health policies, the crisis presents a golden opportunity to urge stronger implementation of the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC). To undermine public health efforts, in the times of the pandemic, the tobacco industry has shamelessly paraded donation drives, promoted misleading information, and aggressively marketed its products online and offline.  It also lobbied heavily and initiated legal suits to challenge temporary sales bans.

WHO FCTC: Protect Public Health and Make Tobacco Industry Pay

The WHO FCTC calls on governments to adopt stronger tobacco control laws, create robust legal frameworks, and take action to make the tobacco industry pay compensation for the harms it has caused.

With Article 5.3 and Article 19 of the WHO FCTC, Parties have potent tools at their disposal, not only to safeguard public health policies from the tobacco industry’s commercial and vested interests, but also to make the tobacco industry pay for harms it has caused. Together, implementation of these articles fulfills Goal 3: Good Health and Well Being and Goal 16: Peace, Justice, and Strong Institutions of the Sustainable Development Goals.

 In addition to practical resources to support implementation made available by the Convention Secretariat, the WHO FCTC Secretariat’s Knowledge Hub for Art 5.3 and its partners, there are country experiences and practices in the health, human rights, and governance sector that can provide direction:

1. Ruling against the Tobacco Industry: In South Africa, to protect public health during COVID-19, the Ministry of Health imposed a cigarette ban during the lockdown and along with the President, stood firm despite protests and lobbying by the tobacco industry. The Pretoria High Court also rejected the tobacco industry’s case when it sued the state for the ban.
2. Suing the Tobacco Industry: In Brazil, to make tobacco companies pay for healthcare costs incurred for decades, the Brazilian’s government prosecutor filed a class action suit for recovery of damages against British American Tobacco and Philip Morris International whose deadly products dominate the cigarette market.
3. Using Foreign Courts to sue the tobacco industry (Long-Arm Jurisdiction): Beyond local courts, cases may also be filed in foreign courts. For instance, the US Foreign Corrupt Practices Act applies to any company listed on the US Stock that has attempted or made payments, offers, or promises to influence government decisions, induce illegal activity, secure “improper” advantage, and/or induce foreign officials to use influence inappropriately.  A similar law exists in the UK.
4. Using administrative compensation mechanisms and charging the tobacco industry: Used in about 19 countries, the Vaccine Injury Compensation mechanism could serve as a model for an administrative process to compensate tobacco victims where court processes are prohibitive. This could be financed by surcharges imposed on the tobacco industry.
5. Learning from other Liability Regimes: A human rights treaty is being negotiated on establishing international liability regimes to hold corporations to account. As in the environmental field, effective sanctions, reparations for victims, access to judicial and nontraditional grievance mechanisms including guarantees for future claims have emerged as core elements.

Strong political will is needed to translate these tools into action

Treaty tools and a variety of experiences and models demonstrate the existence of powerful mechanisms available to hold the tobacco industry to account and to demand compensation for harms done. Now that Covid-19 has underscored the harms tobacco industry has caused, governments can seize the moment to make the tobacco industry accountable and liable.

Learn more in this STOP policy brief prepared by GGTC, Tobacco Industry Accountability and Liability in the Time of COVID-19. Find the statement of Dr. Adriana Blanco, Head of the WHO FCTC Secretariat, on tobacco control during the COVID-19 pandemic here. Materials used for this webinar are available upon request here.