By Neil Francey
Barrister at Law
WENTWORTH CHAMBERS
180 PHILLIP STREET
SYDNEY  NSW  2000
AUSTRALIA

TELEPHONE: + 61 (0) 2 9232 4466
FACSIMILE:   + 61 (0) 2 9223 4204
email: neilfrancey@wentworthchambers.com.au

INTRODUCTION

Tobacco kills one in two smokers who use cigarettes as intended by the manufacturer. Worldwide there are about 1.2 billion smokers out of a total population of around 6 billion. One third of all people aged fifteen years and over smoke and this proportion is increasing in Asia, Eastern Europe and the former Soviet States. Of these, 50% will die prematurely from tobacco related illness, half in middle age with an average loss of life expectancy of 20 - 25 years (8 years over all ages). This means that over half a billion people (in the order of 600 million) or about 10% of the existing population will die from smoking - 27% from lung cancer, 24% from heart disease, 23% from chronic obstructive lung disease, emphysema or bronchitis and the remaining 26% from other diseases including other circulatory disease (18%) and other cancers (8%).

In 1996 the World Health Organisation (WHO) estimated^[1] that 3 million people worldwide died every year from smoking-related disease, 2 million in developed countries (DCs) and 1 million in developing countries (LDCs). Consumption trends indicate that smoking prevalence is reducing in developed countries (down 1.5% per annum in the United States) whilst increasing in lesser developed countries (up 1.7% per annum on average). Based on then current trends, WHO estimated the death toll from smoking would rise to 10 million people per year by the year 2025, 3 million per year in developed countries and 7 million per year in lesser developed countries. Currently, the annual death toll has increased to about 4 million, or about one person every eight seconds. In Australia, smoking kills 18,000 per year and costs the nation around $12 billion annually. There are approximately 3.5 million smokers in Australia half of whom will die prematurely from smoking-related disease. This is about 1.8 million people or almost 10% of the Australian population.

No other consumer product in the history of the world has come even close to inflicting this degree of harm on the world community. If anything else posed a threat to life of this magnitude, whether human induced or naturally occurring - be it world war, genocide, ethnic cleansing, natural disaster or disease - it would demand immediate international action.  The responses to war crimes (both current and dating back to World War II), germ warfare, nuclear weapons, HIV or even climate change are but a few examples. Due to the latency in the development of disease from smoking, the world community has been slow to respond to the tobacco epidemic which has been a phenomenon of the twentieth century, hence the WHO estimates for the year 2025.

All this raises the question: “How did this happen and what can be done about it?” In this paper, the historical background to the smoking pandemic of the 20^th century is recorded together with an examination of the response to this phenomenon both in public health policy terms and, more especially, by way of litigation in Australia (and elsewhere) against the background of the tobacco industry’s conduct over the last 50 years. In the light of this experience, suggestions are made as to the potential use of litigation and public inquiries as public health tools for tobacco control. Specifically, recommendations are made for setting up a WHO Commission of Inquiry to to prepare a comprehensive report on the evidence implicating the tobacco industry for use as a resource by member countries in litigation and public inquiries and as a policy justification for stringent tobacco control legislation of the kind contemplated by the proposed Framework Convention on Tobacco Control (FCTC),[2] as well as to support proceedings in the Human Rights Commission and/or prosecutions and orders for the payment of reparations in the International Criminal Court on the basis that the death toll from tobacco is a crime against humanity.

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