The smoking epidemic: the role of government

Canada's Federal Government wants off the hook as a third party defendant in the law suit brought by the province of British Columbia against Canada's tobacco companies. In February, 2010, the feds asked the Supreme Court of Canada to overturn a ruling by the BC Court of Appeals that could force it to share financial responsibility for damages allegedly caused by tobacco use.

The feds claim third party liability “would place an indeterminate strain on available public resources and would effectively create an insurance scheme for tobacco manufacturers at the expense of Canadian taxpayers.”

But, reviewing the Statement of Claim presented by Imperial Tobacco Canada (ITCAN) in the BC case, it is easy to understand why the BC Appeals Court ruled to include the feds as third party defendants. At the heart of the matter is the fact that government officials (including Health Canada and various Ministers of Health) were aware of the growing concern over the link between smoking and lung cancer for decades.

According to Imperial's Statement of Claim, it was the government's duty to take whatever action was required to protect the health and well being of Canadian consumers. “The federal government was, at all material times, responsible for protecting the health of Canadians, including consumers , and was responsible for providing them with accurate and reliable health information.”

That's a justifiable claim. The Canadian government is the only party with the authority to make tobacco illegal; to outlaw the growing, manufacture and sale of tobacco and tobacco products. And, if tobacco was/is responsible for all the damage they claim, including tens of thousands of deaths annually, then that is the very action they should have taken.

Imperial points out that, up until 1960, the causal association between smoking and lung cancer was still in dispute. “In 1958, The national Cancer Institute of Canada stated that “while it has not been established that cigarette smoking is a cause of lung cancer”, studies show smokers have a greater risk. In 1960, Dr. Layton, the Principal Medical Officer, Research Development Health Canada, expressed the view that “most experts” had reservations about the causal link between smoking and lung cancer.”

But, the Canadian government can't claim that they remained ignorant of evidence suggesting cigarettes are associated with an ever expanding number of health problems.

In June, 1963, Judy LaMarsh, then Minister of National Health and Welfare, made public a conclusion that “there is scientific evidence that smoking is a contributory cause of lung cancer and that it may also be associated with chronic bronchitis and coronary heart disease.”

By 1964, the government began developing plans to control tobacco use. An intergovernmental committee was established “to review current approaches to education about smoking, to review components of an effective program to inform and/or remind smokers and non-smokers of the risks of cigarette smoking, to dissuade young people from acquiring the habit of smoking, and to identify the role of different agencies in implementing the program. The committee's agenda included such matters as cigarette advertising and promotion packages, warnings, labelling of cigarette packages and smoking on television.”

So, the government was aware of the possible consequences of smoking as far back as the early sixties. And, in subsequent years, they initiated a number of controls ostensibly intended to curtail tobacco use. Included are interventions such as graphic warning labels on cigarette packs, eliminating cigarette advertising in the mass media, smoking bans, usurious levels of tobacco taxation and media campaigns to encourage smoking cessation.

These interventions, and many more, were justified by governments at all levels by pointing out the potential health consequences associated with smoking. And, the tobacco companies complied with the advice and direction of the government. Or, as claimed by Imperial, “The Federal Government, at times material to the allegations in the Statement of Claim, has undertaken an active role in the support and direction of cigarette manufacturers in Canada and has set the standard of care that cigarette manufacturers, acting reasonably, met at material times.”

And if, in the considered opinion of the government, those interventions were sufficient to address concerns about the safety of smoking, how then can only the tobacco companies be held accountable for the consequences? And, if they weren't . . . then government failed in their duty to Canadian consumers. If smoking is as dangerous as claimed by the government, how could the government allow their continued sale and distribution to the consumer?

As noted in Imperial's statement of Claim: “At all material times, Officials were fully aware, as particularized herein, of the properties of cigarettes and the health risks associated with their use. Officials authorized, licensed and promoted the development, manufacture and distribution of cigarettes, and the federal government derived substantial tax revenue from the sale of cigarettes and took no steps to prohibit the manufacture and distribution of cigarettes.”

The Federal government has confiscated billions of dollars in revenue from Canada's tobacco consumers. Their provincial counterparts have also profited. Over the decades, they have made more money from the sale and distribution of tobacco products than the tobacco companies.

The case Imperial brought before the BC Court, of course, tells only one side of the story. But, it was sufficient to convince the BC Court of Appeals that the feds should be held accountable as third party defendants.

We'll wait and see what the Supreme Court has to say.

Note: The original lawsuit was filed by the provincial government of British Columbia in 1996. It is not scheduled to begin until next year.