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Report of the Tobacco Policy Research Study Group on Tobacco Litigation
  1. Richard A Daynard,
  2. Erkki Aurejarvi,
  3. Donald Barrett,
  4. Ronald M Davis,
  5. Joseph DiFranza,
  6. Marc Z Edell,
  7. Donald Garner,
  8. Marvin Goldberg,
  9. Alden D Holford,
  10. Judy Jackson,
  11. S Stephen Rosenfeld,
  12. John Slade,
  13. Edward L Sweda Jr,
  14. Larry White
  1. Northeastern University School of Law, Boston, Massachusetts
  2. Helsinki University, Helsinki, Finland
  3. Lexington, Missouri
  4. Michigan Department of Public Health, Lansing, Michigan
  5. University of Massachusetts Medical School, Worcester, Massachusetts
  6. Short Hills, New Jersey
  7. University of Southern Illinois Law School, Carbondale, Illinois
  8. Pennsylvania State University, State College, Pennsylvania
  9. Houston, Texas
  10. Boston, Massachusetts
  11. Boston, Massachusetts
  12. Robert Wood Johnson Medical School, New Brunswick, New Jersey
  13. Boston, Massachusetts
  14. New York, New York
  1. Correspondence to Professor Richard Daynard, Northeastern University Law School, 400 Huntington Ave, Boston, Massachusetts 02115, USA.

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Litigation is useful for both enforcing existing rights, and for showing the implications of legal principles derived from other types of cases to tobacco products. Thus:

  • “Unfair” consumer practices are generally illegal, but only recently has this principle been applied to the factual context of cigarette sales to minors,1 or to the sales of “Joe Camel ” promotional items without health warnings.2

  • Manufacturers of products that cause more harm than benefits, or which are sold to consumers who have not been effectively warned of the range and magnitude of the harm they cause, are generally required to compensate consumers when harm occurs. These principles have not until recently been applied to cigarettes – arguably the deadliest consumer product ever marketed.

  • Employers are required to provide “a safe workplace”3 with various types of compensation provided to injured employees: the rights of afflicted non-smokers to invoke these remedies have increasingly been recognised in the past few years.4

  • Obtaining money by fraudulent means is universally recognised as criminal: whether the American tobacco industry’s longstanding pretence that it does not know whether smoking causes disease, and that it is actively engaged in good faith research to determine that question, constitutes a fraudulent scheme for encouraging smoking and increasing profits, is only now being investigated.5,6

Because civil litigation does not require the active participation of either the executive or legislative branches of government, it may produce successes in tobacco control even where these other branches will not act. Thus although police may rarely enforce laws against selling cigarettes to minors, the expense and adverse publicity facing retailers sued for violating consumer protection laws as a result of such sales may cause these retailers to correct their practices.7 Whereas the influence of the tobacco industry may obstruct efforts …

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