STATEMENT OF INTERNATIONAL TOBACCO CONTROL ADVOCATES ON U.S. TOBACCO LITIGATION SETTLEMENT DISCUSSIONS

June 17, 1997

It is ironic that the U.S. tobacco litigation settlement discussions have been labeled talks aimed at achieving "a global settlement," since the talks have reportedly excluded consideration of the public health consequences of U.S. tobacco exports and the U.S. tobacco companies' overseas operations. It is unacceptable to discuss a comprehensive settlement of the U.S. tobacco litigation which does not include measures to control the use of U.S. tobacco products outside of the United States.

Only four percent of the world's smokers are in the United States. As horrible and monumental as the death and disease caused in the United States by tobacco is, the toll outside of the United States is much greater. Approximately 85 percent of the annual 3 million tobacco-related deaths occur outside of the United States. And while smoking and tobacco use rates are relatively flat or declining in the United States, they are rising elsewhere, especially in the developing countries. By the 2020s, the World Health Organization predicts 10 million people will die annually from tobacco related disease, 70 percent in the developing world.

Already, the major U.S. tobacco firms are selling more cigarettes abroad than domestically. Philip Morris and R.J. Reynolds sell more than two thirds of their cigarettes overseas, and the proportion is growing.

The U.S. tobacco companies are looking to markets in the Third World and Eastern Europe for future growth. And in many countries they are using slick and deceptive advertising and marketing techniques that target children, especially girls, in ways that would never be tolerated in the United States.

A settlement of the U.S. tobacco lawsuits that does not incorporate international tobacco control measures will fail to address the major tobacco-related public health problems. Even worse, a U.S. tobacco settlement in the absence of global controls may actually exacerbate public health threats in the developing world. If sales fall in the United States, or the U.S. companies are forced to pay a substantial settlement award, the tobacco multinationals can be expected to intensify their invasion of the Third World and Eastern Europe, pursuing marketing and corporate acquisition strategies with even greater determination. The drying up of information potentially associated with a settlement, and the inevitable loss of political momentum which will accompany a settlement, will also damage tobacco control efforts outside of the United States.

To avoid doing public health harm, a settlement must set a worldwide floor on U.S. tobacco company practices, and the practices of their subsidiaries and those firms over which they exercise de facto control, including trademark licensees, without limiting the ability of countries to require companies to exceed the global minimum standard. Specifically, a settlement should be structured to:

1. Apply regulatory controls adopted as part of a settlement to all cigarettes manufactured in the United States, including those destined for export.

2. Require the tobacco companies to agree to a code of conduct embodying the regulatory provisions contained in a U.S. settlement in areas such as marketing to children, advertising and marketing, labeling and performance requirements for reduction of new children smokers. The industry must immediately agree to end practices such as cigarette giveaways, television advertising, sports, music and other similar sponsorships and clothing giveaways. This code should be developed in consultation with the World Health Organization, the International Union Against Cancer and other international tobacco control advocates.

3. Require the tobacco companies not to oppose efforts in other countries to adopt regulatory measures (for example, workplace restrictions on smoking and ingredient regulation) which are in line with World Health Organization recommendations.

4. Assure that any immunities or limits on liability granted to the tobacco companies not apply to the companies' exports or activities or investments abroad. There should be no immunities or limits on liability or annual caps covering potential litigation in either U.S. or non-U.S. courts relating to the tobacco companies' exports or activities and investments abroad. There should be no immunity or limits on liability applied to enforcement in U.S. courts of foreign judgments against the tobacco companies.

5. Ensure full public disclosure of the tobacco company documents now obtained by tobacco litigants and those sought by litigants but currently held by the tobacco companies under claim of attorney-client privilege.

6. Require full public disclosure by the tobacco companies in every country of all political donations and political lobbying efforts.

7. Entitle non-American victims to the same levels of compensation in U.S. courts as American victims, and ensure they maintain comparable legal remedies.

8. Require the U.S. tobacco companies to offer to compensate foreign government health agencies, proportional to their market share (taking into account smuggled cigarettes) and reflecting the formula used to determine their payment to the states for Medicaid reimbursement.

9. Require the tobacco companies to contribute $10 billion annually to the World Health Organization or other agreed upon international agencies for tobacco-control programs. This contribution would not preclude non-American demands for compensation for injuries caused by tobacco.

10. Contain an explicit stipulation by the tobacco companies that they will not claim in any context that settlement terms concerning their overseas sales or operations preclude other governments in any way from adopting laws and regulations more restrictive than those adopted in the United States.

11. Contain an explicit stipulation by the tobacco companies that they will not seek assistance from the U.S. Trade Representative, the U.S. Department of Commerce, U.S. embassies or other U.S. government agencies to resist or repeal other countries' tobacco control regulations and laws.

12. Penalize companies shown to participate in or support international tobacco smuggling.

13. Ensure that international tobacco control advocates be represented on a independent panel to determine the public health consequences of any final settlement.

Signers:

Australia
Professor Simon Chapman, University of Sydney and Action on Smoking and Health
Stephen Woodward, Tobacco Control Consultant

Cameroon
Dr. Wali Muna, Tobacco Control Commission for Africa

Canada
Gar Mahood, Non-Smokers' Rights Association

France
Dr. Albert Hirsch, St. Louis Hospital, France

Hong Kong
Dr. Judith Mackay, Asian Consultancy on Tobacco Control
Dr. A.J. Hedley, Department of Community Medicine, University of Hong Kong

India
Dr. Prakash C. Gupta, Tata Institute of Fundamental Research

Japan
Nobuko Nakano, Women's Action on Smoking

Kenya
Pamphil H.M. Kweyuh, Executive Coordinator, African Tobacco Media
Program, The Tobacco Control Commission for Africa

Malaysia
Dzulkifli Abdul-Razak, National Poison Center, University Sains Malaysia

Mongolia
Dr. P. Nymadawa, Subassembly of Medical Sciences, Mongolian Academy of Sciences

New Zealand
Murray Laugesen, Health New Zealand

The Philippines
Dr. Daniel Tan, Tobacco-Free Philippines Foundation

Poland
Dr. Witold Zatonski, Department of Cancer Control & Epidemiology, Marie Sklodowska Curie Memorial Cancer Centre & Institute of Oncology

South Africa
Dr. Yussuf Saloojee, National Council Against Smoking
Katherine Everett, Cancer Association of South Africa
Dr. Derek Yach, Essential Health Research Group

Switzerland
Nigel Gray, President, International Union Against Cancer

Taiwan
Dr. David Yen, The John Tung Foundation

Thailand
Dr. Hatai Chitanondh, Thailand Health Promotion Institute, The National Health Foundation
Stephen L. Hamann, Tobacco Control Policy Research Network

Turkey
Dr. Elif Dagli, Department of Pediatric Pulmonology, Marmara University

United Kingdom
David Simpson, International Agency on Tobacco and Health