chapter  5
38 Pages

Regulatory Responses to Tobacco and Legal Challenges

Attempts to counter tobacco through product liability litigation may provide compensation to a few, generate work (and possibly lots of) money for lawyers, reveal information on industry misconduct, ensure tobacco control has high visibility, punish rogue manufacturers and be an irritant to the tobacco industry generally. But under existing laws it will not provide a killer blow to eradicate tobacco use. This is most obviously the case in Europe, but fundamentally the same conclusion can be reached for the US. ‘Clean’ tobacco properly sold without any misrepresentations as to safety is unlikely to be considered a defective or unsatisfactory/unmerchantable product. Any case brought on the basis of conduct, be it fraud, deception or negligence, will only have transitory effects on those participants found liable for misconduct. Thus attention should focus on how tobacco can be regulated to reduce the number of smokers and improve the health of those who continue to smoke. Europe started on this route, but the US is also increasingly regulating tobacco as instanced by many of the terms of the MSA and the new powers granted the FDA under the FSPTCA 2009. Indeed tobacco regulation has even been considered a ‘human right’1 and a matter of special concern for the protection of female human rights.2