The Canadian Lawsuit

Odd, is it not, how coincidences occur? No sooner have we given attention in detail to one lawsuit than another one crops up. This case is taking place in Canada. Unlike the McTear case, those of us who are interested are fully aware of the previous, important, definitive case which is McTear v Imperial Tobacco (2005).

Frank J brought this to my attention in a comment. He said: “Along with the rest of us, keep a similar eye on the Blais and Letourneau case about to start in Canada. Any analysis would be much appreciated.” I knew absolutely nothing about it!

A little history—–

Let us make a little assumption. Let us assume that ASH ET AL are involved in this case in much the same way as they were involved in McTear. The McTear case began life in 1998 – so did the Blais and Letourneau cases. The two Canadian cases, however, got bogged down so that the McTear case came up first. As we have seen, ASH WAS THRASHED in the McTear case, and one might therefore wonder how these new cases have been allowed to proceed in view of that result. BUT, between McTear being ‘permitted’  and the actual ‘Judgement’, Judges in Canada agreed that Blais and Letourneau could proceed. SO…..’jacta est alea’ – ‘the die is cast’ – no one can withdraw without losing face. So…. all that ASH ET AL can do is make the best of it.

Originally, the Blais and Letourneau cases were separate, but the Court has decided to try the cases together as a ‘class action’.  There is another case, knight, which was already a ‘class action’. The reports tell me that knight is still in abeyance. (The ‘knight’ case is about ‘failure to warn of known risks’)

The info that I have gleaned so far has come only from on-line Canadian newspaper reports. I shall give two URLs. Click them and look for yourselves. In both reports, you will see MASSIVE ANTI-TOBACCO BIAS:

http://www.canada.com/health/Tobacco+titans+finally+trial+Monday/6274212/story.html

http://www.canada.com/health/Tobacco+lawsuit+glance/6276885/story.html

Everything about this total mess is weird. It really is. The Canadian law system is very much tied in with British Law, as you would expect, historically. In fact, when it comes to the Canadian Federal State, Her Majesty The Queen stands for the Canadian State. In their ‘preliminaries’, the Tobacco Companies argued that the Canadian State had demanded lower tar content of cigarettes and had used ‘Agriculture Canada’ (a Canadian Government body) to find a tobacco strain which was ‘low tar’ (otherwise known as ‘light’). Tobacco Companies had been obliged to use that strain (or strains) of tobacco. The Canadian Government had said that the ‘light’ (tar reduced) cigs were ‘safer’, and, therefore, the Government were just as ‘guilty’ as tobacco companies, should the description of ‘safer’ be incorrect. The Supreme Court of Canada threw that argument out on the grounds that the decisions and statements of the Gov are ‘public policy’, and ‘public policy’ is exempt from litigation unless ‘irrational’. (The whole thing is more complicated than that, but that is the essence)

Frankly, I think that the Tobacco Companies brought these actions against the Canadian Gov merely to bring legal attention to the fact that the Canadian Gov were complicit in describing the ‘light’ cigs as ‘safer’. It does not matter that they lost the ‘joint responsibility for costs’ case – that was not what they really wanted.

I am going to see if I can find a daily transcript of the case. I doubt that it will be available, but it may be. The second link above describes the evidence of the first witness for ASH ET AL. He used to be a chief spokesperson for Imp Tobacco until he retired in 2002. He is testifying against Imp Tobacco.  He is currently being quizzed by the ASH ET AL counsel. His evidence so far is very odd. Sometimes he says that Imp Tobacco was correct in what it said about danger at the time, and then contradicts himself somewhat by saying that he personally told pregnant employees to reduce smoking while pregnant. 

Nothing that I have read so far indicates that any of the newspaper reporters or commentators know anything at all about the McTear case. 

Frightening, is it not? Greater ignorance means greater profits for lawyers, does it not? 

Enough for tonight.

6 Responses to “The Canadian Lawsuit”

  1. harleyrider1978 Says:

    It would seem the Mctear case would be a presidence setting case in Canada Since the law is so closely related to brittish law. Just a thought

  2. Frank J Says:

    http://tobaccoreporter.com/home.php?id=498&art=5662

    That will give a press release of the the stance of Imp. Tob. in this case.

  3. Frank J Says:

    Whilst any Court can set it’s own precedent in differing circumstances, all Anglo countries, being very similar in Legal dealings and practice, use as evidence any precedent set in any other Anglo country.

    • junican Says:

      Ref what Frank J and Harley say, in McTear, Judge Nimmo called upon precedents from the House of Lords, the Scottish Supreme Court, and a couple of decisions from European countries and the USA.

      In a similar way to the the legal maxim ‘volenti non fit injuria’, the way the system of ‘precedent’ works is that some sort of general principle is established, possibly years and years ago. Future decision in the same general area then modify the original decision. For example, there is a general principle that adults are intelligent, reasonable and responsible, but this general principle was modified by the idea that there are people who have ‘diminished responsibility’ such as the mentally ill.

      I expect that ‘the plaintiffs’ will try to introduce new arguments to get round McTear.

  4. Rose Says:

    Behind it’s newly aquired password but previously open to public view.

    ASH

    “Prior to 1970, the use of additives in tobacco products was prohibited without special permission from the Commissioners of Customs and Excise, under Section 176 of the Customs and Excise Act, 1952. This permission was given only within very strict limits and mainly in respect of flavourings in tobacco products other than cigarettes. The prohibition extended to the importation of tobacco products containing additives as well as a ban on the production of cigarettes with additives for export.”

    “The rise of additives in tobacco products is intimately linked with the strategy to reduce tar yields. The amount of tar and nicotine in smoke is measured by a standard smoking machine in which the cigarette is smoked with a fixed puff volume and frequency with tar and nicotine residues collected on a filter and weighed. Governments have insisted on reducing tar levels as measured by this approach, hoping that this would reduce tar exposure to smokers — and therefore lead to reduced harm.

    “The tobacco industry argues that one of the key purposes of additives is to make lower tar cigarettes more palatable. The ISCSH accepts this and notes:
    “Some smokers find existing low and low to middle tar brands unsatisfying, but if those who smoked middle or middle to high tar cigarettes could switch to low tar brands whose acceptability was improved by additives, the dangers of smoking could be reduced.
    The Committee recognises the potential value of using flavouring additives in this way.”

    Low tar cigarettes and additives
    “One of the prime justifications for the addition of artificial flavourings is to replace the lost flavour of the diluted smoke. This has in theory been done to facilitate the switch to low-tar. However, any hoped-for health benefits from low-tar cigarettes have largely failed to materialise. At the same time an extremely lax regulatory regime for additives has emerged. Although smokers of lower tar cigarettes may be consuming as much tar and nicotine in total, they will be consuming greater volumes of diluted smoke to do it. This is perhaps analogous to drinking watered down wine – it is possible to become intoxicated, but drinkers will have to consume more and the flavour will be weaker.”

    Regulation. The existing regulatory framework is based on the assumption that additives are useful to facilitate consumer acceptance of lower tar yield cigarettes. By facilitating the switch to lower tar products, it was hoped that tobacco additives would lead to ‘health gains’. No data is available to show that additives are in fact used only or predominantly in lower yielding brands. However, there is now good evidence that questions the value of low tar cigarettes. Low tar cigarettes have generally used perforated filters to dilute the smoke with air. Smokers learn to block the holes, often subconsciously, thus adjusting the dilution of nicotine in the smoke. The smoker may also compensate by smoking more intensely. With the primary rationale for a relaxed regime discredited, it is necessary to adopt a new approach.”
    http://old.ash.org.uk/html/regulation/html/additives.html

    The Lessons from History: Scientists Ideas About How to Make Safer Cigarettes Can Severely Backfire

    “In 1974, the National Cancer Advisory Board – an advisory committee of the National Cancer Institute – made a detailed set of recommendations regarding the regulation of cigarettes. The recommendations called for federal regulation of the tar and nicotine deliveries of cigarettes, which would be administered by a federal agency. The agency would require that cigarette companies gradually reduce the tar and nicotine levels of cigarettes from the 1973 averages of 19.2 mg tar and 1.3 mg nicotine”
    http://tobaccoanalysis.blogspot.com/2009/05/lessons-from-history-scientists-ideas.html
    Recommended reading.

    “Dr. Wynder felt that regulatory action should cover the entire spectrum of smoking dependent diseases and that if the 1974 average tar and nicotine contents of cigarettes (18.4 milligrams,and 1.27 milligrams respectively) are acceptable to the majority of smokers, there is no reason they should not be acceptable to all smokers.

    The labeling of cigarettes with a precise tar and nicotine content may not be specifically clear to the consumer, and a qualitative label of “light” may be allocated for all cigarettes below 12 milligrams of tar and 0.8 milligrams of nicotine, hoping that the consumer would find a more immediate signal for his choice.

    Dr. Wynder also reminded the group that in the long run it would be necessary to look for quantitative as well as qualitative changes, with the kind of research that is now being conducted by the Tobacco Working Group and the Smoking and Health Programme in the National Cancer Institute.
    Dr. Wynder also voiced strong concern that legislative attempts at cigarette regulation would have little chance of being approved ,and expressed his favor for recommendations to encourage voluntary regulation by the cigarette industry.
    http://tobaccodocuments.org/lor/00496462-6465.html

    Dec 8, 2009

    “The B.C. decision will demonstrate that the government of Canada has known about the risks associated with smoking for decades and that it instigated and promoted the development and sale of lower-tar tobacco products.” Imperial Tobacco’s vice-president, Donald McCarty, said in a statement.”

    “The industry’s strategy has always been to blame someone else,” said Rob Cunningham of the Canadian Cancer Society.”
    http://www.reuters.com/article/2009/12/09/canada-tobacco-idUSN0822092520091209

    Supreme Court Ruling is Victory for Consumers Deceived by Tobacco Companies About Light Cigarettes

    “Washington, DC – The U.S. Supreme Court today delivered an important victory for consumers by ruling that a class-action lawsuit against Philip Morris alleging the fraudulent marketing and sale of “light” cigarettes can be heard in state court, in this case in Arkansas.
    In overturning a lower court ruling, the Court unanimously rejected Philip Morris’ argument that such cases should only be heard in federal court because they claimed that tobacco companies acted as “officers” of the United States government in their testing and marketing of light cigarettes.

    Only a tobacco company would have the gall to argue that its deceptive practices are government-sanctioned acts.”
    http://www.tobaccofreekids.org/press_releases/post/id_1000

  5. junican Says:

    In my naivety, I had in mind that ASH ET AL must have ‘a speechwriter’. The thought that ASH (having only 8 employees in England) could be big enough and wealthy enough to employ a fully-fledged media department never entered my head – until I read the McTear case. We now know that ASH does indeed have such a department, under the direction of Professor Hastings (or was so). We now know that ASH statements are specifically tailored with ‘advertising verbal tricks’. For example, they might say some thing like, “It is ABSOLUTELY CLEAR AND PROVED BEYOND DOUBT THAT SMOKING MAY CAUSE DISEASES. Note the word MAY. In other words, what has been proved is only a possibility and not a fact.

    It is easy to see why these tricks are used. The purpose of ASH press releases is to sway public opinion and the purpose of the RCP documents is to sway the Government.

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