Legal Advocacy to Enforce Tobacco Control

1. National Capacity Building Workshop for NGO Personnel on Tobacco Control February2-3, 2009. Amit Yadav Legal Officer HRIDAY Legal Advocacy to Enforce Tobacco Control

2. Why to Legal Advocacy ???

3. What are we dealing with?? To Enforce Rights (individual and public) To Enforce laws (local, national and international) To Counter Industry tactics To Seek Damages (personal and public/class action) To Fix Liability (Civil and Criminal) Mobilize interest groups and individuals Propagate the issue and create media impact

4. The FCTC encourages tobacco litigation: Article 4.5 provides that “issues relating to liability, as determined by each Party within its jurisdiction, are an important part of comprehensive tobacco control.” Article 19.1 provides that “For the purpose of tobacco control, the Parties shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability, including compensation where appropriate.”

5. International human rights law The Universal Declaration of Human Rights 1948 (UDHR) International Covenant of Civil and Political Rights (ICCPR) 1966 International Covenant on Social Economic and Cultural Rights (ICSECR) 1966 Convention on Elimination of Discrimination against Women (CEDAW) 1979 Convention of the Rights of the Child (CRC ) 1989

6. Fundamental, Constitutional and Legal rights of a citizen Right to life “fundamental, non-derogable & non-negotiable” Right to healthy and wholesome environment Right to protection of health from unlawful infringements Duty of state to ensure highest standard of health (directive principles of state policy particularly article 39(e) and (f), 41 and 42 ) Right to enforcement of laws (writ of mandamus) Right to information Right of consumers to Safety, Information and Health Immediate rights under Tobacco Control Act, 2003

7. Role of Litigation in tobacco control

8. Court Order for tobacco control Court orders force the industry to stop illegal practices, e.g. violations of advertising bans Implementation of specified warnings Smoke-free India since October 2nd 2008 Court orders force the government to apply legal and constitutional requirements e.g. requiring government to protect health of nonsmokers by banning smoking in public places Police Commissioners of the major cities to report to the Court on action taken to enforce the advertising code

9. Public interest v. Compensation Jurisprudence Our country allows NGO’s to bring legal cases to enforce legal, constitutional, and treaty provisions; others (like the US) do not Public interest litigation(PIL) resulted in Supreme Court order that established strong secondhand smoke protections even in absence of an specific law However we are lacking with regard to compensation cases (which are used in US to hold tobacco companies liable)

10. Nature of Litigation Workmen compensation disability, and other cases against employers  Protecting children exposure to secondhand smoke custody disputes Child labour (beedi industry) Protecting Women Class action against industry Individual Compensation Claims Cigarette fire cases Smuggling Cases

11. Litigations World Over

12. class action case by nonsmoking flight attendants that resulted in funding the Flight Attendants Medical Research Institute in Florida. “I was told by my doctor that I have the lungs of a smoker-and I have never smoked.” Patty Young

13. United States Kufahl v Wisconsin Bell Inc (Wisconsin Labour and Industry Review Commission) Claim: dismissal from employment due to cigarette smoke allergy Compensation: awarded $US23,400, affirmed on review U.S. v. Philip Morris et al: Judge in racketeering case found tobacco companies committed 6 kinds of fraud A California Jury has found Philip Morris and R.J. Reynolds liable for the wrongful death of Leslie Whiteley from lung cancer at the age of 40.  Compensatory damages of $2.4 million have been awarded to the Whiteley family and punitive damages against R.J. Reynolds The Oregon Supreme Court unanimously reinstated the $79.5 million punitive damages verdict in the Williams case. 

14. Australia Bishop v The Commonwealth of Australia (Administrative Appeals Tribunal, A84/109, 14 October 1985) Claim: allergy and nausea from exposure to smoke Compensation:  $16,000 Carroll v Melbourne Metropolitan Transit Authority (Work care claim, Victorian Accident Compensation Tribunal, July 1988) Claim: lung cancer Compensation: $65,000 out of court settlement

15. Britain Kanal v British Airways PLC (UK County Court, Chichester) Claim: breach of contract Compensation: settlement of £300 An aircraft passenger and family who booked non-smoking seats were exposed to smoke drift. Farren v Reading Council (UK Local Court) Claim: negligence Compensation: £100 plus court costs and £50 loss of wages The respondents failed to enforce a smoking ban at a music festival.

16. Netherlands Dutch Non-smokers’ Association (CAN) v Local Council Claim: non-compliance with tobacco laws in neighbourhood centre Outcome: council required to make the centre smoke-free within three months (with the possibility of smoking in a closed area)

17. Norway Reidun Kaland Sandsted v Vesta Insurance Company (Norwegian Supreme Court, 30 October 2000) Claim: lung cancer. Compensation: NOK 2.4 million (equivalent US$260,000) plus court costs Although a smoker, the plaintiff claimed that her exposure to ETS at a night club at which she worked contributed to her development of cancer. The claim for compensation was made against her employer’s insurance company.

18. Canada Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30 The court upheld the duty of the state to protect citizens from "debilitating and fatal diseases associated with tobacco." Banning cigarette advertising due to its aiding and abetting in the violation of cigarette sales laws has also been upheld Tobacco control does not violate freedom of speech and expression or freedom to trade and profession (both not being absolute rights)

19. Litigation in India Century of cases across the country over COTPA. Cases in Allahabad, Bangalore, Chennai, Delhi, Jabalpur, Jodhpur, Mumbai, Nainital, Shimla and other High Courts. Kasturi & Sons Vs. UOI –WP(C) 12344/ 2005.(Jurisdiction-Delhi HC) Mahesh Bhatt Vs. UOI -WP (C) 18761/2005 (Jurisdiction Delhi HC) Sridhar Kulkarni Vs. UOI -WP(C)6151/2005 (Jurisdiction-Bombay HC) Namdeo Kamathe Vs. UOI-WP ( C) No 8763 /2005 (Jurisdiction Bombay-HC)

20. SK Jaggi Vs.UOI (Jurisdiction-Bombay HC) Action Council Against Tobacco-India (ACT-India) and 3 others.PIL 42/2007, filing date 20th April 2007. (Jurisdiction-Bombay HC) Shimla HC Case Ruma Kaushik Vs Naresh Dayal & Anr.-Contempt petition 14/2007 Ruma kaushik Vs Naresh Dayal CMP 968/2007 Ruma Kaushik Vs State CWP 1259/2007 Sumaira Abdulali Vs UOI – PIL/182/07 ( Jurisdiction : Bombay, Maharashtra) S.K. Mathur Vs UOI 5748/2005, (Jurisdiction :High Court of Rajasthan Jaipur Bench)

21. Cases continued… Godawat Pan Masala Vs UOI. W.P. (C) 7835 of 2007-(Jurisdiction Karnataka High Court Bangalore). Struggle Against Pain Vs UOI-25097 /2007 -(Jurisdiction-Allahabad(U.P) Karnataka bidi Industries association Vs UOI-17858 / 2007 (Jurisdiction-Bangalore HC ( Karnataka) NOTE vs Shahrukh Khan(Bombay) Narinder Sharma & Anr. Vs. Union of India & Ors. W.P.(C) No. 518/2007

22. What can we do???

23. Constant Monitoring and Reporting Reporting violation and following it up NGO Reports (e.g. Tobacco Report India by MOHFW, HRIDAY and Healis) that can be used as base for initiating and supporting litigation. Shadow Report under ICSECR, ICCPR, CRC, CEDAW, ILO Conventions etc. Undertake Evidence Based Research Capacity Building of lawyers (at the State and District levels) in Tobacco Control

24. Grass root advocacy and Litigation Constant follow up with litigation and advocacy around it Mobilize Public Opinion against tobacco use Public Movement with Public Participation Narmada bachao Tihri Dam Green revolution Chipko movement Movement to save Coastal environment and habitat Majdoor Kishan Sakti Sangathan by Aruna Roy Water movement Forest rights movement and the resulted law Movement against displacements and the National Policy Sustainability of the Movement ???

25. Where are we challenged?? Industry and not we are going to the courts ..!! Expensive and tedious litigation process Lack of interest in the individuals and organizations to pursue the cause Need of tobacco control advocacy and adequate sensitization of the Bar and the Bench as well Lack of evidence based research and documentation to support litigation Non-utilization of compensation jurisprudence Industry attempt to divert attention from tobacco control by filing vexatious cases

26. Industry smokes away the law Tobacco industry’s continuous resistance to strong tobacco control laws or regulations Violation of regulations by the industry (e.g. ad ban) Industry’s efforts to influence policy makers and affect decision making process by way of distorted facts Industry’s tactics to delay implementation of the law

27. Legal Hand - Upper Hand Keep litigating, it ensures compliance of the law (the squeaky wheels gets the oil) Works against the Corporate Social Responsibility (CSR) image of the tobacco industry and keeps the industry thinking. Generates awareness and media attention Important tool to fight against organised tobacco industry

28. Thank You