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Monday, August 16, 2010

Tobacco Companies Are In A Losing Battle, Say Govt Lawyers

THE resolve of the Federal Government to seek legal redress against tobacco companies, for targeting children and underage smokers and overburdening the health system, continues with a suit that is still in its preliminary stage after two years. While government has demanded compensation of £22 billion for expenses on tobacco-related diseases, concerned companies have maintained that the figure is unjustifiable and other allegations are unproven.

But government lawyer, Babatunde Irukera of SimmonsCooper Partners, describes tobacco as an anomaly because “it doesn’t comply with the general product-liability theory of liability, which mandates a company to take responsibility for injuries that arise from the use of its product when it is used in the manner and for the purpose it was set out to be used.”

“Tobacco is the only product I know, that, used exactly the way it was designed to be and for the purpose for which it was designed, causes injury or fatality. I wanted to know why consumers were interested in using a product, which they know serves no other purpose other than to injure or kill? I wanted to know why manufacturers would not modify a product designed in this manner. So, I did researches on history of the product and its liabilities, the litigation in US, the discoveries, the misrepresentations, and the fraud. I doubt if there’s anyone out there who will start where I started, review what I have reviewed, arrive where I am now, and will not be outraged. The only reaction I consider appropriate is outrage, even from defence counsels.”

But there are arguments that tobacco smoking is a matter of choice, and as such, the whole noise about cigarette is unnecessary. He disagrees: “It is not a matter of choice, for the vast majority of smokers. There is a very common Latin theory of law, which means voluntariness should not result in injury. You cannot make a choice to voluntarily accept to do something and then hold someone else responsible for the resulting injury. But that’s just the way it looks upfront. As you go a little further down, you see that choice is a matter of entire control.

“In making a choice, you must exercise control over the entire factors and dynamics of the choice-making process. But that doesn’t happen in the smoking game, because as a matter of law, a minor is incapable of making choice, because of the way minors think and the kind of choices they would make. That is why they can’t vote, because we don’t think that they have the capacity to exercise choice in a manner that is consistent with appropriate life expectation. So, the tobacco companies target these minors, who are not in a position to look at something from a risk analysis standpoint. So, if you can get a minor to smoke, the question of whether they are making a choice on what is dangerous or not does not occur.”

So, when minors become adults and are aware of the dangers, why don’t they quit? “The business model of tobacco companies,” Irukera explains, “is to target minors and addict them in such a way that it becomes a dependency issue. So, even when minors become adults, they are dependent. So, in all of these, the element of choice is completely eliminated.

“But one last thing about choice is that you make a mistake to think that the only person who is at risk of injury is the smoker. What about other people in public places, or family members, whose exposure to tobacco smoke makes them no less susceptible to serious diseases or death, than the smoker. And the argument may arise that it is in his home. I haven’t seen anywhere in our laws where a man can take prerogative of the right to kill his child. Or, where a woman, exercising her prerogative, chooses to become pregnant, yet under law loses that prerogative to determine whether to abort that child or not. So that whole question of choice is a contrived defence by the industry.”

IRUKERA would have none of claims by Catherine Armstrong, BAT’s spokesperson in London, that government’s £22 demand for tobacco-induced expenses “does not add up.” “The question I would have loved Mrs. Armstrong to answer is how £22billion in profit adds up to five million people dying annually. You know, there are certain situations you are in, and you know frankly that silence is just better than any response. We are talking about tobacco companies that have said they should be appreciated, because when people smoke and die, the government is socially responsible to lesser number of people. Those are the questions Mrs. Armstrong should be addressing. However, what the government is talking about is damage that has occurred and is occurring, and extrapolating what the future damage would be.”

The way out, he says, is to make tobacco companies accountable to the society. “Since we are starting from way behind, as a developing country dealing with myriads of developmental issues, from malaria in the 21st century, to polio, infant mortality, maternal mortality, child education, illiteracy and governance, the most effective social approach is to hold the industry accountable. We don’t have the resources to start now, and then meet up down the line. We are talking about a society where there’s so much poverty, where some people still do not have water to drink. If a tobacco company puts up a well, what do you expect? We must get tobacco companies accountable; at a minimum, they must adhere to standards that have been adopted against them and for them in their own countries, because their business cannot run in England or US the way it runs in Nigeria.”

Another government lawyer, Dapo Akinosun, thinks same of tobacco, saying that the industry will be regulated, no matter the duration of the legal tussle. “Tobacco is a dangerous product, and for many years, we were deceived into smoking it. I was a victim when I was younger. I was lucky to stop. I have no health defects because the human body can naturally repair itself, depending on the level of damage. But in some cases, damage can be irreparable.”

He also expresses confidence that the case will be won by government: “There is always the victory of right over wrong, of good over evil. Of course, tobacco companies have very deep pockets, but as you can see all over the world, they are in a losing battle; it’s only a matter of time. We know that if the society does not stop them, we will someday get to a level where four-year olds smoke.”
ALL efforts to get pro-tobacco lawyers to discuss the myriads of allegations against the product and their makers were met with polite reticence. Fourth defendant, Mrs. Funke Adekoya SAN, Managing Partner, AELEX Legal Practitioners and Arbitrators, when contacted on phone, said: “Well, I’m sorry. I’m involved in the litigation, so I’m not in a position to speak on it at all. No, I can’t say anything on it.”

Also, third defendant, Elias Gbolahan, declined to speak, saying: “I don’t even comment on cases that I am not involved in, not to talk of cases that…. It can’t happen now, it’s unprofessional. I have absolutely no comment sir. I’m sure there would be other people who would probably be happy to talk to you. I don’t think it is right to comment on the pages of a paper.”