Tobacco and Public Health - TCSC Indonesia

NGOs obtained sanctions against tobacco firms that were engaged in illegal promotion
and advertising (Rendezvous with Mahamane Cisse 2000).
Some legal systems do permit NGOs to bring ‘public interest’ actions to require the
government to enforce the law, including relevant constitutional provisions. The 1999
pioneering case in the Indian state of Kerala produced a judicial order applying the
constitutional right to health protection by requiring the police to enforce a ban on
smoking in public places. This was followed by a similar ruling by the Indian Supreme
Court in November 2001, which led to action by governmental bodies throughout
India banning smoking in public places (Murli et al. 2001). Another case in Uganda
produced a settlement with the government to the same effect (The Environmental
Action Network, Ltd. et al. 2000).
Industry counter-attacks
RICHARD A. DAYNARD 697
While the tobacco industry became increasingly litigious in the course of the 1990s, it
threatened more litigation than it brought. It would typically send its lawyers to meetings
of local legislative bodies that were considering strong tobacco-control measures. They
would ‘inform’ the lawmakers that the measures they were considering were beyond their
jurisdiction; were unconstitutional; and/or were ‘preempted’ by higher state or federal
law that were expressly or implicitly inconsistent with the proposed regulations, or else
that simply ‘occupied the regulatory field,’ leaving no room for local regulation.
Sometimes the lawmakers would back down and pass ineffective measures instead.
Often, they would go ahead with the strong measures, and the threatened lawsuits did not
materialize. Occasionally the industry (typically acting through local stores, restaurants,
or bars, whose legal bills they would cover) would actually file suit to restrain the enforcement
of the measures: these cases came out both ways, typically depending on nuances of
the local and state laws involved, as well as the disposition of the deciding judge.
The industry did score some high-level judicial victories that set back important
tobacco control initiatives. In 1995 the Canadian Supreme Court invalidated Canada’s
cigarette advertising restrictions as a free-speech violation, reasoning that the government
had not shown these restrictions to be necessary or effective as a public health
measure (MacDonald 1995). The government later adopted even more sweeping
restrictions on the industry’s marketing behavior: a trial in Montreal in 2002 and subsequent
appeals will test whether the evidence the government has gathered in support
of its new law will assuage the Court’s concerns. Similarly, a 2000 decision by the
European Court of Justice invalidated a European Union (EU) advertising ban on the
ground that it was not adopted through the appropriate EU processes. As with Canada,
the European Commission has tried again, and the validity of their renewed efforts will
again be tested through litigation brought by the industry.
In the United States, two major Supreme Court decisions based on legal challenges
from the tobacco industry may have produced more lasting damage. In a 2000 decision,