Tobacco companies plead their case in court

A tobacconist installs factitious neutral cigarette packaging in a tobacco shop during a national day of protest by French tobacconnists against neutral cigarette packaging that French government wants to reintroduce in his new draft Health law on September 8, 2015 in Colmar. The French Senate will begin on September 14 the draft Health law public examination which one of its objectives is to reduce youth smoking. AFP PHOTO / SEBASTIEN BOZON (Photo credit should read SEBASTIEN BOZON/AFP/Getty Images)


The tobacco companies’ efforts to extinguish the $15 billion in damages awarded by the Superior Court to Quebec smokers are coming to an end.

The parties concluded their arguments Friday in the Court of Appeal in Montreal, but the court asked them to come back next Wednesday to answer the questions of the five judges who heard them.

Essentially, the arguments of Imperial Tobacco, JTI-Macdonald and Rothmans-Benson & Hedges revolve around a concept that approximates the “informed consent” of smokers.

“Consumers were aware of the risks associated with smoking for decades,” said Eric Gagnon, director of corporate affairs for Imperial Tobacco, in an interview with Presse Canadienne.

“In the 1970s, there were already health messages that exposed the risks associated with tobacco use, and so we continue to believe that we should not be held accountable for the decisions of adults,” he said.

In court, one of the lawyers of the cigarette manufacturers, Simon Potter, summarized this thesis: “There is no evidence that anyone has induced anyone to do anything.”

“Judge (trial judge Brian) Riordan has taken into account this argument, which is not new, which was served several times before and during the trial and it is very clear that this can not apply because the responsibility of the manufacturer, even if people had some knowledge, is recognized, ” said Mario Bujold, director general of the Quebec Council on Tobacco and Health while leaving court.

However, this is not the only argument put forward by the small army of lawyers detained by the cigarette-makers, whose 141-page appeal submitted that Judge Riordan, among others, misapplied the principles guiding class actions, misinterpreted the concepts of “causality of conduct” and “medical causation,” and misunderstood the responsibility of tobacco retailers to inform consumers about addiction, health risks and related risks of risk management by governments.

Riordan is also alleged to have erred in his analysis of document retention practices, some of which were destroyed by tobacco companies, as well as in his assessment of punitive damages and limitation periods.

In June 2015, Judge Riordan estimated the three cigarette dealers had “passed their profits before the health of their customers,” calling their actions “particularly reprehensible.” The three companies were covered by two collective actions.

The first was initiated on behalf of 100,000 Quebec smokers who were victims of lung, larynx and throat cancer, and emphysema caused by tobacco products, and the second one for people dependent on nicotine contained in cigarettes.

Smokers alleged tobacco-makers knew — or should have known about — the health effects of their products. And that in spite of that, they sold them, with the help of elaborate marketing techniques.

The trial began on March 12, 2012, but the proceedings had been instituted since 1998.

Some 76 witnesses had been heard and approximately 43,000 documents had been filed, according to the Quebec Council on Tobacco and Health, which carried the case at arm’s length, including internal and confidential notes from the companies involved and studies showing smokers did not know or did not understand the risks associated with cigarettes.

In addition, these three cigarette manufacturers are targeted by a $60-billion lawsuit by the Quebec government to recover the cost of health care for smokers.

Last May, the Supreme Court of Canada refused to hear JTI-MacDonald, which tried to invalidate the “Act respecting the recovery of the cost of health care and damages related to tobacco” adopted by Quebec in 2009.

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