Last updated: September 2020
Suggested citation: Slattery, C., Zhou, S., George, A. & Liberman, J. 19.6 Other substantive obligations. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2020. Available from: https://www.tobaccoinaustralia.org.au/chapter-19-ftct/19-6-other-substantive-obligations
19.6.1 Protection of the environment (Article 18)
Article 18 provides Parties must have ‘due regard to the protection of the environment and the health of persons in relation to the environment in respect of tobacco cultivation and manufacture’. This obligation is intrinsically linked with article 17, and the policy options and recommendations on economically sustainable alternatives to tobacco growing adopted by the COP address both Articles 17 and 18 together.1
In Australia, there is no commercial tobacco farming or lawful domestic manufacturing of tobacco. For more information, see Chapter 10, Section 10.3 The manufacturing industry in Australia and Section 10.15 The environmental impact of tobacco production.
19.6.2 Liability (Article 19)
The WHO FCTC encourages Parties to take action on civil and criminal liability in relation to tobacco control. Under Article 19 of the WHO FCTC, Parties ‘shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability, including compensation where appropriate’, and cooperate and provide assistance to each other in relation to legal proceedings.
In Australia, a pivotal case against the tobacco industry commenced in late 2001, when Mrs Rolah McCabe brought a case against British American Tobacco (BAT) Australia in the Supreme Court of Victoria. Rolah McCabe had started smoking in the early 1960s at the age of 12. Rolah sued BAT arguing that it had been negligent in its manufacturing and marketing of cigarettes, and that its negligence had caused her lung cancer. She sought damages. Rolah argued that BAT knew that cigarettes were addictive and dangerous to health, took no reasonable steps to reduce the risk of addiction or the health risks, targeted children in its advertising, and ignored or publicly disparaged research results which indicated the health risks of smoking. In April 2002, Rolah became the first person outside of the US to obtain a verdict against the tobacco industry in a personal injury claim, though the verdict was overturned on appeal later that year. Rolah died before the Court of Appeal's decision was handed down. Her daughter, Roxanne Cowell, sought special leave to appeal against the Court of Appeal's decision, but the High Court refused the application. The effect of the High Court's refusal was that the Court of Appeal's decision sending the case for trial stood. The case remained in the courts for almost 10 years, before being settled confidentially in March 2011.
The case has had profound lasting effects. The evidence that the case uncovered was used by the US Department of Justice in its multi-billion dollar lawsuit against the US tobacco industry under anti-racketeering law. The case led to the enactment of new Victorian civil and criminal legislation relating to document destruction. More than ten years on, it is routinely taught in Australian law schools in subjects on civil litigation and legal ethics.
For more information, please see http://www.mccabecentre.org/about/about-the-mccabe-case. For more information on tobacco litigation in Australia, see Attachment 16.1 McCabe v British American Tobacco and its aftermath and Attachment 16.2 Australian cases on exposure to secondhand smoke in which compensation has been paid, 1986 to 2005.
1. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Policy options and recommendations on economically sustainable alternatives to tobacco growing (in relation to Articles 17 and 18) decision FCTC/COP6(11). World Health Organization 2014. Available from: http://www.who.int/fctc/treaty_instruments/Recommendations_Articles_17_18_English.pdf?ua=1.