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 COP6 address both Articles 17 and 18 together.¹

A decision on the implementation of Article 18 was adopted by COP10. The decision urges Parties to ‘take into account the environmental impacts from cultivation, manufacture, consumption and waste disposal of tobacco products and related electronic devices’; encourages Parties to consider and requests the Convention Secretariat to examine regulatory options to address waste generated by the tobacco industry and its products, including cigarette filters and related electronic products; urges Parties to adopt measures to protect the rights of workers exposed to occupational hazards in tobacco cultivation and manufacture; and invites Parties to hold the tobacco industry accountable for environmental damage, worker health and waste management, among other things.²

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 and wholesaling industry in Australia – major international companies and Section 10.15 The environmental impact of tobacco production.

19.6.1 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. COP10 adopted a decision on the implementation of Article 19, which urges Parties to take various actions to hold the tobacco industry accountable for their conduct, including through stronger liability regimes, information exchange and policy coherence. The decision also re-established an Expert Group on liability to better support Parties’ implementation efforts.³

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 https://www.mccabecentre.org/about/the-mccabe-case.

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.

References

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), FCTC/COP6(11). World Health Organization 18 October 2014. Available from: https://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6(11)-en.pdf.

2.  Conference of the Parties to the WHO Framework Convention on Tobacco Control. Implementation of Article 18 of the WHO FCTC, FCTC/COP10(14). World Health Organization 10 February 2024. Available from: https://storage.googleapis.com/who-fctc-cop10-source/Decisions/fctc-cop-10-14-en.pdf.

3.  Conference of the Parties to the WHO Framework Convention on Tobacco Control. Implementation of Article 19 of the WHO FCTC: Liability, FCTC/COP10(13). World Health Organization 10 February 2024. Available from: https://storage.googleapis.com/who-fctc-cop10-source/Decisions/fctc-cop-10-13-en.pdf.