Tobacco: no smoke without fire
10 June 1998
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Supreme Court denial of certiorari leaves exclusive dealing and loyalty discount jurisprudence in flux
7 May 2013
Lovell White Durrant litigation partner John Meltzer is co-ordinating the UK tobacco industry's legal challenge against the proposed European ban on tobacco sponsorship and advertising.
Last week the firm applied on behalf of four giant tobacco companies - British American Tobacco (BAT), Gallaher, Imperial Tobacco and Rothmans - for judicial review of the European Council directive containing the ban.
The companies are asking the High Court to refer the case to the European Court of Justice for a ruling on the directive's validity.
They are challenging the directive on the grounds that it is illegal as, amongst other reasons, the EC does not have authority to introduce such legislation and the terms of the directive breach the European Convention on Human Rights.
The tobacco industry has claimed that even the European Parliament's legal affairs committee and the EC's own legal advisers do not believe the directive's provisions have a sound basis in law.
The companies hope to have the directive thrown out before July 2001, when member states have to start implementing measures and bringing the provisions into national legislation.
A decision from the High Court on whether or not to refer the case to the European Court of Justice is expected before the end of the year.
Lovells is also advising the tobacco industry on further judicial review proceedings following the publication of a report from the Government's scientific committee on tobacco and health in March. The report contained a number of damaging conclusions for the industry.
These latest proceedings show that tobacco litigation is increasingly big business in the UK.
On the other side of the fence, lining up to tackle the tobacco companies are Leigh Day & Co and Irwin Mitchell.
The two firms are co-ordinating the multi-party product liability action being brought by 54 lung cancer victims against Imperial Tobacco, which is being advised by Ashurst Morris Crisp, and Gallaher, advised by Simmons & Simmons.
Freshfields and Cameron McKenna are also believed to be acting for the US tobacco companies, but are not yet involved in litigation.
However, litigation has yet to reach similar levels here as in the US. The lung cancer case is so far the only personal injury class action against a tobacco company in the UK.
Over 500 firms in the US are estimated to be involved in defending the interests of tobacco companies.
But several of the defendant firms have fallen foul of the bad publicity that can arise from working in such a controversial field.
The London office of blue-chip US firm Covington & Burling found itself in the line of fire earlier this year following the Internet publication of a letter from the office dated 1990.
It listed its achievements in setting up a consultancy programme where consultants favourable to the industry were placed in positions of influence. Under the heading "Lancet", it claimed: "One of our consultants is an editor of this very influential British medical journal, and is continuing to publish numerous reviews, editorials and comments on ETS [environmental tobacco smoke] and other issues."
The letter was made public when Philip Morris was forced to disclose confidential documents as part of a case brought by the state of Minnesota, which was looking to recover from tobacco companies the cost of treating patients whose illnesses were caused by smoking.
An investigation by The Lancet's ombudsman found that there was no evidence there had been an editor with tobacco industry connections and suggested the letter could be referring to an occasional contributor.
In the US there has been public criticism of the methods of tobacco company lawyers. Documents have shown lawyers constantly advising their tobacco clients to send all scientific research through their offices so that it can be deemed "privileged". Some anti-tobacco politicians have called this an abuse of legal privilege.
UK firms are also careful to ensure that their clients retain privilege. The Lawyer has seen a March 1988 letter written by Andrew Foyle at Lovell White & King (Lovell White Durrant's predecessor) and sent to a research arm of its client, BAT. The letter states: "Last Friday we discussed a modus operandi for collecting scientific evidence relating to Buerger's disease to ensure that legal professional privilege is not lost."
Foyle, now a Lovells partner in Hong Kong, adds in his 1988 letter: "Because correspondence on the subject of Buerger's disease between you and your colleagues in other companies might not be privileged, it is important that contact between the scientists should be routed through the lawyers."
The case went to trial and was concluded two years ago. Alison Crawley, head of policy at the Law Society's professional ethics department, said: "All the lawyers are doing is acting in their client's best interest and there is nothing unethical in that. It may be that they can argue in court that the material is indeed privileged," she says.
But will the public see it like this? In the US, the PR tide has turned so far against "Big Tobacco" and its lawyers that some law firms are now publicly vowing not to represent the tobacco companies.
Washington DC-based Wilmer Cutler & Pickering is one such firm. And even the big commercial firms are joining the side of the plaintiffs. This spring, 400-lawyer
New York firm Dewey Ballantine was appointed by national health insurance companies to sue the major tobacco companies.