New report is a drag for tobacco business

Roger Pearson reports on tobacco giants' fight to suppress a government report which could curb the advertising of tobacco.

British American Tobacco, Gallagher, Imperial and Rothman's have won the right to seek judicial review of a government report calling for wider curbs on tobacco advertising and smoking in public.

The tobacco companies claim the Scientific Committee on Tobacco and Health's report could damage their businesses. They want the report quashed.

Now Mr Justice Moses has given the green light for them to mount an application for judicial review, which will also include an application for an injunction banning the Government from taking the report, published in March, into account when considering any new smoking legislation.

The judge, who had been told by Jonathan Sumption QC for the tobacco companies that the report was "damning", said – in granting leave for the application – that the companies had convinced him they had an arguable case and that they should have been consulted and given a chance to comment prior to publication of the report.

In arguments bound to be aired when the case reaches full hearing Mr Sumption told the judge that the report had adopted arguments that the tobacco industry was setting out to recruit new smokers to replace the ones already killed by smoking. He said the suggestion was that the industry was targeting the young and vulnerable to recruit the 300 new smokers a day needed to replace those who died from smoking-related diseases.

Mr Justice Moses said he considered that the report appeared to be an attack on the "commercial morality" of the tobacco companies and that it contained remarks which, at least on their face value, had the power to cause instant and irreparable damage.

He said that while the conclusions drawn in the report were not open to legal challenge, it was arguable that those who drew up the report should have paused to consider giving the tobacco industry an opportunity to comment prior to publication of the criticism.

"It was intended to be a scientifically rigorous report. Arguably there was not much scientific rigour about the passages I have quoted," he said.