Leading Article: Yes, smoking kills, but litigation is ruinous

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The Independent Online
The American tobacco industry has just agreed to hand over pounds 220bn, enough to keep our National Health Service going for five years. It is an astonishing sum of money. The amount earned by lawyers working on a percentage boggles the mind. But then, the tobacco industry has done wrong. It concealed information about the link with cancer and the addictiveness of nicotine. So should it not pay? And, if the answer is yes, then the next question is, should British tobacco companies not pay here?

No sooner had the monster American settlement been reached than a health authority spokesman was on our television screens saying they intended to look at whether such an action could be taken to the courts here. Yesterday, the doctors' trade union, the British Medical Association, urged them on. Well, hold on a minute. This is a case not so much of running before they can walk but of trying to fly. It would be extraordinary, and a dramatic change to our legal system, if health-care providers in this country could sue tobacco companies for the cost of treating their customers.

There is a case already, due to go to the High Court next week, in which a group of cancer sufferers is suing Gallaher and Imperial Tobacco. It is already pushing at the boundaries of British legal practice: it is the first case brought by a group of litigants - a foretaste perhaps of the "class" actions which so dominate the American system - and they have to prove that the companies showed negligence in failing to cut tar levels in their cigarettes when they knew this would reduce the number of cancer cases. Given that these cases concern people who knew cigarettes caused cancer and yet chose to smoke, that is a tough charge to make stick.

What is unthinkable is that English or Scottish courts should hold that the tobacco companies owe a duty of care at one further remove, not just to their consumers but to the health-care providers who have to treat them when they start coughing up blood. Certainly, the makers of cigarettes have wider obligations than simply to their customers, as do the makers of fast cars, motorbikes and everything else. But these are not obligations which should be enforced by individuals through the legal system. That is what we have politics for. Of course there is a public interest in minimising lung cancer and road accidents. That is why we have laws to discourage smoking and make the roads safer.

The problem in America is that individuals have to pay for their own health care. And here was a clear case of manufacturers concealing information about the safety of a product. In fact, the American settlement is limited to the period when the tobacco companies knew things that the rest of us did not. They suppressed findings on the link to cancer and consistently lied about the impact of cigarettes on health. For that, they should pay. By all means let us punish British companies if they have behaved as badly as their American cousins. The principle of reparation is right. It is the scale of the US settlement that seems strange. It is disproportionate to the culpability of the tobacco giants - wicked, greedy and, well, capitalist as they might have been. After all, we are talking about cigarettes. You do not need a laboratory full of corgis dosed up until half of them die to know that smoking is not particularly good for you. You do not need to read research papers to know that it makes you cough. You do not need a PhD in pharmacology to know it is addictive.

Now we know about cancer, it is up to the individual to choose whether to smoke or not (although the tobacco companies might want to contribute to schemes focused on the causes of smoking among young women). But it should also fall to smokers to pay the cost of treating smoking-related illnesses. In America, they now will. Here, they already do.

Yes, that's right. And no, we have not suddenly swallowed the tobacco industry's propaganda. In Britain, four-fifths of the price of cigarettes goes in tax. In America, the average is around one-third. In this country, the pounds 10bn annual revenue from tobacco taxes easily covers the cost to the health service of treating tobacco-related illnesses, which is usually put at under pounds 1bn a year.

We are not prejudiced against the United States in proclaiming the superiority of the British way. We are only prejudiced against lawyers. It is a paradox that the Land of Free is actually a land chained by excessive legislation, litigation and pettyfogging nannydom. As Charles Arthur wrote in our pages last week, you almost expect paving stones there to be marked: "Danger: falling on this sidewalk can cause injury." It has become fashionable - not least in the Labour Government - to complain about excessive bureaucracy in the NHS. This is nothing compared with the vast, rickety network of pen-pushing, form-filling insurance companies, doctors and lawyers which "manages" health care in the US. This consumes a much larger proportion of America's much larger income than the NHS does in Britain, and yet it still fails to provide cover for some 35 million American citizens. These have to fall back, if they become ill, on the publicly-funded safety- net service known as Medicaid, and it was these Medicaid programmes which were at the centre of both the litigation against and the settlement with the tobacco industry. In a sense, the American legal system was ensuring a measure of social justice that we have secured in this country through our political system. The US tobacco companies will now have to put up the price of cigarettes by about 50 cents a packet in order to pay for some of the health-care costs of the less-well-off. The combination of tobacco taxes and an NHS free at the point of need achieves all this and more in Britain at a fraction of the cost in lawyers' fees.