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The tobacco industry

Criminal lawyer Benedicte Ficq has pressed charges against the four largest tobacco manufacturers in the Netherlands, on behalf of two ill ex-smokers. An increasing number of public institutes have joined in the case, including the UMCG. How realistic are these charges?
By Jurgen Tiekstra / Translation by Sarah van Steenderen

Rolf Hoving

University Lecturer of Criminal Law

‘It’s difficult to properly comment on the charges and how realistic they are, partly because the charges are so unique. No one has ever tried to pursue criminal charges against the tobacco industry. In the Netherlands, victims of criminal offences do not have the authority to charge suspects themselves; only the Public Prosecution Service (OM) can decide whether or not a suspect should be summoned to appear before the courts. And the OM has been working on making a decision since Ficq pressed charges in 2016.

From what I understand, they’re trying to press charges for attempted homicide, manslaughter and aggravated assault. These are all intentional offences. In other words, the tobacco industry will have had to intentionally try to kill or assault people. The trial would probably focus on this particular issue. Can you claim intent to kill someone when that person voluntarily smokes cigarettes? If people voluntarily do something dangerous, is holding the person who provides the opportunity for the dangerous act responsible the reasonable thing to do? Eating a lot of food from McDonald’s is also unhealthy. Does that mean we should press charges against McDonald’s for attempted assault of their customers?

On the other hand, the victims claim that the manufacturers are deliberately making their cigarettes more addictive than they are. This could be seen as the tobacco manufacturer deliberately curtailing smokers’ freedom of will. This could then mean that tobacco manufacturers did knowingly supply people with harmful substances against their will.

Other issues pose a problem as well, such as: is there a causal link between the tobacco industry’s actions and specific individuals’ injuries? And: are tobacco manufacturers legal entities that can be considered perpetrators?’

Brigit Toebes

Associate Professor International Health Law

‘I have a grant from the Dutch Cancer Society to study how this issue relates to human rights. The charges don’t mention it, but it could potentially be presented as an additional argument. The state ratified human rights treaties, because they were initially passed after the Second World War to protect us from governmental abuse. But there has been a larger discussion going on about the responsibility to human rights of non-state actors, especially corporations.

They didn’t ratify these treaties, so legally speaking they’re not beholden to them. However, in 2011 John Ruggie, a special UN representative of Business and Human Rights, enacted authoritative Guiding Principles which acknowledge that corporations are responsible for respecting human rights.

When it comes to the tobacco industry, I think it’s pretty clear: they make products that are harmful to our lives and our health, and therefore our right to life and health. These rights are set down in the Children’s Rights Convention, for example. The World Health Organisation also introduced a Tobacco Convention, which has been ratified by 180 countries. That treaty has lead to three other cases against the Dutch government before these particular charges were pressed. One of them was about the intimate relationship between the tobacco industry and the government. The tobacco convention states that the government, when accepting new policy and legislation, is not allowed to talk to the tobacco industry too much. That case was lost, but afterwards the State Secretary wrote a letter to the stakeholders, saying he would distance himself from the tobacco industry when it came to new policies. Bottom line: whether or not they’ll win this case, it will certainly have an impact on society.’

Leonieke Vermeer

Assistant Professor of Modern History

‘Our health being an important issue in society may seem like a recent development, but it is in fact very old. The exhibition about healthy ageing in the University Museum, made by my colleague Rina Knoeff, showed this as well. One difference is that these days, we expect the government to be responsible for our health, and that we feel they have the right to interfere in people’s lives. I think this juxtaposes two of the most important Dutch traditions: the tradition of the preaching minister telling us what to do on the one hand, and the autonomy of man on the other. This can also be seen in the discussion about the new donor legislation and the concept of completed life: that we have the right to decide and the right to make bad choices.

The Dutch government getting involved in well-being came up during the late nineteenth century, influenced by the left-liberals. The Pierson/Goeman Borgesius government, also known as the government of social justice, was actively involved in social issues. Back then, they focused on housing, hygiene, and the sewerage system. Today, we think it’s only natural that the government plays an important role in these issues. But how far should that influence extend? That depends on people’s political and ideological preferences. In the early nineties, the tobacco industry ran a campaign that said: “Smoking. We’ll figure it out together.” But these days, smokers are practically exiled from society.’


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