THE time is ripe for Australia to give the tobacco industry another black eye, say Australian tobacco control experts, who are encouraging state and federal governments to sue for the recovery of health care costs.
In 2008, Collins and Lapsley estimated that smoking cost the Australian health care system, directly and indirectly, around $31.5 billion annually. According to some experts, that cost is now closer to $50 billion a year.
“We think [the $31.5 billion figure] is outdated,” Dr Ross MacKenzie, a lecturer in Health Studies at Macquarie University, told MJA InSight. “Given the rising costs of health care, the figure of $50 billion annually has been bandied about.”
The direct costs of caring for someone ill with a smoking-related disease is one thing, says Dr MacKenzie, but the indirect costs must also be considered.
“What about the impacts on households if the key income earner dies – childcare costs, perhaps the need for relocation, increased transport costs, home help – people who die from smoking-related cancers, for instance, don’t die quickly in many cases.”
Australia leads the world in tobacco control measures, but around 2.5 million of us still smoke, and 15 000 of us are dying every year from diseases that are “completely preventable”, according to Dr MacKenzie.
He is the co-author of a Perspective published in the MJA calling on state and federal governments to consider suing the tobacco industry for smoking’s imposition on our health care system.
“It’s a very good time to do it,” Dr MacKenzie said.
“The industry is slightly on the defensive in some ways because they’ve had a few legal setbacks internationally. It has lost all of its plain packaging challenges [in Australia, the UK, Ireland and France] and it lost a decision in the European Court of Justice recently.”
Australia is already regarded by the tobacco industry as “the darkest market in the world” and following the precedent-setting plain packaging legislation that came into effect in 2011, it was once again time to take up the battle, the authors wrote.
Speaking in an exclusive podcast with MJA InSight, Dr MacKenzie said that complacency was not something Australia could afford.
“You can have a really big win, as Australia did with plain packaging, but afterwards not only is there exhaustion among the tobacco control community and affiliated government workers, there’s often a policy inertia,” he said.
“There’s a lull, a sense that that’s been done. But the tobacco industry never takes that attitude. They’re incredibly sophisticated and aggressive.
“We can’t really let up. We must maintain the momentum if we want to get this figure [of 15 000 people dying each year from smoking-related diseases] down.”
Canada provides a good model for Australia to follow, the Perspective authors wrote.
“Lawsuits recently filed by Canadian provinces may provide insights and lessons more relevant to Australia, as our legal system is more similar to Canada’s … British Columbia’s tobacco-specific cost recovery legislation established a precedent that changed the legal landscape.
“The remaining provinces have subsequently filed lawsuits to recover billions of dollars in compensation; Ontario and Quebec, for instance, are seeking CAD$50 billion and CAD$60 billion in damages respectively.”
There were lessons to be learnt from Canada that could make the litigation pathway faster and less obstacle-ridden for Australia, Dr MacKenzie said.
“The tobacco industry challenged the British Columbia lawsuit immediately because they said [the lawsuit] was unconstitutional. British Columbia had to then write legislation to make it constitutional, which the Supreme Court then upheld.
“So, the first step here should be to put in place legislation that guarantees that [suing the tobacco company] is a constitutional act.”
A second critical issue was making sure that the right people were being sued, Dr MacKenzie and his colleagues wrote.
“A major recovery in Australian litigation could potentially push an Australian subsidiary of a global cigarette manufacturer into bankruptcy, depriving plaintiffs of the opportunity to recover full damages,” they wrote.
“This potential risk of bankruptcy would make it imperative that the parent companies remain as defendants in legal actions in order to satisfy the large damage awards necessary to provide just financial compensation.”
So, given the costs and time involved – British Columbia is coming to the end of a 17-year process to recover health care costs – is litigation worth it?
“The reality is that the Australian Government has paid out billions of dollars in health care costs directly associated with smoking,” Dr MacKenzie told MJA InSight.
“If we don’t sue them, we’re letting the tobacco industry get away with something they knowingly created and generated.
“It would be great to stamp on people the idea that this industry is completely corrupt and has knowingly created this product and made billions of dollars, even in the small Australian market.
“This is a way of dealing retrospectively with tobacco industry wrongdoing.
“It would be complex, it would be difficult … but that’s simply the reality of dealing with a much better resourced opponent.
“The industry will do everything they can to delay and test the resolve of the parties going after the money, but ultimately it does work.
“It may take a long time, but it’s worth doing. We should make [the tobacco industry] dislike us even more.”
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