Supreme Court finds in favor of big tobacco, stressing smokers’ free will

Posted on : 2014-04-11 13:34 KST Modified on : 2014-04-11 13:34 KST
Cancer victims now waiting for conclusive proof of causal link between smoking and illness

By Noh Hyun-woong, staff reporter and Kim Yang-joong, medical correspondent

“We the court find Big Tobacco not guilty.”

The fifteen-year battle of South Korea’s first cigarette lawsuit came to an end on Apr. 10 with a Supreme Court ruling awarding victory to the state and KT&G, the country’s biggest tobacco company. The question of which way the court would go drew major attention in a country with an estimated 10 million smokers, but the final outcome was lopsided.

The ruling brought an elated reaction from KT&G, which emerged victorious in a battle that put its very future at stake.

“We respect the court’s decision, which was prudent and thoughtful,” the tobacco company said.

The reaction from the plaintiffs was very different, with charges that the country’s tobacco company was let off scot-free.

The Supreme Court did acknowledge that smoking was harmful, and recognized its connection to lung cancer. But in ruling for the tobacco company, it also said that smoking was an exercise of personal freedom and noted that it was nearly impossible to prove a direct causal link to individual cases of cancer.

To begin with, it concluded that there was no criminality in the design of tobacco company products because smoking, by its nature, involves inhaling harmful nicotine and tar.

“Consumers inhale because they want the pharmacological effects of nicotine,” the court said. “These effects cannot be obtained if nicotine is eliminated.” The argument is that tobacco companies cannot be held responsible for their design because their products would have a negative effect in any situation that did not involve eliminating inherent characteristics of tobacco.

The ruling also stressed the personal freedoms of smokers - in the process dismissing the plaintiffs’ claims that the tobacco company did not do enough to warn them of the dangers.

“The debate over the potential health dangers and effects of tobacco has existed since it was introduced [in Korea] in the 1600s,” the court said.

“Whether or not to continue smoking is a matter of choice according to free will,” it added.

The court also noted “cases where carcinogenic materials are also present in non-processed foods” in addition to cigarettes.

A crucial factor in the ruling was the decision not to recognize a direct causal link between smoking and individual cases of cancer. The court did appear to accept research findings showing a link between smoking and lung cancer, with a sentence in its ruling using the phrase “even if one may recognize an epidemiological link between smoking and lung cancer.”

But it did not extend the reasoning to causal relationships at the individual level. While the plaintiffs, all smokers, contracts lung or laryngeal cancer, the court’s position was that some other factors, including family history, may have had an influence on their contracting the disease.

A previous appellate court ruling went against the plaintiffs, but it did recognize a causal link between smoking and the lung cancer suffered by four plaintiffs. The Supreme Court ruling made separate determinations on the causal relationship between smoking and the diseases of the same four people. But the rather exacting standards it imposed for establishing a causal relationship between smoking and cancer put it a step behind the appellate court, at least from the standpoint of observers hoping to see the tobacco companies held accountable.

The court also denied any causal link between smoking and certain forms of lung and laryngeal cancer that are seen as having a particularly weak connection to tobacco, including non-small cell lung carcinoma and bronchioloalveolar cell carcinoma.

The ruling, which comes after a 15-year legal battle, is expected to have major repercussions. To begin with, it will affect a cigarette lawsuit for up to 300 billion won (US$288.3 million) currently being prepared by the National Health Insurance Service (NHIS). The NHIS plans to file suit against both KT&G and foreign cigarette makers, citing more than 1.7 trillion won (US$1.6 billion) per year in medical treatment costs due to smoking. But with the Supreme Court recognizing a general link between cigarettes and lung or laryngeal cancer while denying any responsibility for the products made by cigarette companies, the future for the litigation looks bleak.

At the moment, some change in precedent appears to be needed before tobacco companies can be held accountable for diseases resulting from smoking. In South Korea, the victims may have to wait for some new scientific evidence that conclusively shows causation in cases of individual diseases.

 

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