Tobacco or Health — Bénédicte Ficq about ‘The Dutch Case’

21 februari 2020

This week in Berlin the 8th European Conference on Tobacco or Health took place. Lawyer Bénédicte Ficq (second from the right in the picture above) gave a speech on the Dutch report against the tobacco industry.

By Bénédicte Ficq

Three years ago a tantalizing question was put to me, to which I had no immediate answer. Whether I felt there was a chance of having tobacco manufacturers who marketed their products in the Netherlands prosecuted for a criminal offence. Lung cancer patient Anne Marie van Veen and lung doctor Wanda de Kanter, a member of the board of the Youth Smoking Prevention Foundation, came to my office to ask me that question. I know everything about criminal law, but I also know that based on current laws and regulations, the sale of cigarettes is permitted, so it is far from obvious that this case would fall within the scope of the criminal law. Furthermore, no one obliges the smoker to smoke; he or she chooses to do so — an important argument against instituting criminal proceedings.

I discussed the case with colleagues, listing all the arguments for and against, our minds open to possibilities rather than impossibilities, after which we eventually came to the conclusion that a prosecution might have a chance of success, based on two arguments. I shall try to make clear to you why we ultimately arrived at that conclusion.

Fake measurements

The first argument was that tobacco manufacturers sidestep the laws and regulations by putting unmeasurable products on the market, despite the fact that the law states that they must contain no more than a maximum amount of poison. This fraud has been going on for decades and is not regarded as fraud by governments. The fake measurements are simply accepted.

Unthinkable and in our eyes unacceptable. How are the measurements made? Holes are introduced into the filter, precisely at the place where smokers put their fingers when they hold a cigarette. When the machines used by the RIVM (the institute that checks products on the Dutch market) test the cigarettes for harmful substances, the holes remain open so that air is sucked in. This air reduces the measured amounts of harmful substances. When smokers smoke they put their fingers across the holes in the filter, so that no dilution of the smoke takes place. Smokers inhale undiluted smoke, so they ingest more poison. The officially measured product on the market is therefore a product that in practice delivers far higher amounts of harmful substances than the legislators intended to permit.

Addictive substances

The second argument was that the addictive substances added to cigarettes push free will aside. It’s often said that people smoke of their own free will; they know cigarettes are addictive and yet they light up. This might be an obstacle to prosecution, but there are countless arguments to the contrary. Because how can we talk about free will when the tobacco industry does all it can to subvert free will?

I’m an ex-smoker myself, addicted for almost thirty years, and I always thought cigarettes contained ‘only’ nicotine, tar and carbon monoxide. That’s what it says on the packet, after all. But they contain a lot more than that. There are flavours to ensure the smoker enjoys the taste of the smoke. Sugars are added that, after combustion and inhalation, work rather like an antidepressant. Substances are added that suppress the urge to cough. All this is intended to bypass the body’s defence mechanisms against smoke inhalation. Coughing, nausea or vomiting as a natural reaction to inhaling smoke no longer occur because of the addition of these substances.

The tobacco industry has plainly introduced all kinds of additives into cigarettes to make the smoke inhalable. Without them the epidemic of smoking could never have occurred, in fact there would have been no smokers at a{I. The smoke would have been impossible to inhale: too harsh, too hot, too foul.

Nicotine kick

Tobacco manufacturers have done absolutely everything they can to make smoke, as a vehicle, attractive and inhalable, the one and only goal being to get nicotine — the quintessential addictive substance — to the brain as quickly as possible. Because as soon as that happens, changes take place in the brain, causing addiction. The cigarette companies are aware of this, and they like it. The manufacturer is aiming to give the consumer a fast nicotine kick, and inhalation is the quickest route to that goal. The rapid kick causes a Pavlovian reaction in the brain when smoking takes place during innocent behaviours such as coffee drinking, eating, sex, dealing with discomfort and so on. Drinking a cup of coffee becomes only truly enjoyable if the smoking kick is added.

This artfulness of the tobacco industry in consciously and deliberately making its product addictive is one of the most important arguments for wanting to have manufacturers prosecuted under the criminal law. And in all honesty, why should the practitioner of alternative medicine who talks a cancer patient out of consulting a mainstream doctor be subject to criminal sanctions and not this immoral industry? Why should a cocaine dealer who sells contaminated cocaine that causes dozens of deaths be prosecuted but not the unscrupulous cigarette manufacturer? Simply because cocaine is on a list of banned substances?

Can the cigarette companies really get away with arguments such as: you choose to smoke and we stick to the rules? No, we argued in our submission, you don’t stick to the rules, you sidestep them and no, smokers don’t choose to smoke, you deliberately cause them to become addicted, so that they have little choice.

Murder and manslaughter

This whole interplay of manipulations — the addition of ingredients to the cigarette, the marketing of the product, the normalization of smoking — became the basis of our accusation of engagement in criminal activity by the tobacco industry. We have accused the industry of knowingly and wittingly, together and in collaboration, making people addicted to its product, which inevitably results in death and serious physical injury.

In our submission to the public prosecutor we accused the industry of murder, manslaughter, inflicting grievous bodily harm, deliberately damaging health and committing forgery, as well as various economic offences.

Unique test case

Anne Marie van Veen and the Foundation were our first two clients. We decided to underpin our accusation concerning these criminal acts with detailed scientific research linked to legal reasoning under criminal law, all with a view to facilitating the Public Prosecutor’s Office so that the decision to prosecute might more easily betaken by the Dutch public prosecution service. For the clients it was an important and unique test case. Nowhere in the world had a criminal case been brought against the tobacco industry. Civil lawsuits have of course quite often been filed against the tobacco industry, but this time it was confronted with the possibility of a criminal prosecution for marketing a manipulated product that was deliberately made addictive.

As lawyers we assumed that the likelihood of action by the public prosecutor would be greater if there was plenty of public support for the case. We also realized that publicity would be in important instrument in securing such support. So from the start we tried to make the circle of people on whose behalf we brought the case as wide as possible. More on this later.

Revenue model

Back to our first client. Anne Marie van Veen was about forty years old when she was diagnosed with lung cancer. She was the mother of three young children. She was still smoking when she received her diagnosis and was so addicted that she continued to smoke even during her first round of chemotherapy. Her distress and the knowledge that she would probably not see her children grow up made her extremely angry. She was enraged by her powerlessness when she realized that her illness could have been avoided had she not started smoking at the age of fourteen. She was aware that she was one of the many victims of the machinations of an unscrupulous tobacco industry that had made countless other young people addicted to cigarettes besides herself and that had only one goal: to make money, a great deal of money, in complete indifference to all the suffering its revenue model caused.

This realization was for her the main reason for starting a unique prosecution and for doing everything possible to reset consciousness-raising in relation to smoking. The smoker is not weak, the smoker is addicted. The smoker is a victim of manipulated, apparently innocent drugs called cigarettes, which are legally distributed by ruthless criminals in suits.

Our message was: smokers, don’t any longer accept the claptrap of the tobacco producer who says, ‘We obey the law and we don’t compel you to start smoking.’ Don’t allow anyone any longer to use this as a justification for continuing to produce an extremely addictive product. What they are doing is criminal.

385 deaths a week

In the Netherlands alone, 20,000 people a year die as a result of smoking. That’s 385 a week. And that’s quite apart from all the illnesses caused. Just imagine: a creative manufacturer of a new product tries to obtain a permit for a new toy that kills 385 people a week. The manufacturer knows the harm it’s doing, yet still tries to put the product on the market. Is it conceivable that this creative manufacturer would be given permission? Can we imagine that no criminal charges would be brought against someone who puts such a deadly product on the market? And what if the product is targeted at adolescents, who are tempted by means of all sorts of marketing tricks to start using it?

Eighty to ninety per cent of all adult tobacco addicts started smoking around the time they were fourteen years old. True, you have to be eighteen or older to buy cigarettes, but nothing could be easier than getting hold of them. They’re on sale on every street corner, in every supermarket and in almost every shop. In supermarkets they’re shelved at eye level. Tobacco manufacturers know this. They rely on it. They even pay for it: the more visibly the product is displayed to the potential client in the shop, the greater the reward for the cigarette companies.

The manufacturer also knows that the product will reach the target group, will mainly reach the target group, which is not yet actually allowed to buy it. It is this target group — the replacement smoker — that’s most important to the tobacco industry.

The adolescent brain

Cigarette manufacturers know everything about the young brain, the brain of a fourteenyear-old, the immature, experimenting adolescent brain that is carefree and therefore not at all concerned about health effects that make their appearance at the age of thirty or forty. You’re elderly by then. The adolescent thinks only of the here and now. Of trying out things that are not allowed.

The tobacco manufacturer knows that graphic warnings on the packets are not seen by adolescents, who ignore the gruesome pictures. Cigarette manufacturers know that almost all long-term addicts began in adolescence, at an age at which they were incapable of evaluating the consequences, and that they became addicted within a week. Tobacco manufacturers focuses all their expertise on reaching this impressionable target group.

Long-term dangers

The tobacco industry also knows that the human brain is unable to recognize long-term dangers for what they are. Tests have been carried out using an MRI scanner. If you ask people whether they are willing to be put into a lion’s cage at the zoo, none of them will say yes. And nobody wants to try a product that they know will kill them within three weeks. But the brain responds very differently when the danger arises only in the longer term. If you hear that two out of three people die from smoking, that it can leave you with all kinds of serious, debilitating diseases but only after another ten, fifteen or twenty years, then the brain, according to MRI studies, reacts as if the person concerned is someone else. You then decide accordingly. You never really worry about others, which means there’s little or no restraint on behaviour that might cause damage. This response can also be seen in relation to worries about climate change. Who cares if the planet is going to be destroyed within the foreseeable future?

The tobacco industry is lucky that our brains work this way. As it well knows. Is it so very ridiculous, then, to try to convince the Public Prosecutor’s Office that smoking is anything but a free choice?

Free to quit smoking

Cigarette manufacturers try to parry the argument that addiction causes a lack of free will with the argument that plenty of people give up smoking. They claim that by not stopping, the smoker is choosing every day to carryon.

I smoked for thirty years and all that time I denied I was addicted. It was only when I had children that I managed to stop. The withdrawals were terrible. I was engaged in a battle with myself for years, and it had nothing to do with willpower. Some people are immensely powerful and energetic and have a strongly developed will, but their brains are so affected by the addiction that they simply cannot stop.

Scientific studies demonstrate what addiction does to the brain. You’re not weak, you’re addicted. Your brain is addicted. The addicted brain comes up with excuses, gives into the buying of a pack of cigarettes, then to the lighting of them. After just one week of smoking you no longer have any free will. It’s suppressed, gone.

Product placement

The tobacco industry has always used the concept of freedom to defend itself. The Marlboro man riding his horse, high on a mountain, encapsulated a sense of freedom. The fact that three Marlboro men have already died of lung cancer is a mere detail to the tobacco industry. And just look at films, at Netflix series: why do so many of the central characters smoke? That’s right, of course, it’s surreptitious, smart product placement by the tobacco industry. For decades the tobacco industry has been trying to make us believe that if we smoke we are free. But freedom is a relative concept. You must of course be allowed to be free in what you think, in what you say, in what you want, in who you are. But how free are you if you smoke and want to stop smoking but fail time and again? I’ve never met a smoker who wanted to be addicted. It costs a lot of money, it costs you your health, you have to go outside to smoke: everybody wants to stop, but only a few succeed. How free are you then?

Brilliant addictive

People are often unaware that addiction to tobacco is far harder to beat than, for example, addiction to alcohol. Furthermore, alcohol addiction is far less socially acceptable, and that can actually be your salvation. Here again, the tobacco industry is lucky: cigarettes don’t make you drunk. Unfortunately. Because people who turn up at work drunk will be spoken to by their employer and helped to beat their addiction. Not the smoker. As long people close by aren’t troubled by the smoke. In that sense tobacco is a brilliant addictive substance. Because it doesn’t change you. Because it doesn’t intoxicate you. Because you can carryon functioning perfectly well.

It’s an addiction the seriousness of which is underestimated because of a lack of knowledge of how addictive the product is, and how dangerous. People know it can give you lung cancer, but they forget that it can cause blindness or impotence, that it can make dementia occur sooner, that it can give you diabetes. It damages all your organs, harms your DNA — all because of the poison in a cigarette.

The tobacco industry knows this perfectly well, and yet, and yet — it quite deliberately makes its cigarettes addictive. In the knowledge that of every three users, two will die and very many will become ill, it takes advice from all kinds of experts on how to make cigarettes as tasty, addictive and easy to smoke as possible.

Bandwagon effect

The initial publicity resulting from the accusations by the sick young mother caused a huge stir in the Netherlands. That was of course the intention. The idea was to increase the power of the accusation and the chances of success in the case by means of the bandwagon effect. As time went on, countless social organizations joined us. The criminal accusation by a famous cancer hospital in Amsterdam, the Antoni van Leeuwenhoek Hospital, caused an immense reaction. Teaching hospitals, schools, the Amsterdam municipality, smokers, ex-smokers, dentists, physiotherapists, nurses, the Dutch Cancer Society, lung specialists, children’s hospitals, nurses, psychiatric hospitals and so on joined in and reported the crime to the Public Prosecutor’s Office. They argued that the aims they pursued in their professional capacity were incompatible with leaving tobacco manufacturers to carry on as they were. They too believed there was a need for intervention under the criminal law. They too believed that other procedures were too laborious, too protracted and too easily bought off. That it was time to label the activities of the tobacco manufacturers criminal acts.

Manufacturing an addictive product from which 325 Dutch people a week die and many times that number of Dutch people become ill must, in the view of all these accusers, lead to criminal prosecution. Let the judge decide whether the things tobacco manufacturers do deserve punishment under the criminal law or not.

As simple as frustrating

We fought, we were confronted with the refusal of the public prosecutor to prosecute, we appealed against that decision in the Court of Appeal in The Hague and unfortunately we had to accept the decision of the court that the public prosecutor was not obliged to prosecute.

In coming to that decision, the judge adhered to an argument that is as simple as it is frustrating. Namely that the government has introduced regulations, based on European regulations, and that therefore, as long as the tobacco producers obey those European rules, it is not the judge’s job to order the Public Prosecutor’s Office to begin criminal proceedings. The sidestepping of the rules regarding methods of measuring cigarette emissions by the manipulation of cigarette filters (by making small holes in them) was countered by the judge with the argument that when the method of measurement was introduced, the holes in the filter were already known about.

This method of measurement is now being challenged in Europe in a different lawsuit, by one of the earliest participants in the criminal case, the Youth Smoking Prevention Foundation. Very recently, the Administrative Court in Rotterdam has passed the case on to the European Court, so that the issue can be considered there.

Personal defeat

The failure to secure criminal prosecution in the Netherlands was above all a personal defeat for the sick pioneers who brought the case. They carried on fighting all through the years we worked on it. They are now dead. Their deaths were avoidable and must not be forgotten.

We have made a contribution to the unmasking of the tobacco industry and I hope that their exposure continues and that those present here might be inspired to copy our efforts. I hope there will be a domino effect and that people and organizations in other countries will follow our example in reporting the tobacco industry for having committed a crime. One day the tobacco industry will be exposed as a criminal organization, which knowingly makes young people addicted to its deadly and sickening wares.

Op TabakNee staat de Nederlandse versie van deze voordracht.

Bénédicte Ficq | law suit | tobacco