THIS IS the cancer ward of a hospital and a patient is lying on his bed. A few months ago, his doctor diagnosed him with lung cancer, as he has been a heavy smoker for over 30 years. All of a sudden, a man wearing a suit enters the sickroom – he is the lawyer of the patient. “In this lawsuit,” the lawyer claims “I will present the detrimental effects of smoking and illegal acts of tobacco companies as the main evidence for arguing that people who have been smoking for years have a higher chance of getting tobacco-related illnesses.” Suddenly, another patient who was lying on the next bed says, “Hey, I also was a heavy smoker but got diagnosed with stomach cancer, which has nothing to do with smoking.” By hearing the patient’s words, the lawyer soon realized that not all diseases are directly caused by smoking, and this fact could, eventually, serve as a lack of evidence in his lawsuit. This is a short story underlying the commonly expected situation when a tobacco lawsuit is taken to court. Indeed, where is the end of this story heading?
Public institutions instead of the people
On Jan. 24, 2014, the National Health Insurance Service (NHIS) decided to prepare compensation suits against the domestic tobacco industry, so called “Tobacco Case.” According to NHIS, since tobacco-related illnesses such as lung cancer, laryngeal cancer, and esophageal cancer increased sharply because of smoking and NHIS has had to pay for extra medical expenses, tobacco companies have a moral duty to compensate for these financial losses. In Korea, four tobacco cases were taken to court so far and the plaintiffs were all patients with tobacco-related diseases and their families, while the accused were tobacco companies. However, there are yet no individual plaintiffs who have won a suit against tobacco companies. That is because there has, so far, been no concrete data to prove the illegal acts of tobacco companies like the manipulation of nicotine contents, even though the court had partly admitted the connection between smoking and cancer.
In this respect, it is unprecedented that the NHIS, which is in charge of insurance services related to such diseases and injuries, decided to directly take legal action against tobacco companies. Moreover, the Korean Association of Smoking and Health (KASH), an antismoking group, added that NHIS, a government agency representing the whole nation, is qualified to file a lawsuit to protect the people from the harmfulness of smoking. However, the Korean Smoker’s Association insisted that filing a lawsuit is the extreme way of resolving the problem and it only triggers unnecessary social conflicts. Since the government agency comes to the forefront of the lawsuit, it is expected that the case will follow a pattern different from those of the past, where the court went against the plaintiffs who sued tobacco makers.
As the individual plaintiffs lost their cases because of insufficient evidence, the outcome of this lawsuit, which was filed by NHIS on Jan. 2014, depends on whether there is sufficient evidence to prove direct correlation between smoking and diseases and illegal actions taken by tobacco companies. If illegal acts like nicotine manipulation effected by additives and covering up information about the side effect of smoking were not admitted, a lawsuit would be entirely meaningless, though the direct correlation between smoking and illnesses may be logically proved. On Feb., 15, 2011, the Seoul High Court ruled that there were no illegal acts involved in the process of manufacturing and selling cigarettes and thus they rejected the appeal of 26 plaintiffs, including lung cancer patients. In turn, NHIS insisted that the plaintiffs lost the case in 2011 because there were no enough evidence to prove tobacco companies’ illegal acts and added that that the court partly admitted the causal relationship between smoking and diseases. Official statistical data collated by NHIS and the research team run by Ji Seon-ha (Prof., The Graduate School of Public Health, Yonsei Univ.) suggest that the financial losses for medical services resulted by 35 tobacco-related illnesses reach up to $1.7 billion a year and smokers have a 6.5 times greater risk of getting cancer than non-smokers. These statistics, which are obtained by closely monitoring more than 1.3 million people for 19 years, are the largest worldwide and they can serve as compelling evidence for the correlation between smoking and illnesses. Furthermore, according to a journal published by the Korean Society of Health Information and Health Statistics (KOSHIS) on December, 2013, tobacco-related deaths caused by both firsthand and secondhand smoking account for more than 20% of all deaths. In other words, one in five Koreans becomes a victim to smoking every year.
In response, the Korea Smoker’s Association (KSA) insists that the disease is triggered by a combination of an individual’s life habits, occupation, genetic and environmental factors, and thus, there is a gap in the logic of arguing that smoking is the only cause of tobacco-related diseases. It is also argued that it is impossible to analyze every case included in the statistics and that it is doubtful whether NHIS files a suit for the purpose of solving their financial difficulties. It added that NHIS should learn from the failure of other lawsuits filed by several governments including Japan, France and Germany, where its courts ruled in favor of tobacco companies. Yet, the number of whistle blowers – who formerly held high positions in tobacco companies - is on the rise and they are providing information like the fact that tobacco companies add more than 600 artificial additives to reinforce the addiction to nicotine.
After the lawsuit
Nobody knows which side the court will take this time. Yet there is no doubt that it will be a long battle that might become the source of endless controversies. If the accused - the tobacco companies - win the case, public opinions, such as that, smokers have the free will to smoke and are responsible for its results, will gain support in the eyes of the public. In this kind of circumstances, there is a high possibility that the current policy on tobacco regulations will remain the same and health insurance coverage for tobacco-related diseases will be narrowed. An anonymous smoker said that “we smokers also recognize that smoking can be harmful to our health. Supporting the right of non-smokers’ not to smoke without respecting our right to smoke is selfish and they do not have the right to criticize our personal preferences. "
However, if the case is decided in favor of NHIS, the opposite will most likely happen. In this case, legal regulations for tobacco – regarding tobacco manufacture, sales, components and warnings, for instance – will greatly be reinforced. Also the lawsuit will be a proper opportunity to publicize the dangers of cigarettes, since it contains a number of harmful substances. Furthermore, it may spread anti-smoking campaigns nationwide with the effect of informing the harmfulness of smoking. Nam Eun-kyeong (Team manager, Social policy team, Citizens’ Coalition for Economic Justice) said that “making public judgment for the harmfulness of smoking is a leading trend globally and flexibility to move on with the times is needed.” It should be noted that tobacco companies agreed to compensate for tobacco-related damages with $206 billion in a lawsuit filed by 49 U.S. states in 1998. However, according to Song Oak-ryeol (Prof., The Graduate School of Law, Seoul National Univ.), there is no precedent for admitting the right of individuals to claim for tobacco-related damages and it is also impossible to prove the correlations of millions of individuals’ diseases with smoking. Yet, since the number of cases which public institutions succeeded in winning against the tobacco companies is increasing worldwide, whether the Korean court will join this global “trend” or whether it will cling to its original position is drawing the people’s attention.
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From several years ago, there has been an anti-smoking wave in Korea and laws designating certain public areas as smoke free were, for instance, enacted. Smoking seems to be no longer a symbol of toughness and is gradually estranged from representing macho men. Tobacco is losing ground following such non-smoking trends and smokers, in turn, strive to protect their own rights to enjoy smoking. The tobacco lawsuit may be an extension of the invisible tug-of-war between smokers and non-smokers. But one thing is for sure: even though it is a burdensome issue and we are yet far from the end of this battle, the tobacco lawsuit is an unavoidable issue that we are facing. Internally unresolved issues will bring about intensifying controversy in the long run. Perhaps, it is time to think about what is the most effective way of ultimately seeking for common good rather than private interests. The debate over tobacco cannot be left unsaid any longer.