Jerusalem Post: tobacco suit

[Robert Weissman <rob@essential.org>]

Jerusalem Post
Author: Larry Derfner
Date: Friday, October 30, 1998
Publication: Magazine Page: 16
Section: Features

'I don't know if cigarette smoking is good for you or bad for you,' says
Arie Ovadia, CEO of Dubek, Israel's cigarette
manufacturer. 'The research is uncertain - some of it points this way,
some points that way.' 

This incredible statement, which represents Dubek's public position over
the decades, is one of the reasons why the company,
along with the major American and British cigarette manufacturers, has
just been slapped with a NIS 7.6 billion lawsuit by
Kupat Holim Clalit, Israel's largest health fund. 

Although Ovadia doesn't know if smoking is really bad for you or not, he
does know one thing: 'If Dubek loses this lawsuit,
we'll be filing for bankruptcy.' 

Joining Dubek as defendants in the suit, filed on September 28 in
Jerusalem District Court, are all the biggies: Phillip Morris,
R.J. Reynolds, Brown and Williamson, British American Tobacco, Liggett &
Myers and Lorillard. Also in the line-up is Zerah
Gehl, CEO of Dubek from 1970 until a few years ago. 

This is the largest civil suit in Israel's history. It is also the first
suit for damages caused by smoking that goes after foreign
tobacco companies. It was inspired by the colossal settlements won
against tobacco companies in the US, in which they
agreed to pay the states of Texas $17.3 billion; Florida $11.3 billion;
Mississippi $3.6 billion; and Minnesota, together with its
largest health fund, $6.5 billion. 

An overall federal settlement, in which the US companies have agreed to
pay one lump sum and thereafter be immune from
further lawsuits, was set at $368 billion, and is now before Congress. 

Clalit's suit, modeled after its American counterparts, argues that the
tobacco companies - both Dubek and the US and British
firms - are responsible for smokers' deaths and health problems because
they deliberately sought to 'enslave' people to
cigarettes and lied to the public and the lawmakers about it for
decades. Clalit claims the NIS 7.6 billion represents the medical
costs incurred in caring for patients who contracted illnesses caused by
smoking between 1990 and 1998. 

Among the charges against the cigarette companies: 

* Making the fraudulent claim that there is 'doubt' as to whether
smoking is harmful to people's health, when they've known
from research going back to the 1950s that smoking is incontrovertibly
deadly; 

* Creating 'an entire industry' for the development of cigarette
additives aimed at making the smokes more and more addictive;

* Stopping research on how to diminish the damage of cigarettes because,
on the advice of lawyers, they feared that this could
be taken as an admission that cigarettes were bad for smokers. 

Dubek, according to the suit, cut off research on a cigarette made of
lettuce leaves instead of tobacco for just this reason - a
charge Ovadia denies. 

The suit also accuses the companies of advertising and marketing
cigarettes with the specific aim of hooking young smokers -
known in the industry as 'starters' - even though, in Israel's case,
this contravenes a 1983 anti- smoking law. The suit claims
the companies deliberately place ad posters near schools and sponsor pop
music festivals to capture the 'starter' market -
another charge that, in the case of Dubek, Ovadia dismisses. 

Sources pressing the suit say they have thousands of pages of documented
evidence against Dubek and the other companies. 

'Somebody provided us with the documents,' is all they will say about
whether Clalit has an 'informer' inside Dubek. Clalit, of
course, has reams of information from the US lawsuits and Congressional
testimony to help its case against the American firms.

Clalit has not yet had any settlement offers, but Ovadia does not rule
out the possibility of a settlement. If the case goes to
court - and there's no way of telling when that might be - the key issue
the judges would have to decide is whether the
companies are liable for the damage to smokers' health, or whether the
responsibility falls on the smokers themselves. 

In the past, it was commonly accepted that smokers had no one to blame
but themselves. After all, no one was forcing them to
smoke. 

But the investigative reports, Congressional inquiries and, finally, the
onslaught of American civil suits, has wiped out this easy
consensus and raised a new claim: If the cigarette companies took
measures to make their product addictive, then they were in
effect forcing people to smoke. If they lied about what they were
putting in their cigarettes, then they defrauded the public and
knowingly manufactured a defective product. And for all this and more,
they must accept the consequences. 

The Israel Cancer Association fully supports this view. 

'The heads of the American tobacco companies testified in Congress that
they knew all along that cigarette smoking was
harmful to people's health,' says Shosh Gan-Noy, the spokeswoman for the
ICA. The 'research' cited by cigarette companies
showing that smoking isn't so bad is 'nothing more than false
advertising. They distort scientific findings, and even pay
scientists to come to the 'right' conclusions,' says Gan-Noy. 

Some 5,000 Israelis die every year, mainly from cancer and heart disease
directly caused by their own smoking, while
another 800 die from the effect of others smoking in their midst
(passive smoking), according to the Health Ministry. 

While smoking in Israel has gone down considerably over the years, 28%
of Israeli adults (18 and older) still smoke,
compared to 24% of American adults, Gan-Noy notes. Among Israeli
adolescents (12 to 17), 11% smoke. A public opinion
survey commissioned last December by the Health Ministry found that 41%
of Israelis think that tobacco companies should be
held financially responsible for health problems caused by smoking,
while 23% thought the tobacco companies and the
government should share responsibility. 

Gan-Noy points out that the heads of the US tobacco companies are
typically not consumers of their own product. Ovadia
says he, too, is a non-smoker, but this is not family policy, rather its
a matter of personal choice: 'I don't smoke but my son
does. My wife doesn't smoke but my mother does,' he notes. 

The Clalit suit, however, is not the first in Israel to take on a
tobacco company. In March, 15 Israelis whose health or whose
family's health had suffered as a result of smoking sued Dubek -
although not the foreign tobacco companies - for NIS 1
million each in Tel Aviv District Court. During the summer Kupat Holim
Maccabi joined the suit, and is asking NIS 1 billion.
Sixty-five additional individuals are now seeking to join the suit as
well. The court is to rule on their participation in February. 

One of the plaintiffs in this suit is Haim Ezri, whose smoking habit
reached up to six packs of Time cigarettes a day until he
developed throat and mouth cancer in 1992. 'The fear of death is what
made me quit,' he says. 

Until then Ezri, a 48-year-old independent trucker from Givat Savyon,
had tried acupuncture, nicotine-laced gum and other
methods in an effort to quit, but couldn't. 

'You want to know how badly a person can get addicted?' he says. 'About
seven or eight years ago, when there was the
cigarette strike, people would buy them on the black market at double
the price. 

'Then everybody ran out, so I went to the Dubek factory one morning in
Bnei Brak. There were about 200 or 300 people
standing at the front gate, demanding to buy cigarettes. So I went up
there - I was a pretty intimidating guy then, I weighed 120
kg, now I weigh 80 - and I just pushed the guard out of the way and
marched up to the management offices. I went in and told
them that if they didn't sell me some cigarettes I was going to cause a
ruckus and they'd be sorry. So they gave me two packs
of 50 each.' The strike ended that day. 

Like so many Israeli men, Ezri started smoking in IDF basic training. 

'Everybody was smoking, so I did too,' he recalls. At that time smoking
was considered 'macho,' he says. 'When I started
30 years ago, nobody knew it was bad for your health,' he claims.
Warnings on Israeli cigarette packets didn't appear until
1983 (18 years after they were legally required to do so in the US). 

Radiation treatments cured his cancer, Ezri says, but not until the
disease cost him his business and, as he says, 'changed [his]
life badly.' Ever since then, he says, he has wanted to sue Dubek, but
it wasn't until the precedent of the US cases that he
thought he had a case. 

Two months ago his case, unfortunately, was strengthened: Ezri suffered
a stroke - another smoking- related disease - that
put him in the hospital for three weeks, and which has permanently taken
away 20% of his field of vision and damaged his
speech. 

The lawsuits raise interesting questions, such as: Why single out the
cigarette companies for damaging people's health with a
product that's addictive? Why not include liquor distilleries, whose
products also enslave, cripple and kill millions? 

To this, Ezri replies that if it is found that such companies
deliberately lace their product with addictive additives, they, too,
should be culpable for the health damage they cause. 

And what about producers of fatty, high-cholesterol, irresistible foods? 

'If a chocolate company is deliberately putting addictive substances in
its chocolate, then they should be sued, too, by people
who might have been hurt by eating too much chocolate,' Ezri says. 

This sort of reasoning is precisely why Ovadia says the Clalit suit is
baseless - because all sorts of industries will be hauled into
court by people who abuse their products. 

'There'll be no end to it,' he says, adding, 'People have to realize
that living in the 20th century has its risks.' 

Another reason the Clalit suit shouldn't stand up, at least as far as
Dubek is concerned, Ovadia continues, is that the company
hasn't done anything underhanded or malicious. He insists Dubek never
laced its cigarettes with addictive substances. 'We use
pure tobacco and nothing else,' he says. 

Asked about the charge that Dubek discontinued research on a lettuce
cigarette, he replies sarcastically, 'We never tried
lettuce, and we never tried carrots either.' 

Ovadia argues that the cigarette industry is a 'legitimate' one that has
the right to advertise and lobby the legislature just like any
other. 'If the Knesset wants to make cigarettes illegal, they can pass a
law, but they haven't,' he notes. 

Yet the lawsuit claims that the cigarette companies' lobbying and
advertising was based on lies - lies to the Knesset about an
existing 'doubt' over the harmful effects of cigarettes, and lies in
their advertising, which promoted the theme of the 'freedom'
that cigarette smoking brings. The main reason for this, according to
anti-smoking activists, is the large amount of state
revenue the Treasury collects on tobacco products. 

The companies paid movie producers to have main characters smoking their
brand. US evidence showed that Phillip Morris
paid 190 films, including 54 aimed mainly at young audiences, to show
characters smoking its brands. Among the films were
Jaws 2, Crocodile Dundee and Grease. Brown and Williamson paid Sylvester
Stallone $500,000 to smoke its brands in five
movies. 

In all, the tobacco companies pitched their marketing campaigns to the
youth, the Clalit suit claims. 'The defendants played up
the advertising pitch, which they repeated hundreds of times, that
cigarette smoking is a kind of 'rebellion,' and represents
'independence' in order to attract youth to start smoking,' the suit
reads. 

It continues: 'As soon as it was clear to the defendants that smoking is
indeed so life threatening, it became particularly
important to them to conscript new slaves to cigarettes: young people.
Creating these 'disputes' and doubts [over smoking's
harmfulness] helped the defendants from the 1950s on...to continue
fostering youth addiction to smoking, during adolescence
and during their army service. Indeed...the defendants focused special
efforts on youth-targeted advertising, even though this
contradicted the laws and regulations enacted, and they successfully
created entire generations of addicts to their product - an
activity the defendants remain engaged in to this very day.' 

During the summer, a Channel 2 documentary featured David Haddad, former
head of marketing for Dubek, saying that the
company had an explicit marketing policy to target youth, and never
showed any concern about the health damages involved. 

Ovadia, however, maintains: 'The charges in the lawsuit are false, there
isn't a shred of evidence to back them up, and anybody
who thinks he has 'inside information' has nothing because it simply
doesn't exist.' 

He insists that Dubek's marketing efforts aren't aimed at getting
non-smokers to start smoking, but rather to win greater
'brand identification' among people who already smoke - in other words,
to get smokers to switch to Dubek brands. 

The ICA's Gan-Noy, however, doesn't believe it. 'They have to keep
creating new smokers to take the place of all the old
ones who either quit or die,' she says. 

As for advertising in films and other forms of indirect advertising,
Ovadia says Dubek does less and less of it. 'Sometimes some
poor young filmmaker will come to me and ask for $2,000 to help finance
his project, and he'll give Dubek a credit. I tell you,
[the opposition to cigarette advertising] gives me a good excuse to tell
him no. 

'Recently one of the municipalities asked us to sponsor a youth sports
league. We donated sports equipment bags with the
name 'Dubek' on them - no mention of cigarettes, just 'Dubek' - and the
parents raised such a fuss. 'How dare we use kids to
advertise cigarettes?' But do you think they returned the bags? No. So
they had it both ways - they got the satisfaction of
yelling at us, and they also received free equipment bags,' he says. 

Although laws were passed to put limits on the cigarette industry, the
industry, according to the lawsuit, consistently did
everything in its power to get around the laws - for instance, making
the warning on the label as small and unnoticeable as
possible. 

The marketing of cigarettes as 'low-tar,' 'light' and 'ultra-light'
sought to give the impression that the cigarettes were relatively
harmless, when in fact, the lawsuit contends: 'The defendants put into
these cigarettes different substances so their addictive
effect would not be diminished. For instance, tiny air holes were
included in the filters, so that when the cigarettes were tested
in the US, the air coming in through these holes diminished the level of
[toxic elements] being taken in. Yet in fact, the
defendants placed the air holes so the smoker's fingers would cover them
up when smoking.' 

To this and other charges, Ovadia says that while he doesn't know what
the giant foreign companies did, Dubek never
engaged in such practices. 

'Putting Dubek in the same pot with the big tobacco companies is wrong.
We're a tiny fraction of their size, we never had the
money or capability for the sorts of research and experiments they were
able to carry out.' 

The suit claims that the foreign companies had 'gentleman's agreements'
with one another to further their efforts to enslave
smokers. Ovadia counters, 'To think that the big tobacco companies would
share their secrets with Dubek is a little ludicrous.' 

He says Dubek has 54% of the Israeli cigarette market. However, sources
in the Maccabi suit say they decided to target
Dubek exclusively because the damages they are suing for resulted from
illnesses which likely began developing before 1990,
when import taxes on foreign cigarettes were so high that over 90%
Israeli smokers used Dubek brands. 

The Clalit suit also points out that American tobacco companies carried
out a kind of Third World dumping policy toward
Israel between 1965 and 1983: 'Israel was treated by the defendants as
an inferior country, whose citizens, in their eyes, were
unworthy of being warned...about smoking and its dangers; when a pack of
cigarettes was sold in the US or England - it
came with a warning. When the pack was sold in Israel, the warning
'disappeared,' ' the suit notes. 

Ovadia points out that not all the US lawsuits against the tobacco
companies were victorious. One of Ovadia's nemeses
acknowledges this, saying that recent US cases have set precedents that
weaken the individuals' claims against the companies,
finding instead that individuals who'd decided to smoke had 'knowingly
taken the risk upon themselves.' 

At the same time, however, recent US cases have strengthened the cases
of health insurers suing to recover expenses related
to smoking, because they did not knowingly assume the health risk
involved with cigarettes. 

The Clalit suit is hugely ambitious. It asks the court not only to award
Clalit NIS 7.6 billion, but also to cripple the tobacco
companies in ways that could prevent them from legally doing business. 

The request, if granted, would prohibit the companies from introducing
any addictive additives to cigarettes; stop
advertisements that encourage youth to smoke or which put smoking in a
positive light and prevent the use of 'hidden
advertising' of cigarettes in films, TV or public events. It would also
stop the companies from claiming there is any 'doubt' or
'dispute' about the ill effects of smoking; require them to take out
full-page newspaper and billboard ads detailing the fatal and
harmful effects of cigarettes and make them own up publicly to having
maliciously deceived the public for decades past. 

'With their cigarettes, the defendants developed a product that is
defective by any legal standard that applies to defective
products,' the suit claims. 'They themselves knew that the product they
manufacture, market and sell causes and will continue
to cause death and horrible suffering to masses of human beings - even
fetuses in the womb - as well as severe and lingering
diseases, some of which are incurable, and damage of a magnitude
unprecedented in human history.' 

Noting that some of the US settlements allow the tobacco companies to
pay off the damages by raising cigarette prices, putting
the extra money into a health fund for cigarette-related diseases,
Ovadia says: 'I doubt that these settlements will cost the
American companies any money. The cost will likely be passed on to the
consumer.' 

Asked how he feels running a company dedicated to selling Israelis more
and more cigarettes, Ovadia replies: 'I don't feel that
I'm doing anything wrong. As long as there is a demand for cigarettes,
it will be met. If Dubek stops making cigarettes, then
somebody else will make them. And who's to say their cigarettes will be
any better for people than ours?' 

It's an argument of sorts. But if Israel imitates America on this issue,
it may not stand up in court. 

                       Copyright © The Jerusalem Post



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