No further investigation into the Tobacco Industry
The Dutch Public Prosecution Service (hereafter: DPPS) has concluded that it is not possible to bring a successful prosecution against the tobacco industry under the current legal and regulatory frameworks. For this reason, the DPPS will not continue to investigate the case. Smoking is deadly and the design of cigarettes does add to this but according to the DPPS, the tobacco manufacturers have not acted in violation of either the law or the current regulatory framework.
On 29 September 2016, defence lawyer Ms. Bénédicte Ficq filed a complaint against the four largest tobacco manufacturers in the Netherlands on behalf of the Dutch Youth Smoking Prevention Foundation (Dutch: Stichting Rookpreventie) and two ex-smokers. Subsequently, numerous other (legal) persons added themselves to the complaint in 2017 and 2018, including various hospitals and addiction clinics. Additionally, parts of the initial complaint were supplemented. According to the complainants, cigarettes are ‘deadly by design’: purposely designed, manipulated & produced under the proviso that tobacco addiction commences rapidly and then continues. The complainants state that this restricts the free will of the user. In the complaint, the tobacco manufacturers are, in short, guilty of attempted manslaughter and/or murder, attempted severe & premeditated assault and/or attempted premeditated harm to health with intent, forgery & of introducing tobacco products that do not conform to legal requirements onto the market, e.g. in respect of maximum emission levels.
Analysis of the complaint
The DPPS analysed the complaint and the various clarifications to evaluate if there were sufficient grounds to initiate prosecution proceedings. The DPPS are in agreement with the complainants that smoking is dangerous to health. However, due to case law and current legal & regulatory frameworks, the DPPS does not find a successful prosecution achievable.
As well as investigating the criminal offences detailed in the complaint, the DPPS investigated if other potential offences had been committed. For these additional offences, the DPPS also finds that there are insufficient grounds to initiate a criminal investigation into the tobacco manufacturers. Due to this, criminal law is unable to contribute to stopping or reducing health damage caused by smoking.
Forgery & violation of the Tobacco & Related Products Act.
For many years, it has been common knowledge that smoking is unhealthy and carries substantial health risks. Tobacco users, the authorities and the tobacco manufacturers against whom the complaint was filed are all well aware of the dangerous consequences attached to smoking. Despite this fact, cigarettes and other tobacco products are legally available stimulants. However, manufacturers and vendors must comply with (European) law and regulations.
Until 20 May 2016, both domestic and European law made it mandatory for manufacturers to display the emission levels measured during the ISO tests. Any other test was prohibited and previous regulations also prescribed a similar obligation. From 1994 to 20 May 2016, tobacco regulations required manufacturers to display ISO test results on cigarette packaging. This method had been designated as the exclusive measurement method to ascertain if the requirement with respect to the maximum TNCO levels was met. These test results had to be replicated precisely on cigarette packaging. The fact that smokers potentially inhaled different emission levels in reality does not alter the fact that the law prescribed that ‘the result of the emission tests in conformity with ISO standards must be displayed’. The DPPS is of the opinion that in these circumstances, it is not possible to bring a prosecution for forgery.
The same applies to the addition of substances and ventilation holes. As long as manufacturers conform to the requirements set out in the European Tobacco Products Directive, it is permitted to add substances or ventilation holes into tobacco products. It has not been evidenced that the tobacco manufacturers in this case have violated either the European Tobacco Products Directive or domestic regulations.
The relevant authorities were also aware that the ventilation holes existed and that the test results were accordingly influenced by the holes. However, this knowledge has not led legislators or regulators of European or domestic law to amend the requirements. Therefore, there are no grounds to investigate the tobacco manufacturers.
Attempted murder or manslaughter and/or attempted severe and premeditated physical assault
In order to prosecute for each of the attempted homicide offences and other violent offences in the complaint, the health damage caused by cigarettes has to be attributable to the tobacco manufacturers. In this case, the DPPS is of the opinion that the required causal link is lacking.
Smoking is addictive and this is common knowledge to everyone who takes up the habit. Although it cannot be disputed that cigarette supply plays an essential role in smoker conduct, the DPPS has to simultaneously acknowledge that the conduct of the tobacco manufacturers is in accordance with both domestic and European regulations. Tobacco manufacturers offer a legal product and have to warn users of the health risks. Taking all of this into account, the DPPS conclude that ultimately, it is the smoker – aware of the health risks – that accepts the considerable chance of any resulting health damage by starting to smoke or, having already started, not choosing to quit. Not everyone starts to smoke and there are people who do manage to stop. This element of freedom of choice in the chain of cause and effect means that the negative consequences of smoking cannot be attributed to the tobacco manufacturers under criminal law. These facts impede a successful prosecution of the attempted homicide offences and other violent offences in the complaint.
Other potential criminal offences
Additionally, the DPPS evaluated if a successful prosecution could be brought for criminal offences other than those alleged in the complaint. The DPPS looked at deception, trader deception and introducing products onto the market with a more dangerous nature than indicated. For these additional offences, there are also circumstances that obstruct a successful prosecution of the tobacco manufacturers, i.e. the lack of causation and conformance with legal obligations.
Conclusion
After investigation and analysis of the offences alleged by the complainants and additional potentially relevant offences in the Dutch Criminal Code, the DPPS conclude that a successful prosecution of the tobacco manufacturers – one resulting in a conviction – is not possible within the current regulations and parameters. Cigarettes are a legal (and regulated) stimulant. Smoking is harmful to health but criminal law does not offer the means to combat this harm. The production of cigarettes or offering cigarettes for sale is permitted in accordance with conditions prescribed by law. The DPPS does not see any indication that by offering cigarettes, the tobacco manufacturers have stepped outside the margins prescribed by the legislator.
However, the complaint has put the dangers of smoking firmly back on the agenda and by doing so, has promoted much public debate on the subject. Ex-Minister for the Department of Health, Welfare & Sport (Dutch: VWS) announced that there must be an end to so-called ‘cigarette tampering’. He urged the European Union to make haste in the implementation of a system that measures how dangerous cigarettes really are and stated that the current method is inadequate. See the press release.