Big Tobacco Dodges Trial as Prosecutor Rejects Murder Case

(Bloomberg) -- The Dutch public prosecutor’s office won’t pursue a case against tobacco makers Philip Morris International Inc., British American Tobacco Plc, Japan Tobacco International and Imperial Tobacco Benelux, all accused by an antismoking lobby group of attempted murder and manslaughter.

“A successful prosecution of the tobacco manufacturers -- one resulting in a conviction -- is not possible within the current regulations and parameters,” the authority in a statement. Dutch criminal-law attorney Benedicte Ficq in 2016 filed charges with the prosecutor’s office on behalf of lung cancer and respiratory disease patients, and the Dutch Youth Smoking Prevention Foundation.

The prosecutor’s office said it doesn’t see “any indication that by offering cigarettes, the tobacco manufacturers have stepped outside the margins prescribed by the legislator.”

A criminal trial would have opened a new front in the battle by antismoking campaigners against big tobacco, which 20 years ago agreed to a more than $200 billion settlement in the U.S. A decision to prosecute would have made for the first criminal prosecution of tobacco firms, according to Ficq.

Appeals Court

Ficq will continue to seek prosecution by taking the case to the Court of Appeals in The Hague, she told reporters at a press conference in Amsterdam. She said the way to pursue this is through charges of forgery, which were also included in the current complaint filing.

In a move echoing the recent diesel-emissions scandal involving carmakers, Ficq alleged in its 2016 complaint that the four tobacco firms deliberately rigged testing procedures by inserting paper ventilation holes in an area normally covered by fingers during smoking but left free when levels of tar and nicotine are measured with test apparatus.

Because such machines also suck in fresh air, measured levels of tar and nicotine disclosed on cigarette boxes are lower than the actual levels inhaled by a person when smoking, the 2016 filing alleges.

Legally Sound

A case with the Court of Appeals will have to be filed within three months, Ficq said, and the court will look into whether the public prosecutor’s argumentation not to prosecute is legally sound. The new proceedings could take as much as a year altogether, she added.

“We agree that smoking causes diseases,” and “believe that addressing the harm of smoking is better served by giving the millions of consumers smoke-free products that are a much better choice than cigarette smoking, said PMI spokeswoman Tiffany Steckler. “Our goal is that these products replace cigarettes as soon as possible."

BAT said it notes the prosecutor’s decision and that all its products are offered in an entirely legal way. JTI and Imperial Brands said they always produces their products in full accordance with all applicable laws and regulations.

The Dutch fight comes as the tobacco industry faces European Union legislation imposing strict curbs on packaging. Tobacco kills about 700,000 people a year in the EU, or one person every 45 seconds, according to the European Commission, which says a third of European adults still smoke.

Cigarette producers use “hundreds of different kinds of additives” to lure and keep consumers addicted, according to the allegations made by Ficq. More than 80 percent of smokers took up the habit before they were 18, the group said.

“Smoking is harmful to health but criminal law does not offer the means to combat this harm,” the prosecutor’s office said in an emailed statement, adding that the production of cigarettes or offering cigarettes for sale is permitted in accordance with conditions prescribed by law.

--With assistance from Sam Chambers

To contact the reporters on this story: Ruben Munsterman in Amsterdam at rmunsterman1@bloomberg.net, Ellen Proper in Amsterdam at eproper@bloomberg.net, Wout Vergauwen in Amsterdam at wvergauwen@bloomberg.net.

To contact the editors responsible for this story: Joost Akkermans at jakkermans@bloomberg.net, Peter Chapman, John J. Edwards III

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