Medical misinformation in the 1980s – how Australian lawyers and health experts took on the tobacco industry and won

Monday 15 February, 2021
30th anniversary of landmark Australian court case on passive smoking

 

Before social media permitted the widespread dissemination of medical misinformation, the tobacco industry was well known for using mainstream media for denying and seeking to hide or confuse scientific evidence that showed smoking and, later, secondhand smoke was harmful.

In 1986, the Tobacco Institute of Australia Limited (TIA), an industry association funded by tobacco companies active in Australia, published advertisements in major newspapers in Melbourne and Sydney claiming that “there is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers”. The 1986 advertisements were later discovered to be part of a covert strategy devised by international tobacco companies to address the threat of rapidly escalating concern about secondhand smoke. The publication of the Australian advertisements was an apparent attempt to undermine a significant report from Australia’s National Health and Medical Research Council (NHMRC) on the harms of passive smoking. It may also have been timed to influence a Labor Party debate on banning smoking on public transport, including airlines; given the Labor Party was in power at the time, it was likely this resolution, if successful, would pass into law. (This did transpire, with the government banning smoking on airlines in 1987.) It appears that nothing much has changed given Philip Morris International’s recent paid content in The Australian at the same time a Senate Committee was meeting to discuss electronic cigarettes.

The claim that there was ‘little evidence’ that secondhand smoke caused disease was demonstrably untrue. And on this occasion, the tobacco industry’s misinformation campaign was not going to get a pass. In an incredibly brave move for the time, the Australian Federation of Consumer Organisations (AFCO), now the Consumers Federation of Australia, took TIA to court.

AFCO v TIA was an early and outstanding example of a new type of collaboration in Australia; cooperation between lawyers and medical experts using litigation to rebut medical misinformation and advance public health.

Evidence put to the Federal Court of Australia by AFCO during hearings in 1989 and 1990 included findings from thousands of studies, as well as testimony from some of the world’s most renowned medical scientists. This included Sir Richard Doll, widely acknowledged as the world’s most distinguished medical epidemiologist, Professor Dimitrios Trichopolous whose work was crucial in establishing the link between passive smoking and lung cancer and Professor Tony McMichael, chair of the NHRMC committee on passive smoking, and whose later work saw him recognised as the world’s pre-eminent international authority on health aspects of climate change. After considering this testimony, and material put forward by overseas witnesses for the TIA, Australian Federal Court Justice Morling ruled that there was “compelling evidence” at the time the TIA published their advertisements that secondhand smoke causes lung cancer in non-smokers, and that it was clearly false that there was little evidence that smoking caused respiratory disease in children.

Professor Terry Nolan AO FAMHS, now head of the vaccine and immunisation research group at Melbourne’s Doherty Institute for Infection and Immunity, and Murdoch Children’s Research Institute, was early in his career when he was asked to present to the Court a summary of studies on the health effects of secondhand smoke on children. He recalls being grilled aggressively over two days by Counsel for the Tobacco Institute assisted by “a phalanx of what seemed like about 25 lawyers” (in stark contrast to AFCO’s team of two).

“There were very few paediatric epidemiologists in Australia at that time, so I was asked to summarise scientific findings related to exposing children to secondhand smoke. Now, I had already done plenty of verbal exams, medical school and specialist courses and so on, but my experience being cross-examined was extraordinary. The tobacco industry’s lawyers weren’t interrogating the science, they were just trying to get me to make a mistake. I remember Barry O’Keefe [lead counsel for the TIA] being incredibly sarcastic in his questions and comments. Much of the case came down to the credibility of the witnesses, and the tobacco company witnesses weren’t particularly credible, so the lawyers were doing their best to try and trip up all of the experts giving evidence about the harms of secondhand smoke.”

 

The aftermath

The Hon Trevor Rees Morling QC, a highly distinguished judge and former President of the NSW Bar died just a few months ago (August 2020). His ruling on the AFCO v TIA case released 30 years ago (on the 7 th February 1991) was the first of its kind in a superior court anywhere in the world, and marked the start of sweeping legislative reform to protect non-smokers from secondhand smoke exposure in Australia and around the world. The anniversary of the judgement has been recognised internationally this week with Neil Francey, who acted as Counsel for AFCO, authoring an essay in the prestigious UK medical journal, The Lancet .

TIA was disbanded in 1997.

The law firm acting for TIA in the AFCO case, Clayton Utz, continued to represent tobacco companies until 2002. Most infamously, it represented British American Tobacco in the case brought by Ms Rolah McCabe. In April 2002, McCabe became the first person outside of the United States to obtain a verdict against the tobacco industry in a personal injury claim. McCabe’s case garnered international attention by exposing British American Tobacco’s systematic destruction of thousands of documents under its ‘Document Retention Policy’ and resulted in heavy criticism of Clayton Utz’s conduct. While McCabe’s case was overturned on appeal, it is routinely taught in Australian law schools in subjects on civil litigation and legal ethics. Importantly, the case led to the enactment of new civil and criminal legislation relating to destruction of evidence, which are particularly relevant in the context of combatting an industry with a history of denying and seeking to hide scientific evidence of harm.

 

The outcomes for public health

Faced with the prospects of legal action from employees, workplaces all over Australia rapidly went smokefree following the 1991 ruling. Changing attitudes also had a profound impact on smoking at home, with Victorian surveys revealing a doubling in the proportion of smokers reporting that they never smoked around children. National surveys show that smoking inside at home has continued to decline steadily over time.

Only 2% of Australia’s 9.7m households with children now have anyone smoking inside. In 2019, Australian children in about 2.8 million fewer households are being exposed to tobacco indoors than would have been the case if rates of smoking indoors had stayed at 1995 levels.

Source: Australian Institute of Health and Welfare. Data tables: National Drug Strategy Household Survey 2019 – Table 2.36, 2. Tobacco smoking chapter, Supplementary data tables. Canberra: AIHW, 2020. Available from: https://www.aihw.gov.au/reports/illicit-use-of-drugs/national-drug-strategy-household-survey-2019/data.