In an unusual, but unfortunate, ruling the US Supreme Court in a 5-4 majority judgment in March 2000, delivered in the court by the senior judge, Ms. Sandra O’Connor, ruled that the Federal Drug Administration has no legal right to ban the sale of tobacco products to children. The Clinton administration had earlier ruled that sale of tobacco products to children below the age of thirteen years is illegal and the FDA, therefore, banned the sale and also the sale of tobacco in malls and restaurants where children frequent.



Law is very interesting. While there is awareness among the judiciary of public interest litigation here was a judgement, which in the words of Judge O’Connor herself was against social norms. Poor judges can not rule from their hearts. They have to do it from their head as they could only interpret the laws laid down by the country’s lawmakers. Unless there is a change of heart in the lawmakers there is no future for the common man seeking justice and truth in any court of law! This is unfortunate but true.



She admitted in her judgement that children smoking tobacco products is very bad for them and for society, but she went on to add that she has no choice but to rule the way she did, as FDA is not the right authority to ban the use of tobacco, as the tobacco companies never advertised tobacco as a health giving product in the first place. In her considered opinion FDA comes into the picture only when a product is advertised as good for health or for treatment of any disease. The ruling is given solely on the premise that since tobacco is neither a pharmaceutical drug used in the management of disease nor an instrument for the same purpose! Therefore, FDA does not have the right to ban tobacco. She added that if any one has to do that it is the US congress.



While four of her colleagues agreed with her, the other four differed totally with her point of view and ruled that the ban could even be extended to other public places to discourage smoking, which is the one definite changeable risk factor for many illnesses. This is strange as in our system of democracy the majority carries the day! Even the judges are but humans! “Man” said Shakespeare, “ in a castle or cottage; palace or pad is governed by the same emotions and passions.” Nothing could be more true. As long as men matter more than the system, society will have to face the music.



Compare that with what is happening in Australia and NewZealand. Law officers there are examining the possibility of suing the tobacco companies and the legal implications of a multibillion-pound action to recover the costs of tobacco related diseases’ management in Govt. hospitals! Queensland’s attorney general, Matt Foley, believes that the issue will be difficult and expensive to fight in a court of law but is a must. He went on “we believe that the great loss and damage suffered by the community through tobacco related diseases is something that the governments have a duty to investigate.” Ironically, the Federal government there is backing out saying that it is still investigating the matter, according to the attorney general, Darryl Williams.



The Doctors’ Reform Committee there feels that although Mr. Darryl Williams could be right, since every government benefits from tobacco tax revenue, they are partly to blame for the menace. The Cancer Foundation of Western Australia feels that the “initiative could be the biggest blow to the tobacco industry and they would be made to pay for their sins”, according to their chief executive, Mike Daube.



“They (tobacco companies), of course, will oppose the move and will bluff and posture and mislead, but at the end of the day they will have to face the force of the law! And they will have to pay out as a result of the appalling health consequences of their products,” was his firm opinion.



The legal hitch, though, is that the governments would have to prove the amount of losses they had sustained to provide health care to the injured smokers with conditions like lung cancer and emphysema. Having done that they would need to go to establish that those costs have been incurred basically because the smokers themselves have been the victims of the tobacco companies negligence and their misleading and deceptive conduct. The latter is going to be difficult and might lead to a situation like the one in the US Supreme Court.



When money rules the land, morals go out of the window. As in any other field the powers-that-be would be more after money than after morals. I do not see a legal solution benefiting the consumer in this field at all. Asking the politician to eschew money would be like asking a bloodthirsty wolf to be a vegetarian! Unless society wakes up to show the moral way, the menace would continue. Unfortunately, even those who are supposed to be models for the younger generation live on tobacco money. Take the case of sports sponsorship. The money comes exclusively from tobacco and the hapless victims of this hidden propaganda are the vulnerable children.



We in India are far behind in our war against tobacco. While the court cases against many tobacco giants in the past have succeeded, the present US Supreme Court ruling might put a damper on them. There is very little hope of similar lawsuits succeeding in other parts of the world. Tobacco companies have won a big battle. The stock markets in NewYork saw a quantum jump in tobacco stocks the very day the judgement was delivered. That is how the world economy works. If the trend continues the blue chips will all be tobacco tainted.