This post was written by O’Neill Institute Executive Director, Oscar Cabrera and O’Neill Institute Faculty Director, Lawrence O. Gostin. Any questions about this post can be directed to firstname.lastname@example.org or email@example.com.
A prior O’Neill Institute blog by Aliza Glasner reported on the criminal convictions and sentencing of food company executives in the United States for knowingly selling contaminated peanut butter. Bringing criminal charges against any corporations or executives that knowingly or recklessly break the law by selling contaminated or defective products that cause significant risks or harms to consumers certainly makes sense. Indeed, successful criminal prosecutions of corporations and their executives typically focus on harmful actions that directly violate specific statutes or otherwise go well beyond accepted business practices (e.g., bribery) or normal market competition (e.g., fraud).
To protect consumers and the public health more effectively, however, attorneys general and other government prosecutors might also want to consider bringing criminal charges against corporations and executives that actively market certain products that, when used as intended, cause serious, foreseeable harms even when the products are not contaminated or defective.
Such criminal cases would be strongest if the corporations and executives marketed such inherently harmful products fraudulently (e.g., by claiming no consumer risks or harms). But a strong case for criminal liability might also be possible if, in light of their harmfulness, the business’s marketing of the products was reckless or irresponsible, despite following standard business practices and not violating any specific consumer protection or public health laws.
Perhaps the most viable criminal defendants of this type would be the major U.S. tobacco companies and some of their executives. In fact, Action on Smoking and Health (ASH ), a public interest nonprofit, has been exploring the possibility of bringing criminal charges against tobacco companies and their executives for aggressively marketing cigarettes despite knowing that doing so will cause the death of consumers who use the cigarettes exactly as intended.
This criminal charges strategy might sound fanciful. But a 2006 Oregon Supreme Court ruling, in a civil lawsuit against the Philip Morris (now Altria) tobacco company, stated that:
“Philip Morris’s actions, under the criminal statutes in place at the beginning of its scheme in 1954, would have constituted manslaughter. Today, its actions would constitute at least second-degree manslaughter, a Class B felony.”
State laws differ in various ways. But it appears that the tobacco companies’ marketing and sale of cigarettes (a product that kills roughly half of all regular users) could generally satisfy the core elements of involuntary manslaughter because: (1) someone died as a result of acts by the defendant; (2) the acts were done recklessly or in disregard for human life; and (3) the defendant knew or should have known that its conduct was a threat to the lives of others.
Moreover, if the core elements of manslaughter are established, the tobacco company’s criminal guilt would likely remain even if there were some assumption of risk or contributory negligence by the person who died because of the company’s acts. Similarly, it should not be an adequate defense to argue that someone else would have (criminally) marketed cigarettes to the victim if the defendant tobacco company had not.
Nor does it appear that compliance with existing statutes (e.g., putting government-mandated warning labels on cigarette packs) provide an adequate defense to criminal manslaughter. Other common legal defenses to involuntary manslaughter charges (e.g., it was self-defense or an accident) also do not appear to apply.
At the same time, a range of tobacco company actions appear to establish the reckless disregard for human life required for criminal manslaughter and could also constitute criminal fraud. For example, it is well established that the tobacco companies have engaged in aggressive cigarette marketing to maintain and increase smoking among adults and youth; rigorously opposed government efforts to reduce smoking; and actively worked to mislead consumers and the public about smoking risks and harms.
It is also clear that the companies have failed to inform their customers adequately of the risks from smoking and have neither taken advantage of available measures to make the cigarettes they sell less harmful nor instructed consumers how to minimize the risks and harms from use. Indeed, it appears that the tobacco companies have made cigarettes more, rather than less, harmful.
Different standards of evidence apply in criminal cases. But many of the facts suggesting reckless behavior by the tobacco companies in their marketing of cigarettes have already been well established in various civil lawsuits against the tobacco companies, most notably the U.S. Government’s successful civil action against the major U.S. cigarette companies.
It is not clear why no government prosecutor has yet filed criminal charges against a cigarette company or its executives. One possible obstacle might be that finding corporations or individual people criminally guilty for marketing a product that has been perceived as a legal product for decades simply seems impossible or unfair. Or, while it seems quite possible, there might be a fear that bringing criminal charges against a major corporation for its marketing and sale of a legal product without any clear violations of government tobacco control laws would be portrayed as peculiar or inappropriate, or as anti-business, with serious political consequences for the prosecuting official. To protect the public health better, some government prosecutors and other legal experts should ignore such superficial or secondary constraints and begin to explore just the actual legal viability of bringing criminal charges against cigarette companies and their executives. Not necessarily to stop all cigarette sales, but at least to prompt the tobacco companies market cigarettes and other inherently deadly tobacco products much more carefully and responsibly. Meanwhile, smoking continues to kill roughly a half a million people each year in the USA, and current government and private sector efforts to reduce that death toll are inexcusably slow and weak. If possible, bringing potentially successful criminal charges against the major tobacco companies would open another front in the so-called Tobacco Wars. It would also open a door to much more rapid and substantial progress in reducing smoking-caused disease, disability and death.
This criminal charges approach might also be viable in other countries, based on national laws and perhaps bolstered by human rights laws or related treaties or other regional or international conventions. A 2002 law review article, for example, found that bringing criminal charges against tobacco companies in Australia could be successful.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.