The 13th World Conference on Tobacco OR Health

Objective: To examine recent developments in litigation and liability in Australia and their implications for tobacco control.

Methods: The study examined the McCabe v BAT court case which generated international attention for its revelations of document destruction by the tobacco industry, and its consequences, both in law reform in Australia and in litigation in other jurisdictions. It also examined the agreement that the Australian Competition and Consumer Commission (ACCC) reached with the three major Australian tobacco companies, putting an end to the use of “light” and “mild” descriptors and requiring the industry to provide funding for a corrective advertising campaign.

Results: Though the verdict against BAT was ultimately overturned on appeal, the case has been important both in Australia and internationally. Document destruction laws are being amended in Victoria, and document destruction has become important in litigation in other jurisdictions including the US and Canada. The ACCC's conclusion that the industry engaged in misleading and deceptive conduct in the marketing of “light” and “mild” cigarettes, and its agreement with the industry, were positive steps, but the content of the agreement – including the fact that it contained no liability for harm caused – and the process leading up to it, demonstrated again the power that industry has by virtue of the way it fights litigation. Litigation remains an important tobacco control strategy (as acknowledged in Article 19 of the FCTC), but the resource difficulties of taking the tobacco industry to court must be acknowledged and addressed by governments and law enforcement agencies.