Out of the smoking ban into the fire
IT was supposed to be a workplace smoking ban but somewhere down the line it became the publican persecution plan.
Ever since Health Minister Micheál Martin pronounced the end of pub culture as we know it, he and the men behind the counter have engaged in a saloon-style stand-off, staring each other down, warning each other off and always on the verge of going for their guns.
Observers, for the most part, have taken their drinks off the tables, pulled back their chairs, sat tight against the walls and viewed with fascination what has been a pretty fair contest.
Publicans warn of dire consequences for jobs. Minister tosses back accusations of scare-mongering. Publicans lament the dilution of a nation's character. Minister welcomes a new era of sensible citizenship. Publicans snarl about a politburo-style threat to free enterprise. Minister wears his plan like a well-polished badge of social democracy.
So intense and exclusive is the showdown between these two sworn enemies that it easy to forget what the ban is all about and what its true target is not the much-loved institution of the Irish pub, but tobacco.
The cigarette companies haven't helped clear the haze. They might have been expected to burst through the swinging doors to interrupt this private party but they haven't said a word since last summer when the Irish Tobacco Manufacturers Advisory Committee (ITMAC) issued a written submission refuting the scientific grounds on which the minister's campaign against environmental tobacco smoke (ETS), or passive smoking, is based.
ITMAC declined to comment this week on the expected implications of the ban for its members, namely PJ Carroll, John Player & Sons and Gallaher Ltd, or to say why they wouldn't comment, but an industry source said the companies felt that on such a delicate issue, it would be better to say nothing. Besides, the publicans were saying plenty so why not let them at it?
The minister is keenly aware that the point of his campaign may be getting lost and will tomorrow launch a series of television advertisements which will run up to the start of the ban emphasising (a) that it aims to save people from illnesses associated with ETS and (b) it is not only pubs that are affected but every type of workplace in the land.
A quick refresher course in the history of the ban also confirms its objective. In late 1999, the Joint Oireachtas Committee on Health and Children, then answerable to Brian Cowen as Minister for Health, concluded a series of public hearings on smoking with a report that urged an immediate and concerted effort to stamp out the habit.
Smokers will remember the following month as Black December for it became famous for the budget that slapped a whopping 50p (63.5 cent) on to the price of a packet of 20.
It also added almost 1% to inflation so the experiment was not repeated and the largest increase since was in 2002 when 50 cent was added, but the scene was set for a showdown with tobacco and the drama has been played out ever since.
It has not always been clear how big the Government's appetite for the role of tobacco tsar is, however. In July 2001, high-profile Seattle-based lawyer and class action specialist, Steve Berman, fresh from numerous court victories against US tobacco companies, came to Ireland and offered to take a similar case on behalf of the State and, more importantly, to underwrite the costs.
Berman believed the State could recover the costs of health care for smokers and his arguments won him a meeting with Micheál Martin who took the proposal seriously enough to seek the advice of then attorney general, Michael McDowell.
The proposal was examined and a file remains in the AG's office but the conclusions reached have never been disclosed. Berman said this week he understood the AG had advised against taking a case but the Health Department would not confirm this.
A spokesman said only that such a case was "not categorically ruled out" but neither was there any plan to commence proceedings.
Several dozen cases taken by individuals against the tobacco companies have been making their way slowly through the courts, however, and today is a big day for them.
One group of about 20 plaintiffs are represented by Dublin firm Ward & Fitzpatrick who have asked for time in court today to apply to have judgement made against PJ Carroll and John Player & Sons on the basis that they have failed to file a defence or, alternatively and more realistically, have the companies ordered to file their defence within six weeks.
Partner Hugh Ward says his clients are mainly people in their 60s and 70s who started smoking as young as 11 or 12 and were now gravely ill with lung cancer and emphysema.
He claims the companies have deliberately delayed the proceedings because they have no defence and because the 20 plaintiffs are test cases for a case load that could potentially run to 25,000.
"We stopped taking cases a number of years ago because there were so many. Originally we had 2,000 plaintiffs but we streamlined them down to this group, with the agreement of the plaintiffs, so it's more manageable."
Even at that greatly reduced number, the cases are still sapping resources as the cigarette companies are putting up stiff opposition. "We are getting car loads of documents sent to us to bury us in paper. Every affidavit is 200 or 300 pages. I have not seen anything like this before in a case," says Ward.
It would be easier for plaintiffs and their solicitors if they could make one case on behalf of everyone but under current legislation, class actions are not permitted.
The Law Reform Commission last summer presented a discussion document to the Minister for Justice, recommending that some form of class action be provided for in legislation but the commission is still working on details of how such cases would run and don't expect to have a final report before next year.
Prof Luke Clancy, chairman of ASH (Action on Smoking and Health) Ireland, strongly favours the introduction of class actions but would be even more enthusiastic about the State taking a case as has happened in the US.
"Usually the plaintiffs are very ill people and a court case can be very trying for people in their full health. I worry for the individual litigant. I think they are very courageous. These cases are always defended to the hilt by organisations with huge resources behind them. It's going to be very difficult."
His hunch is correct the cases are going to be fought all the way, according to Liam Kennedy, litigation partner with A&L Goodbody solicitors, who represent PJ Carroll.
Goodbody are bringing a counter application to court today, asking for the cases to be struck out on the basis that the plaintiffs have delayed proceedings by failing to provide adequate documentation to back their claims.
"We have a situation which is going right back to 1997 where the plaintiffs' lawyers have been threatening to bring these proceedings and are always on the point of bringing proceedings but they simply have not got on with it," says Kennedy.
"They took years to file statements of claim and have still not provided proper details. Tobacco companies have the same rights as any other defendant the right to know what case is being made against them. In our view the plaintiffs have not fulfilled the obligation of anybody bringing a claim which is to bring proper details of that claim and bring it forward without delay."
Kennedy says the "streamlining" referred to by Ward & Fitzpatrick is in fact a growing realisation by smokers of the realities of taking a case. "There was a very simplistic assumption in the beginning that the situation was the same as in the US, which itself was more complicated than perceived. A large number of plaintiffs have realised this and have abandoned the proceedings. Carrolls obviously intends to do everything possible to protect its position in the remaining proceedings."
The company, and its colleagues in the tobacco industry, will have to fight to protect their position in the marketplace too. The number of smokers in Ireland has dropped from 45% of adults in the 1970s to around 29% now and the workplace smoking ban is only one of numerous legislative steps planned to inconvenience smokers and their suppliers.
The ban is set down in the Public Health (Tobacco) Act 2002 which, when fully enacted, will outlaw packets of 10 cigarettes, prohibit all kinds of advertising and sponsorship by tobacco companies and most promotional material, ban the sale of cigarette-shaped confectionery and prohibit claims that products are low-tar, light, ultra-light or mild.
The Act also creates a registry to which anyone wishing to sell cigarettes has to apply, and pay for the privilege. The act also gives the Office of Tobacco Control powers to raid premises, test products and demand information from companies about the ingredients used in their cigarettes and the marketing ploys they employ.
A spokesman for Micheál Martin said the minister would begin introducing these new restrictions once the workplace smoking ban was firmly in place.
A saloon style shoot-out could happen yet.
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