The toxic sludge that percolates through talkback radio has had a vintage year, with litigants who “got lucky” in court coming in for particularly vicious criticism. Two cases provide telling contrasts. Marlene Sharp, the non-smoking Port Kembla barmaid who was awarded half a million dollars in 2001, was seen to be deserving: she didn’t bring it on herself. It probably helped that she looked like everyone’s favourite aunt. But 51-year-old smoker Rolah McCabe, who got $710,000 in April this year, had to run the shock-jock gauntlet. “No one forced her to smoke.” “Hello! Has she been living on Mars for the last 40 years? Everyone knows smoking is dangerous, so those who smoke voluntarily assume the risks.” And what about the millions of ex-smokers who have quit unaided – the subtext being that those who whine that they can’t stop didn’t really try. Parents of children suffering from horrendous idiopathic diseases like childhood cancers noted that they couldn’t sue anyone, so why should someone who consciously elected to smoke and was too indifferent to quit be “rewarded” when their unlucky number is drawn in this voluntary lottery?

Justice Jeffrey Eames’ judgement in the Supreme Court of Victoria in April against British American Tobacco (Australia) seems destined to become a landmark in the pursuit of justice by the tobacco industry’s millions of victims. Eames found extensive evidence of BAT’s 17-year program of systematic document shredding and that this had denied McCabe a fair trial. The legal implications of the case are momentous, but its public discussion has provided sobering reminders of the propensity for victim-blaming in our community.

Rolah McCabe is in every respect a typical tobacco victim. Like tens of thousands before her, she commenced smoking at 12, rapidly developed a dependency on nicotine that took her to a pack a day, and by middle age was diagnosed with lung cancer. If she dies within the next year as predicted, she will lose 30 years off the lifespan that the average Australian woman can expect today. Over 4,200 Australians aged below 65 die each year from tobacco-caused disease.1 About half of those who smoke long term will die from a tobacco-caused disease, on average losing about 12 years. Each cigarette they smoke takes about double the time it took to smoke it off the end of their lives. There is no cause of death that even comes close to this.

People who sue tobacco companies find themselves the focus of wider public discourses about the intertwined themes of personal responsibility and the spectre of the sort of bleak society that wraps its citizens in cotton wool in the slavish pursuit of zero risk. Throw in anti-lawyer venom and you have a potent mixture. These discourses reach out to us all, including citizens who might be selected for jury duty in such trials. Two recent cases widely ridiculed by the public have included a man who became a quadriplegic after diving into a sandbank at Bondi. He sued Sydney’s Waverley Council for failure to warn him about the dangers of diving into waves and was awarded $3.75 million. Public comment went ballistic about what was seen as bordering on the idea that life itself should carry a health warning. Weeks later, a boy injured in a rock fight while playing truant from school successfully sued his school for negligence in failing to supervise him and was awarded $221,079. Such cases receive massive negative prominence and can infect all litigation involving any volitional activity as being all about rewarding the sort of people who blame others for their own misdeeds.

​Get them young

So why should juries give smokers the time of day? The sport of blaming smokers for their fate falls at a trifecta of interlinked hurdles. The first is the tobacco industry’s deep and abiding interest in children. In 1998, under the weight of the disclosures among 40 million pages of internal documents made public via US court action, the world’s tobacco companies opted for global rebirthing. After decades in denial, they announced that they had suddenly decided that smoking really did cause diseases like lung cancer and that nicotine was addictive. The name of the game from now on was informed consent by adult smokers. It wasn’t just the government saying tobacco killed; Philip Morris et al. now agreed it did. The line would be that smokers should be regarded like motorcyclists or hang-gliders: informed, sentient and consenting participants in a dangerous activity with only themselves to blame if things went wrong.

In all this, however, it is significant that the industry has clung resolutely to its mantra that it doesn’t want children to smoke. It knows that all societies revile those who would seduce and harm children, exploiting their innocence. It is thus inconceivable that the industry might ever swallow a truth serum powerful enough to cause it to confess, “We love it when children smoke! As our shareholders know, their money is as good as any adult’s. The earlier they start, the more money we get.” With tobacco, the script for the Pied Piper metaphor could have been written in Business Studies 101. As one 1973 document put it, “Realistically, if our company is to survive and prosper . . . we must get our share of the youth market”.2 No amount of denial and sugar-coated earnestness about “adult choice” can ever make this bottom line go away. Thanks again to the revelations in their own documents, robotic denials about industry designs on children may now be comprehensively matched with dozens of gloating sales forecasts about the contributions of new smokers from the teenage market and focus group research on how children might use different brands to badge themselves in their relentless pursuit of teenage tribal identity. A market analysis for 1994 showed that across all three companies then operating in Australia, brand switching between companies totalled 1.6 percent of overall market share, but new smokers that year (almost all children) constituted 2.3 percent – 43 percent times more important to the companies than gaining customers from other brands. But of course, the big earner – brand-loyal smokers, representing 96.1 percent of sales – are nearly all smokers who started smoking as kids.3

If the global tobacco industry was sincere in its sanctimonious loathing for teenage smoking, it could hand back its billions in ill-gained profits – with interest – from teenage smoking gained since it first commenced this rhetoric in the 1970s. Don’t hold your breath.

​Everyone knows it’s harmful

When victim-blamers grudgingly concede that the tobacco industry invested millions in teenage-friendly campaigns, this is waved away by arguing that once kids mature, they are free to stop taking the risks they can now appreciate as sovereign, fully informed adult consumers. Just as nearly everyone has heard of Santa Claus, so has everyone heard the proposition that smoking is harmful. But how many believe it? And moreover, what are we to make of a 40-year exercise the industry called its “smoker reassurance” program?

The sordid 40-year history now being painstakingly unearthed by tobacco control’s document archaeologists reveals pharaohs’ tombs full of private acknowledgement in the industry that tobacco causes disease, overlain by massive international programs of public obfuscation and reassurance, and tame-scientist dissembling. For every newspaper report that smoking was harmful, there were dozens of advertisements whose entire choreography said, “Forget all that! This is what smoking means!” And sprinkled liberally throughout the bad news on smoking were hundreds of carefully orchestrated stories placed by the industry’s PR machine about air pollution causing all the cancer, confounders like diet and pet bird keeping, and apparent anomalies of low lung cancer rates in high-smoking populations. The industry built lists of everyday agents and practices said to be dangerous which had ever been the subject of news reports, and distributed these to its spokespeople so that they could put it to audiences that “scientists” warned us that brussels sprouts, bubble baths and books were dangerous too.4 So what were we to make of their claims that smoking was harmful? Stock phrases like “The jury is still out” and “Only a statistical association” that fed the ordinary person’s scepticism about science were grist to the same mill.

Commencing in 1969, the Australian tobacco industry acted like the Michael Edgley of travelling scientists. Its documents show at least 12 heavily promoted media tours between 1969 and 1988, many focused on promoting the ideas that scientists were divided about smoking being harmful and that it was air pollution, not smoking, that caused lung cancer (the rather unfortunate argument here is that lung cancer rates per head of population are currently the highest in Australia’s remotest and most unpolluted areas, the difference being almost entirely explained by the higher proportion of smokers in the bush).5

In 1978 Philip Morris, Rothmans, and W.D. & H.O. Wills set up the Tobacco Institute. Its main role was to attack each and every proposal with the slightest potential to impact on sales, and to implement the companies’ international programs of misinformation. In 1984, Ita Buttrose interviewed me with the head of the Tobacco Institute, John Dollisson, on her 2UE radio program. After ten minutes, Ita turned the program over to talkback. A woman named Pat called in said:

I replied, “Diseases like lung cancer occur far, far more in smokers than they do in non-smokers. It’s not the only thing that causes lung cancer. Asbestos and all sorts of other agents can cause cancers in the body and so can smoking.” Then, in what I count as one of the more chilling moments of my career, Dollisson took his turn:

Such statements were commonplace for several decades. Retail magazines distributed to tobacconists are filled with material described as “convincing arguments to pass back to nervous customers”. In 1987, a Sydney study of smokers reported that 59 percent of smokers agreed that “everything causes cancer these days”. Another in 1992 found that 42 percent of smokers agreed with the statement, “Most lung cancer is caused by air pollution, petrol fumes, etc.” and 45 percent believed that “the medical evidence that smoking causes cancer is not convincing”.

​Addiction

The victim-blamers’ final bête noir is addiction. A 1980 Tobacco Institute memo expressed the problem plainly: “Shook, Hardy and Bacon [the tobacco industry’s lawyers] remind us . . . that the entire matter of addiction is the most potent weapon a prosecuting attorney can have in a lung cancer/cigarette case. We can’t defend continued smoking as ‘free choice’ if the person was ‘addicted’.”6 Behind closed doors, the addictiveness of nicotine was a commonplace to the industry (BAT in 1978 noted that “very few consumers are aware of the effects of nicotine i.e.: its addictive nature and that nicotine is a poison”). But in public, it constantly denied nicotine was addictive and succeeded in keeping the dreaded word off pack warnings for over a decade. The acres of documentary evidence now available on industry nicotine manipulation evoke nothing less than imagery of scheming industrial chemists setting out to maximise addiction. Australian Bill Webb, now one of the most senior people in Philip Morris in the USA, wrote to head office to arrange to have Marlboro reformulated in Australia: “our aim is to make Red and Special Mild as close as possible to the USA blend and thus make it harder for existing smokers to leave the product”.7 When such material is set next to the industry’s blue-in-the-face denials on addiction, its desperate efforts to resist “addiction” on pack warnings and its trivialisation via comparisons with chewing-gum, chocolate and television viewing, recourse to glib talk about free choice sounds simply puerile.

The victim-blamers would have it that if, like Rolah McCabe, you were a 12-year-old girl, awkward about your identity, and reassured by advertising that promised friendship and togetherness from smoking (Rolah McCabe smoked Escort, advertised with the cheery ditty “Join the club”), you were to blame. If the nicotine receptors in your brain became rapidly primed via the best nicotine pharmacology that the industry’s scientists could secrete, without any advice or warning into their chemical cocktails, again, it was your fault that you became addicted. And if you were stupid enough ever to have fallen for any of the scientific denials peddled by credentialed industry scientific stooges (“Light up, drink up and stay healthy! That’s the good news from American expert Dr Carl Seltzer who claims that smoking is not related to heart disease . . . The Harvard University lecturer says he’s never been challenged by the medical profession . . . Dr Seltzer’s word must be taken very seriously. After all, he is the doctor of Harvard University”8) then you deserved what was coming to you.

All over the world, smoking and the diseases it causes are increasingly becoming the providence of nations’ poorest and least educated sub-populations. Such people are the least able to assess the complexities of conflicting epidemiological evidence. These are also the often dirt-poor people for whom aspirational brand names like Winfield, Holiday and Longbeach and the ad campaigns that accompany them are named by the cynical and well-paid interpreters of tobacco-industry smoker focus groups.

The mass document-shredding uncovered in the McCabe case adds another potent element to the discourse about tobacco-industry culpability. It is difficult to conceive of any industry other than a crime syndicate that would feel so ashamed or vulnerable about their work as to systematically destroy evidence about their core activity. Ordinary people, like the citizens who make up juries, know that this is what the guilty do when they know they are in the wrong. While the evidence from undestroyed internal documents is damning enough, one can only begin to imagine the contents of the material that went into the shredders. And the view from those at the top? Nick Greiner, BAT’s chairman, put it neatly in 1997: