Public and media responses to the first tobacco litigation trial in New Zealand (Pou versus Bat).

• Author: McCool, Judith P.
• Position: Report

Abstract

This paper focuses on awareness of and attitudes towards issues arising from New Zealand's first tobacco litigation trial. It is based on a national telephone survey and a content analysis of related print and radio media relating to the trial. Interviewees showed a moderate level of awareness about the trial and verdict. Only a minority supported the plaintiff (Janice Pou) in her claim for damages against the tobacco companies. The majority of support was in favour of the tobacco companies (68%). The reasons cited for this support included: the information about the effects of smoking was widely known at the time Pou became addicted, she did not try hard enough to quit, and the tobacco companies reasonably informed the public about the effects of smoking their products. In contrast, the majority of media coverage about the trial and verdict was in favour of Janice Pou, or neutral. Thus, contrary to expectation and the support of the media, the New Zealanders' surveyed were reluctant to support litigation as a means of addressing the costs to the country caused by smoking-related illness. Tobacco industry denormalisation strategies could help to shift public support in favour of litigation and corporate accountability.

BACKGROUND

Janice Pou was diagnosed with lung cancer in 2001. After watching a television programme about the deceptive behaviour of tobacco companies, she started legal proceedings against British American Tobacco New Zealand (BAT). She died in 2002, and the case was continued by her estate. In essence, the case argued that the tobacco companies failed to adequately inform the public about the risks associated with tobacco smoking, despite evidence that these risks were well appreciated by the two companies at the time Janice Pou started smoking in 1968 (aged 17 years). Ms Pou's case also argued that by the time the full health risks of tobacco use were public knowledge she was heavily addicted to smoking. The case went to trial in the New Zealand High Court in February 2006. The judgement released 10 weeks after the end of the trial found that the tobacco company had adequately informed smokers of the dangers of smoking cigarettes and that Janice Pou was "under a duty to immediately take reasonable steps immediately to stop smoking, but she did not do so" (Lang 2006).

Up until 2006 tobacco companies in New Zealand enjoyed a litigation-free providence, having not been held accountable in a court of law for any of the health effects or deaths caused by the use of their products. The media attention aroused by the Pou v. BAT case was testament to the audacious nature of the trial. The media were treating New Zealanders to a rare glimpse of the face of the New Zealand tobacco industry, an industry kept largely in the background while their products themselves remain dominant in retail outlets across the country. There was little precedent for this type of trial, and we could only look abroad to evidence of success or otherwise. Australia has gained some tobacco litigation experience in the past decade, with McCabe v. British American Tobacco Australia (BATA) being particularly conspicuous due to evidence of document destruction, which ultimately led to BATA's defeat in the Supreme Court of Victoria in 2002. Wakefield and colleagues conducted a thematic frame analysis of Australian newspaper coverage of the McCabe v. BATA trial. They found that messages were either positively or negatively slanted and tended to frame the debate around "smoking as an individual choice for which smokers are responsible", or "tobacco companies were dishonest and needed to be controlled by government" (Wakefield et al. 2003). In conclusion, the authors drew attention to the implications of these responses from the media, suggesting the need for more effective public communication about the nature of addiction to tobacco and the health implications of being addicted to smoking.

Tobacco litigation offers considerable opportunity to advance the objectives of tobacco control and is argued to be more than merely a battle of (disproportionate) power between corporate body and individual citizen. Litigation cases, particularly when they are uncommon, as in Australia and New Zealand, generate considerable publicity about the effects of smoking and the behaviour of the tobacco industry. As noted by Liberman, litigation also plays a significant regulatory function by raising the price of tobacco products (to cover liability costs) and providing compensation to the victims, among other effects (Liberman 2004, Daynard 2003). New Zealand has a comparatively successful tobacco control record: adult smoking prevalence rates are now 19.9% and smoking among adolescents and young people is also steadily declining (Ministry of Health, 2008). New Zealand has generally responded sympathetically to the introduction of smoke-free policies, the most recent being a ban on smoking in bars and restaurants in December 2005 (Thomson and Wilson 2006), and the introduction of graphic warnings on tobacco products is to be phased in from 2008 (O'Connor 2007). These strategies are undoubtedly contributing to the overall decline in smoking prevalence. However, until 2006 there had been no litigation case in New Zealand to recover costs from the tobacco industry responsible for promoting and selling products that have catastrophic consequences on health.

The Pou v. BAT trial presented a unique opportunity to evaluate public opinion on tobacco litigation in general, while seeking to identify some of the pervasive beliefs that underpin support for, or resistance to, the role of litigation as a possible new tool for tobacco control in New Zealand. The aim of this study was to explore the awareness of, and attitudes towards, the Pou v. BAT trial, including differences by demographic factors and by source of information. Beliefs about the addictiveness of tobacco were assessed in order to explore possible underlying factors influencing attitudes towards litigation in New Zealand. It was expected that those who perceived that it was not difficult to quit smoking would be less likely to be in support of the Pou case and therefore would be less likely to support litigation against tobacco companies in general. Socio-demographic and smoker status differences in support of litigation were also anticipated, as were group differences in awareness and recall of the trial.

METHODS

Sample

A national sample of 750 adults (aged over 18 years) participated in a computer-assisted telephone interview (CATI) survey between 13 and 17 May 2006. Interviews were conducted by market research company UMR Research in the week following the announcement of the verdict of the Pou v. BAT litigation trial. UMR operates under the jurisdiction of the Association of Market Research Organisations (AMRO) and is accredited to conduct telephone surveys.

Procedure

Telephone numbers were sourced from a directory of residential and commercial addresses. The sample was stratified by geographical location, which included 23 directory regions in New Zealand. A filtering strategy was employed to ensure only private households were telephoned. A maximum of five call-backs were made to households with no-response. In addition, the interviewers offered to call back at more convenient...