Prosecutor drops lawsuit against Dutch tobacco industry

The Public Prosecutor decided to drop a lawsuit filed against the four large tobacco producers in the Netherlands accusing them of aggravated assault and forgery, among other things. "Smoking is deadly and the design of cigarettes does add to this, but the tobacco manufacturers have not acted in violation of either the law or the current regulatory framework", the Prosecutor said in a statement on Thursday.

This lawsuit was filed by lawyer Benedicte Ficq on behalf of the Dutch youth smoking prevention foundation Stichting Rookpreventie and two ex-smokers in 2016. Since then numerous others joined the lawsuit, including cancer association KWF, various hospitals, addiction clinics and even some municipalities. 

The complainants accused the tobacco companies of forgery, saying that by placing holes in cigarette filters, the companies can get lower emission levels during ISO tests than what smokers actually inhale. Dutch and and European law states that tobacco companies must place the exact results of ISO tests on cigarette packaging. The fact that smokers potentially inhaled different emission levels doesn't change the fact that the law only requires tobacco companies to show the actual test results on their packaging, the Prosecutor said. They can therefore not be prosecuted for this.

"The relevant authorities were also aware that the ventilation holes existed and that the test results were accordingly influenced by the holes", the Prosecutor added. "However, this knowledge has not led legislators or regulators of European or domestic law to amend the requirements."

The complainants also accused the tobacco companies of attempted aggravated assault or attempted manslaughter, claiming that the tobacco companies purposefully get people addicted to smoking and therefore deliberately damage their health. The fact that smoking is addictive is common knowledge, the Public Prosecutor said. And while cigarette supply plays an essential role in smoker conduct, the tobacco manufacturers are not acting in violation of Dutch or European law - they offer a legal product and warn users of the health risks involved.

"Taking all this into account, the Prosecution concludes that ultimately it is the smoker - aware of the health risks - that accepts the considerable chance of any resulting health damage by starting to smoke, or having already started, not choosing to quit", the Prosecutor said, adding that not everyone starts to smoke and there are people who manage to quit. "This element of freedom of choice in the main chain of cause and effect means that the negative consequences of smoking cannot be attributed to the tobacco manufacturers under criminal law."

The Prosecutor therefore concludes that a successful prosecution of the tobacco manufacturers, one that ends in a conviction, is not possible within the current regulations and parameters. "Cigarettes are a legal and regulated stimulant. Smoking is harmful to health but criminal law does not offer the means to combat this harm."

Ficq is disappointed in the Prosecutor's decision, but will continue this fight. "We'll go to court for an Article 12 procedure in full trot and confidence", the lawyer said to newspaper AD. An Article 12 procedure asks the court to force the Public Prosecutor to prosecute. Such a procedure takes around a year. 

British America Tobacco has "taken note with approval" of the Prosecutor's decision not to prosecute, the Dutch branch of the company said, according to "Our products comply with all applicable laws and regulations and are placed on the market in a completely legal way."