A conversation with Daniel Dorado and Rachel Rose Jackson
As the world continues to navigate the COVID-19 pandemic, Russia’s unprovoked invasion of Ukraine, and widespread violence around the world, two other crises with global consequence are also spiraling out of control.
The public health crisis spurred by the tobacco epidemic and the climate crisis are linked principally to the death of millions of people a year. Both contribute to trillions of dollars in damage annually, threaten the viability of entire nations, devastate the environment, harm communities, and exacerbate inequalities.
In both cases we can address the root of these crises before it is too late and unlock the finance needed to do so equitably. We do so by holding both the tobacco industry and polluting industries liable for the damage they cause.
We explored this shared solution of liability on World No Tobacco Day and on the eve of the next round of negotiations at the U.N. Convention on Climate Change (UNFCCC). Daniel Dorado, director of policy organizing and tobacco campaign: international & Latin America, and Rachel Rose Jackson, director of climate research and policy, sat down to talk about why liability is a necessary tool to address both crises.
RACHEL ROSE JACKSON: Let’s start at the beginning. What is liability?
DANIEL DORADO: Broadly speaking, “liability” refers to actions taken to hold corporations, industries, or other actors responsible for the harm they cause. Some form of liability has been practiced by communities and governments for centuries. It often involves legal action; however it can also involve legislative, policy, or cultural tools. These include measures such as reparations, establishing binding legislation, unlocking barriers to justice, ending subsidies, investigations, or lawsuits, to name a few. Collectively they have the power to stop the healthwashing and greenwashing that enable corporations to engage in dirty business. Liability also hinders corporations’ ability to continue to harm.
The liability roadmap and the civil liability toolkit are two great resources for holding, respectively, polluting industries and the tobacco industry liable. They illustrate the ways liability can be used by a variety of decision-makers, including policymakers and civil society, to unlock the finance and other resources needed to address the climate and public health crises.
RRJ: Public health advocates have led the way in advancing liability against the tobacco industry. Can you start by telling us a little bit about the history of tobacco industry liability and how it became part of the global tobacco treaty?
DD: Tobacco industry liability and a strong international treaty on tobacco control have come hand in hand. In fact, the liability cases that took place in U.S. judicial courts against the tobacco industry led to the release of thousands of internal industry documents. This allowed tobacco control advocates to identify all kinds of abuse such as violations of rights, infringement of commercial and trade laws, and others. These revelations, in part, validated the need for a strong global treaty and subsequent national action.
When global litigation of the tobacco industry started to increase in the 1990s, governments became aware of the need to regulate tobacco. This ultimately led to the adoption of the global tobacco treaty or WHO Framework Convention on Tobacco Control (FCTC) in 2003. Liability was seen as so core to addressing the tobacco epidemic that advocates succeeded in ensuring the inclusion of Article 19, which calls for governments to use liability as a tool to hold the tobacco industry accountable and promote public health.
Since the adoption of the FCTC, the development and implementation of tobacco industry liability through Article 19 has continued to take shape during and beyond the treaty meetings, including through the establishment of an expert liability group.
RRJ: And what is some of the impact we have seen from action taken to hold the tobacco industry liable? In other words, how do we really know liability works?
DD: The history of tobacco industry liability has proven that liability can unlock billions of dollars to address costs, repair harm, end corporate abuse, and advance justice. We do not have to wonder if liability works, because in the case of the tobacco epidemic, it has been shown to do so.
For example, it has resourced and paved the way for lifesaving public health policy. It has provided billions of dollars in compensation that in turn has been used to address harms and advance solutions. It has forced the tobacco industry to reveal millions of damning internal documents that built an evidence base documenting misconduct. Liability has also helped take away the tobacco industry’s social license and opened up discussions on how tobacco executives and/or corporations can be held criminally responsible.
Many countries already have policies or processes in place that can be utilized or built upon to hold corporations liable. For example, in the Global South, Brazil has filed a lawsuit against two major tobacco corporations to recover health care costs, moral damages, and anticipated health costs. South Korea has filed a suit against the tobacco industry for damages for the equivalent of $51.9m for the health-related costs of disease caused by smoking. In the Global North, the Master Settlement Agreement in the U.S. and long-standing Canadian liability actions have unlocked billions of dollars for public health.
DD: How are you thinking about liability as it relates to the climate crisis, Rachel Rose?
RRJ: Well, to start, the economic costs associated with the climate crisis are enormous. In 2021, 10 climate-related disasters alone—from the winter storm in Texas to cyclones in South Asia—cost more than US$170 billion.
All the while, polluting corporations are raking in unjustifiable profit. In 2019 alone, Exxon Mobil, Royal Dutch Shell, Chevron, BP, and Total S.A. had revenues totaling approximately US$1.35 trillion.
Imagine the lifesaving measures and real solutions that could be implemented rapidly if these industries were made to pay for their harms.
DD: Yes, it’s the same with the tobacco epidemic. In 2012 the total economic cost of smoking was 1.8% of the world’s annual gross domestic product (GDP). Meanwhile the tobacco industry is set to make US $914.20 billion in revenue this year.
RRJ: With costs as great as these (even before considering social, environmental, and other non-economic costs), we simply cannot afford NOT to hold these deadly industries liable. The resources that could be garnered through liability are vast, as are the potential costs that could be avoided by stopping corporations’ harmful actions. If implemented comprehensively and equitably, liability could help ensure our and the planet’s survival. But we are in the final second of the 11th hour to alter course.
Let’s be clear, though. No amount of financial compensation can absolve the damage and wrongdoing caused by these deadly industries. Liability is not about charging them a fee and looking the other way while they continue business-as-usual.
DD: Exactly. Liability is about redirecting funds so that communities on the frontlines of these crises can simultaneously address harms and advance solutions, all while ending life-threatening business practices.
DD: Right now, there are growing calls to hold Big Polluters liable in the same way the tobacco industry is being held liable. Why and how?
RRJ: Simply put, polluting corporations have set our house on fire, and they are letting it burn to the ground. And they are throwing even more gasoline on it so it burns even faster.
Decision-makers have to decide. Are we going to stand by and watch while millions of people die, a billion people are displaced, and the planet rapidly becomes uninhabitable? Or are we going to remove the firestarter and race to put out the fire before it really is too late?
The climate crisis was not an accident. Polluting corporations knew, more than half a century ago, that burning fossil fuels and using their products as intended would result in the crisis we see unfolding today. Then they buried the truth and spent billions upon billions of dollars covering their tracks and orchestrating the dependency of economies and energy systems on fossil fuels.
This is why climate justice advocates and policy experts around the world know that liability is a necessary tool to address the crises. Together, we’ve created a roadmap of local, national, and international actions to hold polluting corporations liable, which also includes a set of principles to ensure liability directly supports frontline countries and communities, honors differentiated responsibilities, and avoids dependence on polluting industries.
DD: But let me ask you this: Tobacco is a product that kills when used as intended, and some would say fossil fuels do not. So are these two products, and therefore the solutions to address their harms, really that comparable?
RRJ: Evidence is piling up that the fossil fuel industry’s actions can be associated directly or indirectly with human deaths and environmental devastation.
Climate change is linked to up to 5 million deaths annually, and fossil fuel pollution caused 8.7 million deaths in 2018. The global emissions that have spurred climate change can be traced to just a small cohort of fossil fuel corporations. Many of these corporations knew the consequences of their actions would involve devastation of people and the planet.
Not to mention, fossil fuels are complicit in enabling the current war in Ukraine, which has already caused thousands of deaths. And it’s not the only place in the world where fossil-fuel-linked violence is unfolding.
This is not an industry that ensures economies can thrive. This is an industry that, if allowed to continue unchecked, will further contribute to death and destruction.
And that’s why we’re looking at the precedent set by public health advocates for corporate liability more broadly.
DD: Yes, it’s been inspiring to see how tobacco litigation has helped spur liability actions in other spaces. Article 19 of the FCTC provides a robust foundation for tobacco control advocates, climate policymakers, and civil society around the world to expand and adapt to be even more visionary and bold. As you’ve said, we are now witnessing a growing trend of polluting corporations being investigated or sued for their role in climate change. And U.N. policymakers are pursuing a legally binding treaty on transnational corporations.
RRJ: Is there more to be done to hold Big Tobacco liable?
DD: Definitely. Governments should continue supporting the FCTC Secretariat in completing its mandate from prior COPs to create tools and resources to assist Parties with Article 19. They should also ensure it is on the agenda for COP10 as it was adopted during COP8. We’re also looking to governments to structure and form better frameworks for international cooperation, such as international liability regimes.
DD: I’d love to close by thinking with you about what is at stake in this moment if governments and decision-makers do not urgently hold polluting corporations and the tobacco industry liable.
RRJ: People and Global South governments least responsible for the climate crisis and most targeted by the tobacco industry are being forced to pay for and endure the harms of corporations. For many Global South governments, this involves taking resourcing away essential services such as education, food security, and housing.
We must use all available tools—legislative, legal, political, and cultural—to hold these corporations liable. That is how we can access hundreds of billions of dollars to support communities and countries in the throes of these crises, and remove the political power that allows these industries to continue to pillage and plunder.