As promised, I enclose a copy of the legal advice we have received about the use of the Consumer Protection Act 1987 in relation to tobacco.

1 March 2000

ADVICE

  1.  The Health Education Authority have been asked to advise the House of Commons' Health Committee as to the health risks of smoking. In evidence before the Committee on 18 November last year it was said by Mr Baxter that tobacco products were excluded from the Consumer Protection Act 1987, but that there was provision for secondary regulations to control tobacco products. The Committee apparently thought it would be helpful to have a written memorandum as to the status of the control mechanism (other than voluntary agreements) in relation to tobacco companies.

  2.  The Consumer Protection Act 1987 is divided into separate parts. Part I covers product liability, implementing the Product Liability Directive of the EC (85/374/EC) with a view to imposing strict liability upon producers and importers in respect of damage caused by defective products. Part II consolidates some earlier legislation, and creates a new criminal offence of supplying consumer goods which do not satisfy a safety standard known as the "general safety requirement". Parts III, IV and V are not material, save in limited respects, to the subject I am asked to address[22].

  3.  Tobacco is defined for the purposes of Part II as including ". . . any tobacco product within the meaning of the Tobacco Products Duty Act 1979 and any article or substance containing tobacco and intended for oral or nasal use". (Section 19(1))

  4.  Section 10 of the Act (within Part II) provides that "consumer goods" fail to comply with the (required) general safety requirements if:

". . . they are not reasonably safe having regard to all the circumstances, including—

(a)  the manner in which, and purposes for which, the goods are being or would be marketed, the get-up of the goods, the use of any mark in relation to the goods and any instructions or warnings which are given or would be given with respect to the keeping, use or consumption of the goods;

(b)  any standards of safety published by any person either for goods of a description which applies to the goods in question or for matters relating to the goods of that description; and

(c)  the existence of any means by which it would have been reasonable (taking into account the cost, likelihood and extent of any improvement) for the goods to have been made safer."[23]

  5.  However, consumer goods do not fail to comply with the general safety requirement in respect of:

"(b)  any failure to do more in relation to any matter than is required by—

(i)  any safety regulations imposing requirements with respect to that matter;

(ii)  any standards of safety approved for the purposes of this sub-section by or under any such regulations and imposing requirements with respect to that matter;

(iii)  any provision of any enactment or subordinate legislation imposing such requirements with respect to that matter as are designated for the purposes of this sub-section by any such regulations."

  6.  Three matters stand out from the statutory text which I have just cited. First, it is necessary to know what "consumer goods" include. Secondly, it would seem that if there were appropriate instructions or warnings given as to the use or consumption of the goods and no reasonable means of making the goods safer, that might arguably enable the consumer goods to comply with the general safety requirement. Thirdly, if any specific standards in any particular respect are prescribed by approved standards of safety or by safety regulations, then even dangerous products which comply with those standards are not in breach of the general safety requirement.

  7.  "Consumer goods" is an expression defined by Section 10(7) as meaning ". . . any goods which are ordinarily intended for private use or consumption, not being . . . tobacco".[24]

  8.  It is important to note that it is only from this section in this particular Part of the Consumer Protection Act 1987 that tobacco (adopting the definition I have already quoted) is excluded. Part I of the Consumer Protection Act (imposing strict liability for "defective products") applies in principle to tobacco, as does section 11 to which I shall now turn.

  9.  Section 11 of the 1987 Act provides that the Secretary of State may by Regulations make "such provision as he considers appropriate for the purposes of Section 10(3) . . ." (ie for imposing regulations compliance with which will satisfy the general safety requirement in respect of consumer goods other than tobacco) " . . . and for the purpose of securing . . . (a) that goods to which this section applies are safe . . ."[25]

  10.  Accordingly, his powers are not limited to making provisions in respect of "consumer goods", but are limited only by the scope of the definition of those "goods" to which Section 11 applies.

  11.  The meaning of "goods" to which Section 11 applies, as distinct from "consumer goods", is provided by Section 11(7) which states:

"This Section applies to any goods[26]other than—

(a)  growing crops and things comprised in land by virtue of being attached to it;
(b)  water, food, feeding stuff and fertiliser;
(c)  gas . . .
(d)  controlled drugs and licensed medicinal products."

  12.  It seems plain, therefore, that tobacco products are within the scope of "any goods" within the meaning of Section 11, but are excluded from the description "consumer goods" to which Section 10 applies. The difference is in the extent of the goods excluded from the respective definitions. Whereas tobacco products are in the list of items expressly excluded from the scope of "consumer goods", and therefore from Section 10, they (together with aircraft and motor vehicles, which are also in the list of exclusions from the "consumer goods" category) are not included in the list of goods excluded from the application of Section 11.

  13.  I do not know (and I have not checked Hansard to see) what is the reason for the distinction between the breadth of the exclusion in Section 11 and that in Section 10. However, I suspect that it is because primary legislation other than the 1987 Act specifically provides for the regulation of safety in respect of the other items which are common to the lists of excluded categories under both sections (namely growing crops, water, food, feeding stuff, fertilizer, gas, controlled drugs and licensed medicines) whereas primary legislation does not provide specifically for such regulations in respect of motor vehicles and tobacco.

  14.  Another distinction between the requirements imposed by Parliament in Section 10, and those which may be imposed by the Secretary of State under Section 11 is that Section 10 deals with a "general safety requirement" (described as such). I can see that it might be fiercely arguable that tobacco complied with the general safety standard, as defined. It could be said that it was reasonably safe within the meaning of Section 10. The opposite is plainly arguable too. Any definitive decision, by a Court, one way or the other, would have potentially important consequences, either because it would amount to a blanket ban on tobacco with social consequences which it is for politicians, not lawyers to judge (eg the economic effect of any ban; whether any ban would be as difficult to impose as was prohibition in the United States; etc), or because it would appear to give carte blanche to tobacco companies to market their dangerous products. On the other hand, Section 11 permits specific safety requirements to be imposed by secondary legislation, enabling the regulation of any dangerous component of tobacco (if it could be identified), the setting of specific requirements as to appropriate warnings to be given, and indeed a greater flexibility of ministerial response to developing knowledge and to social change. Thus whereas regulation under Section 10 might be seen as a crude instrument (the alternative being perhaps between complete sales freedom, or complete ban), that under Section 11 might be able to accommodate a changing climate of opinion—for instance, it enables warnings to be introduced and strengthened so that they had maximum effect. It enables regulation to keep step with a general campaign of education of the consuming public as to the dangers of smoking tobacco. However, I must again emphasise that whereas as a lawyer I can comment on the function and the potential utility of a provision, the actual use and desirability of it remain a matter for political and not legal judgement.

CONTENT OF REGULATIONS

  15.  It is permissible for safety regulations made under Section 11 of the Consumer Protection Act 1987 to contain regulations to ensure that goods are safe, that goods which are unsafe to some (eg youngsters) are not made available to those who might be harmed, and that appropriate information is provided (and inappropriate information not provided) in relation to the goods. In particular, safety regulations may contain provision[27]with respect to the composition, contents, design, construction, finish or packing of goods, as to requirements for the approval of goods, their testing or inspection, for requiring a mark, warning or instruction or other information to be put on or to accompany goods or to be used or provided in some other manner in relation to those goods (and for securing that inappropriate information is not given), and for prohibiting persons from supplying, offering to supply or exposing for supply such goods[28].

  16.  Safety regulations may only be made by the Secretary of State after consultation, in particular with those organisations that represent the interests substantially affected by the proposal (eg examples in the present case might be the Tobacco Manufacturers Association, ASH, and the Health Education Authority).

  17.  Enforcement of the safety regulations is by a mixture of means. Some aspects are specifically made criminal offences[29]. Moreover, forfeiture applications may be made to a Magistrates Court seeking the forfeiture of goods in respect of which there has been a contravention of any safety provision.

  18.  It is worth noting that the definition of safety in Section 11 is one which gives the Secretary of State considerable powers. The definition (in Section 19(1)) is wide: it means, in summary, that goods are only safe where there is no risk, or no risk apart from one reduced to a minimum, that the goods, their keeping, use or consumption, or any emission or leakage from them will cause death or personal injury to any person whatsoever.

  19.  Applied to tobacco, this means that cigarettes cannot be regarded as safe unless the risk of injury not only to any smoker, but to any person who might "passively inhale" cigarette smoke is reduced to a minimum.

  20.  However, I think it is reasonably arguable that the regulations do not give the Secretary of State power to impose a blanket ban upon the selling of all tobacco products. If, for instance, it could be shown that an ultra low tar cigarette could be produced, with nicotine levels reduced to a minimum, then it is arguable that the Secretary of State would have no power to restrict the sale of such a product although he would have power to ban the sale of any other product with a higher tar and/or nicotine content. The arguments here are complex, and I should be happy to deal with them at greater length if it would be helpful to do so.

  21.  In R v Secretary of State for Health ex parte United States Tobacco International Inc [1992] 1 QB 353, the Divisional Court considered the relationship of Sections 10 and 11 of the Consumer Protection Act 1987. The ban on oral tobacco products introduced by the Secretary of State in exercise of his powers under Section 11 was challenged by an application for judicial review. The Court took the view that although tobacco was expressly excluded from the provisions of Section 10, the Secretary of State for Health had a power under Section 11 to prohibit the supply of specific tobacco products. Regulations could cover risks arising from the inherent nature of tobacco itself.

  22.  In two illuminating comments, Taylor LJ said (365D-E) that tobacco was excluded from Section 10 because the application of a general duty could raise particular problems in the context of tobacco; but considered that it would clearly be within the powers of the Secretary of State under Section 11 to prohibit (for instance) the supply of cigarettes with a tar content above a certain level. So to do would not be inconsistent with Parliament having refrained from applying Section 10 to tobacco generally.

  23.  Moreover, any suggestion that European Community law in some way restricted a prohibition under Section 11 was roundly disposed of (see pp 367-8).

REGULATIONS

  24.  The 1987 Act repealed the Consumer Safety Act 1978 and the Consumer Safety (Amendment) Act 1986[30]. However, regulations made under the previous Acts remain in force. Regulations have been made under the 1987 Act, Section 11, in respect of tobacco labelling and warnings, banning oral snuff (and oral tobacco such as Skoal Bandits[31]).

  25.  The effect of European Directives and domestic regulations is currently that cigarettes are limited to a maximum of 12 milligrams of tar per cigarette.

  26.  Further regulation of tobacco sales to adults is made by the Children and Young Persons (Protection from Tobacco) Act 1991, despite its title. Although this Act principally deals with the sale of tobacco products to anyone under the age of 16 (which is prohibited) it also prevents the sale to any person of loose cigarettes. They may only be sold in pre-packed quantities of 10 or more cigarettes in their original package. (Presumably this is to ensure that warnings are not evaded by repackaging, or by selling apart from the packaging.)

PART I OF THE 1987 ACT

  27.  If cigars, cigarettes or pipe tobacco come within the definition of a "defective product" then (subject to certain statutory defences) Part I of the 1987 Act makes the producer or importer of the product liable for any damage proved to have been caused by it.

  28.  There are a number of difficulties in applying Part I to tobacco products. First, a product contains a defect only if "the safety of the product is not such as persons generally are entitled to expect". Note the words "entitled to expect". Safety is thus not to be judged by that which a consumer in fact expects, but rather is to be judged by some objective standard which the Courts regards as the minimum that a member of the public is entitled to expect. For those purposes, Section 3(2) requires a Court to take into account all the circumstances, including the manner in which and purposes for which the product has been marketed, its get-up, the use of any mark in relation to the product and any warnings with respect to the product, and what might reasonably be expected to be done with or in relation to the product.

  29.  Many products have inherent risks, but are not defective. Take a sharp kitchen knife. It may be that the public are not entitled to expect some substances (eg pharmaceutical drugs for use in treating serious conditions) to be free of side-effects. Indeed, the more serious the condition being treated by the drug, the greater the side-effect which might be tolerated without breach of the Section. It is certainly open to argument whether or not cigarettes and tobacco in respect of which there is a warning "cigarettes/tobacco can seriously damage your health" may mean, given the expectation of the public generally that cigarette smoking is a harmful activity, that such tobacco products are not necessarily defective. More subtle dangers—that to the circulation, of sterility, to diseases such as Berger's Syndrome, may arguable require specific warnings.

  30.  However, if a tobacco product is thought to be defective under Section 3 of the 1987 Act, liability only applies where damage resulting from its use is proved by a Plaintiff. It is likely to be very difficult indeed to show that circulatory problems, sterility, cardiovascular disease, and even some cancers have been caused or materially contributed to by smoking tobacco. (By contrast, most lung cancers, adenocarcinomas apart, are likely to be tobacco specific.) The difficulty of showing that tobacco is defective within the meaning of the Act, rather than inherently dangerous, coupled with the difficulty of showing that a specific condition was caused or contributed to by tobacco smoking is compounded by problems over limitation periods within which a claim must be brought. There is a latency period before any condition which may be caused by smoking tobacco products becomes apparent. If this period is longer than 10 years from the date of supply of the defective product in question, then liability is excluded. (Section 6 of the Act, Schedule 1, paragraph 1, inserting Section 11A into the Limitation Act 1980.) Next, a claim has to be proved as against a specific Defendant. Claims cannot be pursued against the "tobacco industry" generally. There are very considerable practical difficulties in showing that it was the tobacco product of any one particular producer or importer which caused the damage; or of disentangling the relative causative potency of the various products which a smoker may have consumed over a smoking lifetime. As if this was not enough to place insuperable hurdles in the path of any claimant, any action may be met with the defences of contributory negligence or "volenti"—that smoking was a voluntary act of the claimant. This latter defence of course depends upon the smoker having sufficient knowledge of the relevant health risk to make a conscious decision to run that risk. Finally, if the part of the tobacco thought to cause the harm is either nicotine or tar (the dry particulate matter contained in tobacco smoke) the Defendant may be able to use the "Budden" defence, to which I shall now turn.

THE "BUDDEN" DEFENCE

  31.  In Budden v BP Oil and Shell Oil [1980] JPL 586 the Court of Appeal struck out an action in negligence for alleged damage to children caused by the ingestion of lead contained in petrol fumes. A limit was prescribed by legislation. The evidence was that the producers of the petrol kept the lead content within the maximum permitted by the Regulations. It was held that in consequence they could not be made liable in negligence: the appropriate standard required of the Defendants was for Parliament, by the Minister, to lay down, and not for the Courts to assess as reasonable or unreasonable in the light of the evidence in any case.

  32.  The argument is equivalent to saying that where regulation permits a certain level of toxic substance in a product, the producer of that product cannot be held liable for damage done by that component of the product providing that he has not exceeded the permitted limit.

  33.  On the face of it the "Budden" both prevents any action being taken under the relevant Act in respect of the past supply of tobacco products which have complied with limits as to tar and nicotine content, and makes it difficult to succeed in a claim based upon the sale of non-compliant tobacco products prior to the first imposition of any such limits.

  34.  I do not however, consider that the "Budden" decision affects the Secretary of State's power under Section 11 to further limit or control the content of tobacco products, their constituents, or even to ban the sale or distribution of specific tobacco products (as in the case of oral tobacco products). I think, however, that if tobacco products were to be banned such that no tobacco product at all (not pipe tobacco, cigars, cigarettes nor oral tobacco) could be sold, this would probably require primary legislation. This is because the point (as to complete ban) was not resolved in ex parte United States Tobacco International Inc. A dictum of Taylor LJ suggests that such a ban might not be within the scope of Section 11; and Section 11 arguably does not apply to goods which carry an inherent risk that has been reduced to the minimum possible, which will be the case with some tobacco products (or so it will be claimed).

SUMMARY

  35.  Statutes provide for control mechanisms over tobacco production, distribution, sale and advertising. Thus:

(i)  tobacco sale to the under-16s is regulated by statute;

(ii)  cigarettes may not be sold loose;

(iii)  the Secretary of State for Health may introduce regulations regulating the composition of tobacco products, their packaging, their testing and inspection to ensure they conform with regulations, appropriate warnings to be attached to them, and indeed may prohibit their supply, or the offering to supply, agreeing to supply or exposing for supply any tobacco products.

  36.  I consider that any complete ban upon the production, distribution or sale of any tobacco product probably (though not certainly) requires primary legislation. It is certainly the prudent course, from a legal perspective.

  37.  Any regulation requires prior consultation with the manufacturers, producers, suppliers and other interested parties.

  38.  If regulated, under Part II of the 1987 Act, control is by means of a mixture of criminal penalty (for some offences) and prohibition and suspension notices with criminal consequences for contravention in respect of others, which require the initiative of an enforcement authority (for all practical purposes in the present context, a local authority).

  39.  Control by individual action, claiming that damage has been suffered as a result of tobacco being a "defective product" under Part I of the 1987 Act is theoretically possible, but in practice faces so many hurdles as not to be worth attempting for any person claiming to be injured by the effects of tobacco: and the same logic is liable to defeat any claim at common law arising out of the sale of products as presently marketed[32].

  40.  I should be happy to advise further on any matter which arises if requested to do so.

Brian Langstaff QC

1 February 2000

23   Section 10(2). Back

24   Food, motor vehicles, drugs and medicines are also amongst the exclusions. Back

25   My underlining. Back

26   My italics: the phrase "any . . ." indicates the breadth of this phrase. Back

27   By Section 11(2)(a) to (k). Back

28   I have considerably summarised the effect of Section 11(2) to which full reference should be made if this becomes a matter of importance. Back

29   Section 12: supplying, offering or agreeing to supply, exposing or possessing any goods for supply; failing to carry out a particular test or use a particular procedure in connection with the making or processing of the goods with a view to ascertaining whether they satisfy requirements of regulations; contravening a provision requiring information of a particular kind to be given in relation to goods, and failing to give information to another for the purpose of enabling that other to exercise functions under the regulations (eg of a regulatory sort) by prohibition notices (prohibiting supply, offer of supply, or exposure for supply, or requiring a warning of the dangers of goods supplied): contravention of such prohibition notice being an offence; and suspension notices suspending the recipient from supplying, offering to supply, agreeing to supply or exposing for supply any goods in respect of which any of the safety provisions have been contravened. Back

30   Section 48, 1987 Act. Back

31   SI 1992 No 3134. Back

32   This does not necessarily exclude actions based upon consumption of tobacco products 20 or 30 years ago, but funding is unlikely to be available following the claimant's failure to advance beyond a preliminary stage in Hodgson and Others v Imperial Tobacco and Gallaher early last year. Back