IN a world first, an Australian federal judge, Justice J. Morling, ruled last week that tobacco advertisements cannot claim a lack of evidence for the health risks of smoking on nonsmokers. The case revolves around an advertisement produced by the Tobacco Institute of Australia in 1986. The ad said, in part, ``Lately, however, many nonsmokers have been led to believe that cigarette smoke in the air can actually cause disease. And yet there is little evidence and nothing which proves scientifically that cigarette smoke causes disease in nonsmokers.''
The ad sparked a challenge from the Australian Federation of Consumer Organizations (AFCO), and in 1987 the Institute agreed to run a correction. However, the second ad stated, ``Should lawmakers wish to take legislative measures with regard to passive smoking, they will, for the present, not be able to base their efforts on a demonstrated health hazard from passive smoking.'' The consumers group took its challenge to court.
The proceedings dragged on for four years and included court sessions in London to hear expert testimony. Only research available up to 1986 was admitted into evidence. This included the United States Surgeon General's 1986 report on smoking and health.
Richard Travers, a lawyer who represents the Tobacco Institute, says his group will appeal the decision. He says it is ``a serious blow to the principle of freedom of speech in Australia.'' Justice Morling counters that the advertisement is not an opinion, but an ``assertion of the state of the evidence on the question of whether cigarette smoke causes disease in nonsmokers.''
Morling said the Institute's claims would be misleading: ``Active smokers are likely to be mislead or deceived by the statement into believing their smoking does not prejudice the health of nonsmokers, particularly small children. Nonsmokers are likely to be deceived or mislead into believing cigarette smoke does not affect their own health or the health of their children.''
Almost immediately after the decision, Peter Collins, the New South Wales minister for health, said he would push for tough antismoking legislation, including efforts to restrict smoking in public places and preventing advertising and promotion. Bob Carr, the leader of the opposition, said he would also sponsor tough legislation. Antismoking advocates promised to take legal action against public places which did not ban smoking.
Morling is likely to enjoin the institute from making further assertions about the effect of smoking on nonsmokers when he issues his final orders in a few weeks. He will also award legal costs to the plaintiffs.
AFCO, which brought the suit, was pleased with the decision. ``It is a great victory for consumers and those opposed to the tobacco industry,'' says Liza Carver, an AFCO spokeswoman.