What is being described as the world's first class action lawsuit on behalf of people who developed lung cancer from smoking menthol cigarettes has been initiated by Israel's leading anti-tobacco attorney, Amos Hausner, The Jerusalem Post has learned.
He is representing the family of a Rehovot mother of four who died of a tumor at age 47 after many years of smoking Dubek's Montana brand of cigarettes. He is also acting on behalf of an estimated 3,000 other menthol-cigarette smokers who developed cancer here during the past seven years. The statute of limitations on a manufacturer's responsibility for damage caused by its products runs out after seven years.
The Jerusalem lawyer is asking the Central District Court to recognize the case as a class action suit against Dubek - Israel's largest tobacco manufacturer - for NIS 3 billion. It will probably be several months before the court gives its response.
Research conducted by tobacco companies a decade or more ago to identify additives that increase tobacco addiction showed that menthol did the trick, and the companies made a special effort to market cigarettes with this additive.
Menthol not only gives smokers a "more pleasant" feeling in their mouths and throats, but also keeps tobacco smoke - with its many toxins - inside the lungs longer, making it even more dangerous.
The facts of increased toxicity have been confirmed by Prof. Ben-Ami Sela, director of the pathological chemistry institute at Sheba Medical Center in Tel Hashomer. Foreign research has shown that African Americans become even more addicted to menthol cigarettes than whites do.
The deceased woman, who began smoking cigarettes at 17 and whose own daughter copied her behavior by starting to light up at 13, died four years ago. She started with non-menthol cigarettes and then switched to Montana - smoking up to two packs a day without realizing that menthol caused them to be more addictive and made it very difficult to quit.
According to the lawsuit, Israeli law forbids adding any foreign ingredient to cigarettes. The fact that menthol is added without the product's label informing customers that it makes them more addictive is an additional violation, the lawsuit contends.
The suit further argued that Dubek was guilty of "misleading consumers" by not warning that menthol additives make their products more addictive. Consumer protection laws require a manufacturer not to mislead the public, not only by action but also by omission.
The woman wanted to quit smoking Montanas but found herself unable to stop even when she was pregnant and breastfeeding. She had long thought that menthol cigarettes were "less dangerous" than ordinary ones because they did not taste so bad. Menthol additives, in fact, induce young people to start smoking, experts say.
She tried smoking-cessation courses and holding a plastic "cigarette" in her mouth. When people who managed to kick the habit advised her to stop smoking, she cried and said she was unable to. She was diagnosed with lung cancer in 2004, underwent two operations to remove tumors and then her whole right lung, as well as radiation treatments. She was confined to a wheelchair and suffered great pain before she died on January 1, 2005.
In 2007, the Florida Supreme Court approved a class action suit on behalf of smokers who were damaged by their habit. A jury trial found the tobacco companies responsible for causing several diseases, including lung cancer, and found that the companies' actions justified punitive damages.
Under the Florida court decision, each smoker may file an individual lawsuit on the basis of these jury findings. At present, there are about 10,000 such individual lawsuits resulting from that case, and in two of them, the plaintiffs have already won compensation in the millions of dollars. The Florida case inspired Hausner to launch the first menthol-cigarette lawsuit in the world.
