LANGUAGE

Re Australian Federation of Consumer Organisations Inc v. The Tobacco Institute of Australia Ltd

These proceedings relate to a newspaper advertisement published by the Tobacco Institute of Australia (TIA) on July 1, 1986, which stated that "(T)here is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers;"  and"The London Times reported findings from the Institute of Cancer Research in Surrey, England ... that 'passive smoking' for life-long non-smokers causes no significant increase in the risk of lung cancer, bronchitis or heart disease ... The Institute's conclusions are based on a wealth of statistical detail from a study involving 12,000 people."

The plaintiff sued the TIA alleging that the advertisement was misleading and deceptive in breach of s52 of the Trade Practices Act.

Morling J upheld the plaintiff's claim. Following a comprehensive review of the evidence, His Honour found that at the date of the advertisement there was compelling scientific evidence that cigarette smoking causes lung cancer in non-smokers, and therefore that the statement in the advertisement was erroneous when first made and continued to be so. He further found that the statement that there was little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers was demonstrably false in 1986 insofar as it applied to respiratory disease in children. Morling J also found that the statement was misleading and deceptive insofar as it applied to the disease of asthma.

Morling J decided that the plaintiff was entitled to injunctive relief but that an order requiring the TIA to publish corrective statements was inappropriate due to the length of time that had passed since the original advertisement.

The TIA appealed this decision unsuccessfully, although the Full Court set aside the injunctive relief and instead made declarations. (See, further: Re Tobacco Institute of Australia Limited v. Australian Federation of Consumer Organisations Inc [1992] FCA 630 (17 December 1992); and Re Tobacco Institute of Australia Limited v. Australian Federation of Consumer Organisations Inc [1993] FCA 83 (10 March 1993)).