'Lawsuit against tobacco industry is low-hanging fruit'

On the guiding role of law for a healthy society

Would it be possible to sue the tobacco industry for violating human rights, as Milieudefensie did with Shell in 2019? Brigit Toebes, full professor of Health Law and scientific director of the Aletta Jacobs School of Public Health, believes so. In this interview, she talks about the 'guiding role' of law to promote health, the importance of prevention and the right balance in regulation. 'We need to put human values and dignity above economic benefits.'

Text: Jelle Posthuma

'The Netherlands is an interesting legal laboratory,' Brigit Toebes starts. 'In recent legal cases, companies are being brought to their social responsibility by court decisions. Based on human rights, Shell now has an obligation to reduce CO2 emissions. As for Shell, it makes a product that is useful in terms of mobility; tobacco is of no use to us at all. I think a case like this against the tobacco industry, for example on the basis of children's rights, is low-hanging fruit.' 

In her work, the professor of Health Law looks at health issues through the lens of the law. Toebes focuses in particular on the international context. 'Think of the WHO Framework Convention on Tobacco Control. I study how we implement this treaty in the Netherlands.' Health law traditionally focuses on healthcare and its regulation, the professor points out. ‘However, the big issues for public health lie outside the hospital.'

Unhealthy incentives

According to Toebes, the law can play a guiding role in promoting healthy behaviour and reducing risks, such as smoking, alcohol, fast food and lack of exercise. 'In my work, I focus specifically on this guiding role, partly because it has been greatly underemphasized by neoliberal cabinets in recent decades.' Nowadays, the emphasis is on the autonomy of people, who are entitled to make their own decisions about their own health, says the professor. ‘Yet, how autonomous are we to make our own decisions in an environment where there are all kinds of unhealthy incentives, an environment that is heavily influenced by industry? That is why we need to put human values and dignity above economic benefits.'

To promote a healthy living environment, regulating unhealthy products and behaviour is imperative, argues Toebes. 'It is often seen as patronising, when in fact, we take away freedom by putting people in an unhealthy living environment.' It is also written in the Constitution, the professor stresses. 'Article 22, paragraph one: the government must promote public health in the Netherlands. And then there are also all kinds of international treaties. Therefore, the Netherlands will have to deliver and regulate according to proven effective measures.'

American conditions

The professor points to the four P's: product, price, place, and promotion. 'We don't have to look far for effective measures. A tenth of smokers quit after the 2023 excise duty hikes. You do the math.' Toebes also cites the packaging of harmful products as an example. 'The cigarette packaging has a deterrent effect. What if we introduce the same for soft drinks? That's quite a step. But if we could use it to curb unhealthy products? The Netherlands is struggling with an obesity pandemic; more than half of adults are overweight. These are almost American conditions.'

However, regulating products remains a quest, says Toebes. It is a search for the sweet spot between banning, regulating and liberalising. The professor points to the spectrum of policy options: from a total ban to commercial regulation, and strict regulation in between. 'Alcohol, for example, is situated more towards the unregulated, liberal market, while smoking is moving towards a strictly regulated model.'

Prohibition

Recently, Toebes and fellow researcher Michelle Bruijn (associate professor at the Faculty of Law) were awarded a grant from science funder Zonmw for a study on alcohol regulation. A PhD student has since been appointed, who will investigate the best way to regulate alcohol. 'People get looser and cheerful from alcohol. However, the ease with which alcohol is consumed at every fun or social occasion is problematic. In fact, there is also a lot of harm, to yourself and the environment.'

The PhD student's research on regulation will examine proven effective measures in an international context, Toebes continues. 'We suspect that prohibition is not going to work. But there are other, working models. The Scandinavian countries, for example, are taking more steps than the Netherlands. I can imagine alcohol eventually disappearing from supermarkets.'

Crime

As chair of the MDMA State Committee, Toebes was also concerned with regulation, in this case of ecstasy. In an XTC pill, MDMA is the active ingredient. Early June, the report 'Beyond ecstasy (Voorbij de extase, ed.)' was published, advising the (upcoming) cabinet. 'As chair of the committee, I learned an awful lot about drugs,' says Toebes. 'You can hardly compare products like alcohol and ecstasy. In a way, it is comparing apples and oranges. Regulating drugs is a very difficult issue, because it involves criminality.'  

The state committee recommends that XTC should remain on List I (hard drugs), despite its relatively low health risks. The Netherlands is a major exporter of XTC, Toebes explains. Ninety percent of MDMA produced here crosses the border. 'If MDMA is put on the soft drugs list, you only regulate a small part of production. Furthermore, the judicial system gets fewer 'tools' to prosecute criminals, including punishing preparatory acts. You won't solve the crime problem—the entanglement with the upper world, the recruitment of young people, the drug waste—with legalization.’

Therapy

'With our advice, the Netherlands will not become the naughtiest boy in class,' says Toebes. 'That may not be a popular advice for people who want to follow a different path. But regulating drugs requires an international approach, for instance, through the EU or the UN. If MDMA comes under a softer regime globally, the Netherlands will also have room to maneuver.' However, the committee does advocate the rapid deployment of MDMA in the therapy of PTSD patients. 'There is promising research from the US on MDMA use for people with PTSD. Half no longer qualify as PTSD patients after therapy. Therefore, we recommend a large, naturalistic study to be conducted in the Netherlands as soon as possible.’

The approval of the European Medicines Agency, however, will take years, Toebes stresses. 'Until that time, we advise the government to be keen on the grey area of untrained commercial providers of MDMA therapies. People with mental health problems are vulnerable, and it is worrisome if they fall into the hands of untrained therapists.'

For recreational use, Toebes stresses the importance of prevention. And this, according to the professor, is something the Netherlands is very good at. 'We may not be the naughtiest, but we are certainly the most innovative boy in class. I am very impressed by the widespread policy in the Netherlands, aimed at prevention, harm reduction and non-criminalisation of the consumer. This is a great asset.'

Prevention pays off

Not surprisingly, Toebes makes an ardent plea for prevention in general. The recently announced cuts to prevention in the new cabinet's general agreement are worrying her. 'With investments in (elderly) care you achieve short-term results. That is less true for prevention. In the long run, however, prevention produces a healthy society, which means we will need less care in the future. In other words: prevention pays off.'