Vale Trevor Morling – the Passive Smoking Judgement of 1991, 10/6/20

Judge Trevor Morling has died at the age of 92.

He was the author of the famous ‘Morling Judgement’’’ which sent a shock around the world in 1991 as it stated that ‘passive smoking was potentially lethal’.

This has to be put in context if its significance is to be duly recognised.  The seminal article about smoking causing lung cancer had been written by Doll and Hill in the British Medical Journal in 1950, and many articles followed in the 1950s linking smoking to a great many diseases.

In 1961, the Royal College of physicians, concerned that the UK government had not done anything to curb smoking, commissioned their landmark report ‘Smoking and Health’ in 1962.  The US Surgeon-General did the same, resulting in a similar report in 1964.

The tobacco industry had to decide whether it would scale down its production, or tough it out and take the money.  It did secret research which confirmed that burning tobacco produced carcinogens and other harmful products which could not actually be removed.  There was a change of personnel and ethos.  Prior to 1950, tobacco was a legitimate product like anything else.  After the research was confirmed, the decision to keep selling and to deny the effects and hinder government action was the strategy that everyone working at the top of the tobacco industry had to accept.

Tobacco use was mainstream.  45% of all US adults smoked in 1954 (Statistica- Gallup) and consumption peaked in Australia in 1963.  People smoked everywhere. There were no smoke-free areas in bars, restaurants or anywhere else.  It was normal for house guests to light up and then ask ‘where is the ash tray?  The Tobacco industry was keen to maintain this situation and talked of the need for ‘courtesy and tolerance’ between smokers and non-smokers, which was code for ‘doing nothing political’.  Smokers all ‘chose to smoke’, which of course meant that they had voluntarily (and knowingly) assumed the risk and consequences of their behaviour.  The tobacco industry also gave money to political parties, just asking for a secret promise that there would be no legislation against them before the next election.  The medical industry were unaccustomed to this, and kept giving advice that was ignored, with a few significant voices such as Dr Nigel Gray of the Victorian Anti-Cancer Council and Dr Cotter Harvey of the Thoracic Society doing what advocacy they could. 

Non-Smokers Rights groups were the main driving force for change in the US in the 1960s and 1970s  arguing that people had a right not to breathe smoke.  The health charities, Cancer Councils, Heart Foundations were very keen to be non-political as their core business was raising research funds. Real activists soon discovered that their opponents were not the smokers, but the industry, who claimed that there was no proof that passive smoking was harmful, and that courtesy and consideration was all that was needed.  Their public stance was referred to as the ‘tightrope policy’.  They had to admit that many people believed that tobacco was harmful, as they had to contend that the smokers knew the risk that they were taking and hence could not sue them for deceiving them. But they also had to claim that they did not know that smoking was harmful, so that they were no liable for selling unsafe goods.  It was absurd, but it continued. 

The tobacco industry as well as being very politically active were the major advertiser, tobacco being second only to food.  This meant that the media were more reluctant to run stories that would affect their advertising revenue.  Outdoor advertising was also ubiquitous with over 50% of billboards being for tobacco, reminding people to smoke, and especially plastered all over convenience stores where cigarettes were sold.

In 1981 Prof Takeshi Hirayami published a seminal paper showing that non-smoking wives of smoking husbands got more cancer than wives of non-smokers (Br Med J (Clin Res Ed) 1981;282:183).  At last there was substantial medical evidence of the harm of passive smoking.

In Australia the medical groups had done quite good advocacy and in NSW a Transport Minister, Pat Hills, simply banned smoking on buses and trains in 1977, but pubs and clubs knew that smokers drank and gambled more than non-smokers, so they took the money from the tobacco industry and lobbied hard against smoke-free indoor air.  The restaurant industry followed them, somewhat lamely.

But a breakthrough came in 1979 when 3 activists, Bill Snow, Ric Bolzan and Geoff Coleman formed BUGA UP (Billboard Utilising Graffitists Against Unhealthy Promotions).  Coleman had studied political economy, and saw the issue as the tobacco industry killing people for money.  BUGA UP saw irresponsible and misleading advertising as the major vehicle for the promotion of products that had no intrinsic worth, tobacco being the leading example.  They wrote on billboards, changing the wordings in satiric and humorous ways, and signed their work, BUGA UP, which was an invitation for all to copy.  They also did street theatre, often concerned with disrupting tobacco promotion activities in supermarkets or malls.  This had an immense direct effect as the billboard posters were only being changed every 3 months and the leaflets and street theatre were amusing.  There was a lot of popular support as most people saw that smoking was harmful, and governments were too craven to act.  There was also a lot of publicity when Coleman and Neville Biffin were arrested in 1981 and charged with defacing a billboard.  They were convicted in 1982 and fined, but praised by the judge (Daily Telegraph 26/2/82) and given a light penalty, which sent a strong message.  It also sent a shot around the world by making all other tobacco activism seem moderate by comparison.  Australia’s activism was seen as more direct with a ‘Robin Hood’ flavour, but was also more conspicuous because it was against the ubiquitous tobacco billboards, and targeted the industry directly, rather than the more subtle and legalistic approach of the non-smokers’ right groups who had previously been the front line against the industry.  It might be noted that at the 5^th World Conference on Smoking and Health  in 1983 there were no scheduled sessions on political action or advocacy, and the first meeting was convened by renowned Californian activist Prof Stan Glantz.  The presentation on BUGA UP had to be repeated as the room was not large enough for the people who had wanted to attend.  The medical system was becoming energised.

The tobacco industry was very demoralised by this.  They had set up a lobby group, pretentiously called the ‘Tobacco Institute.’  But this was re-energised by John Dollisson who was there from 1983-87. 

In 1983 the Western Australian lower house supported a private member’s bill by Dr Tom Dadour to ban tobacco sponsorship of sport, but an energetic campaign led by Dollisson and using sporting bodies who received money from tobacco, defeated this in the upper house (Musk, BMJ Vol 290 25/5/85). 

After his successful Industry fight against the WA Dadour bill, Dollisson’s feisty style set the tone for the tobacco struggles of the 1980s.  He was physically strong and in debate would cram a number of aggressive arguments into each sentence, such as,  ‘You are treating the smoking causes disease hypothesis as fact, then want to even say that passive smoking is harmful, and smoking is addictive and the advertising get the kids and then you want to tell people how to live their lives and trample on their rights and then you want the government to enforce a nanny state for you.’  (This is not a direct quote, but an example of how his speech was structured).  Assuming that he was interrupted at this point, as he would not stop if he were not, the tobacco control advocate would then be able to only answer one of the points already raised.  But Dollisson’s aggressive style eventually got him into trouble, with the Trade Practices Commission, prohibition of ‘misleading and deceptive conduct’ being used against one of his advocacy ads. Then the Australian Federation of Consumer Organisations bravely took him on.  The story is told by Stacey Carter (Tobacco Control- BMJ Issue 12 Suppl 3):

In July 1986 he [Dollisson as CEO of the Tobacco Institute (TIA)] placed an advertisement in the national press entitled “A message from those who do…to those who don’t”²⁹ in which he claimed “there is little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers”.³⁰ Early in 1987, Dollisson placed a “followup” ad for the TIA, as demanded by the Trade Practices Commission, which among other things stated that the TIA did not accept that their original advertisement was misleading.³¹ This action triggered a six year legal war between TIA and the Australian Federation of Consumer Organisations (AFCO), at substantial cost to the TIA.

On 7 February 1991 Justice Morling decided that the TIA “had engaged in conduct that was misleading or deceptive” and banned the TIA from speaking publicly on ETS.^40,41 On appeal the injunction was lifted, but the court granted a declaration that the advertisement was misleading and deceptive contrary to the Act and the TIA were ordered to pay a large proportion of AFCO’s costs.

The ‘Morling Judgement’ as it was termed was the first time in the world that passive smoking had been held by a court to be harmful, and this rang around the world.

Dollisson left the Tobacco Institute and went to Philip Morris where he helped the campaign against the Victorian Government’s Tobacco Act of 1987, which raised the State tobacco tax and replaced tobacco sponsorship money as well as promoting health (which replaced tobacco advertising from the advertisers point of view) and also funded medical research.  The Victorian legislation, effectively paid off the tobacco industry’s bought acolytes, and the aggressive approach to advocacy by Dollisson in Australia was seen as backfiring. 

The decision also set the precedent for the test case Scholem v NSW Dept of Health, where a psychological counsellor successfully sued for workplace tobacco smoke exposure in May 1992.

Australia has been drifting in its tobacco control endeavours of late, but Trevor Morling will be remembered for his contribution, as well for the many other achievements cited below.

www.smh.com.au/national/chamberlain-royal-commission-judge-was-a-lawyer-s-lawyer-20201006-p562hk.html