06 FEB "-!I B A T 3PD FLC,:P Q~-' P. 3.14
5 th February 1991
THE AUSTRALIAN F RATION OF CONSUMER ORGANISATIONS
INC
VS
THE TOBACCO INSTIT= OF AUSTRALIA
BACKGROUND PAPER
This case is about the rights of an Organisation
to express an opimon on
a controversial subject based upon its own
analysis of the evidence.
In July 1986, the Tobacco Institute of Australia
(TIA) took out a
half-page advertisement in The Australian
Financial Review, The Australian
and The Sydney Morning Herald titled *A menage
from those who do-to
those who don!r.
Shortly after its publication. the Australian
Federation of Consumer
Organisations (AFCO) com= to the Trade Practices
Co mission%7.~)
about some aspects of the ertisement that AFCO
considered were or
Misleadin AFCO urged the TPC to instigate an
immediate prosecution of
the TIA. Ve TPC contacted theTIA with AFCO~'s
complaints.
Following correspondence between the TPC and the
TIA a second
advertisement was published by the TIA mi January
1987. The wordine of
td on the -R!and
this second advertisement was agre by both the TIA
and ;rP
the TPC accepted publication of the corrective
advertisement as satisfying
the complaint it had received.
Ile TPC decided not to instigate any proceedings
against the 171A.
Despite this, AFCO, approached the TIA directly
seeking an undertaking from
it that it would not repeat certain statements in
the first
advertisement. Ile 71A declined to give such an
undertaking to AFCO,
although it indicated that it W no plans to
republish the ad.
AFCO then applied to the Federal Court of
Australia alleging a breach Of
Section 52 of the Trade Practices Act and seeking
an injunction to prevent
the TIA from repeating a statement conWned in the
fairst advertisement
That statement was:
"There is little evidence and nothing which proves
scientifically
that cigarette smoke caus disease in non-smokere.
C)
OD
Ln
BAT Industries document for Province of British
Colurnbia 23 April 1999


0,. F=-- '91 1-1--:~'.~ T 3PD FUX-P L171 5a16
Section 52 of the Trade Practices Act makes it an
offence for corporations
to "engage in conduct that is misleading or
deceptive or is lacely to
mislead or deceive'.
AFCO argued that tbisparticular statement was
false and hence was
"mi-1-ding ~nd deceptive'. The TIA defended the
statement as an opinion
based upon its review of the scientific evidence.
Much of the legal argument on both sides concerned
the meaning of terms
used in the advertisement such as "little",
"evidence', "scientificprocir-
and 'disease% 'nA argued Um words such as %We',
"evidence
'Proves', *sciendfically* and 'cau es' are each
expressions of
conclusions which can only ever be matters of
opinion.
The case also involved a consideration of the
weight which should be given
to thd scientific studies concerning environmental
toba smoke (Imown as
ETS).
Mr Justice Morling of the Federal Court of
Austral~ be an hearing the
case in November 1989. 'Me actual hearing occupied
9rdays of Court time
during 1989 and 1990 including 9 days in London.
'ne list submission was
completed shonlv before Christmas. Since t1im =c
Justice Morling has
been completing his written decision on the case.
7 be nA called 8 expert witnesses. 'nose witnesses
were:
1. Professor Richard Tweedie.
I Professor Phillip Witorsch
3. Dr Sven Eric Torbiom MImfors.
4, Mr George Brian Leslie.
5. Professor Gary Louis Huber.
6. Professor Emeritus John Wesley Clayton.
7. DrNLfixwell William Layard.
8. Professor Brace Albert Warren.
Each of the experts testified that the statement
made in the advertisement
was an accurate characterisation of the evidence
concerning LrrS.
AFCO called a similar number of eaperts in support
of AFCO's contention
that the statement was false and misleading.
Darin th b i any of AFCO's Witnesses agreed that
expert opinions
9 . e e;~. m
maylegitimate =cr in the interpretation of me
scientific evidence
concerningm
The 71A submitted that it was the nature of proper
controversy that those
with different opinions should and will criticise
each other's opinion,
rather than attempt to stifle their expression, as
AFCO was seemingly
trying to do.
What the 'IIA was arguing for in its case was the
freedom to express its
n. It is exactly this freedom on which genuine
scieniffii and other
=
crual enquiry depends.
P. 4/4
CN
CO
011
BAT Industries document for Province of British
Columbia 23 April 1999