Law to counter tobacco companies in the Arab region: a look at Jordan and the United Arab Emirates

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Int. J. Economics and Business Research, Vol. X, No. Y, xxxx 1
Copyright © 20XX Inderscience Enterprises Ltd.
Law to counter tobacco companies in the Arab
region: a look at Jordan and the United Arab Emirates
Mohammad F.A. Nsour*
University of Jordan,
Amman, Jordan
and
United Arab Emirates University,
Al Ain, UAE
Email: mohammad.nsour@uaeu.ac.ae
Mutasim Ahmad Alqudah
United Arab Emirates University,
Al Ain, UAE
Email: mutasimahmad@hotmail.com
Abstract: Many countries have endeavoured to limit the consumption of
tobacco by enacting laws that impose restraints on its use. The Framework
Convention on Tobacco Control 2003 (FCTC) is the first international treaty
that addresses tobacco supply and demand measures and establishes essential
measures capable of reducing the prevalence of tobacco use and exposure to
tobacco smoke. Jordan and the United Arab Emirates (UAE) ratified the FCTC
respectively in 2004 and 2005 and they enacted legislations that aim to reduce
tobacco consumption in both countries. However, the issue of tobacco control
in Jordan and the UAE has been both controversial and challenging as tobacco
use in Jordan and the UAE remains very high. This paper examines whether
both countries have adopted legislation that is compatible with their
international obligations, particularly, the FCTC and whether it is possible to
sue tobacco companies in the aforementioned countries to seek injunction and
damages. We conclude that tobacco litigation against tobacco companies is
possible, by either individual litigants or governments or other legal persons
who suffered injury from tobacco producers.
Keywords: tobacco control; FCTC; litigation; liability; Jordan; United Arab
Emirates; UAE.
Reference to this paper should be made as follows: Nsour, M.F.A. and
Alqudah, M.A. (xxxx) ‘Law to counter tobacco companies in the Arab region:
a look at Jordan and the United Arab Emirates’, Int. J. Economics and Business
Research, Vol. X, No. Y, pp.xxx–xxx.
Biographical notes: Mohammad F.A. Nsour is an Associate Professor in Law
at Jordan University in Amman, Jordan. He is currently on a leave at the United
Arab Emirates University. He is specialised in international trade law.
Mutasim Ahmad Alqudah is an Assistant Professor of Commercial Law at the
United Arab Emirates University. He is also admitted as an attorney at law in
Jordan. His area of practice covers arbitration, protection of foreign investment,
corporate law, and telecommunication and information technology law.

2 M.F.A. Nsour and M.A. Alqudah
1 Introduction
Tobacco is a substance that is consumed worldwide and in the Arab world specifically.
There is a consensus that tobacco is addictive and lethal. Tobacco companies themselves
admit that tobacco is harmful and causes fatal communicable and non-communicable
diseases (NCDs). There are also consequences for foetuses, infants and children, such as
sudden infant death syndrome and blindness (Jakab, 2010; Folan and Spatarella, 2014).
Moreover, tobacco is lethal to non-smokers who are exposed to second-hand smoking.
Smoking also has a negative social and economic impact by diverting expenditure
from necessities and raising the cost of health care whether for families and individuals or
states.
Many countries have attempted to limit tobacco usage by enacting and enforcing
regulations. Laws mostly do not prohibit smoking per se but require smokers to adjust
their behaviour in order to not jeopardise the health of others. Courts have had a role in
establishing compliance and coming up with proper interpretations to achieve the same
objectives. For example, the Constitutional Court of Macedonia held that a smoking ban
in public places does not violate personal freedoms but merely regulated smoking in
public places to safeguard non-smokers’ rights of health (Miroslav Grcev v. Stamen
Filipov, 2008). Likewise, the Supreme Court of Nevada rejected a claim that an indoor
smoking ban constituted an unconstitutional taking of property as the ban does not
deprive the owner of the legitimate use of his or her property (Flamingo Paradise
Gaming LLC v. Chanos, 2009). The court asserted that an indoor smoking ban did not
constitute a taking of the property but solely regulated what could be done with it
(Flamingo Paradise Gaming LLC v. Chanos, 2009). Perhaps most importantly, many
courts around the world have awarded damages to victims of the tobacco industry such as
the Ontario government’s $50-billion lawsuit against tobacco manufacturers for damages
in relation to medical treatment costs for lung cancer patients (Ontario (Attorney
General) v. Rothmans Inc., 2013).
The World Health Organization (WHO) campaigned for and orchestrated the
Framework Convention on Tobacco Control (FCTC). The FCTC has been the first
international treaty that addresses tobacco supply and demand measures and suggests
measures capable of reducing the prevalence of tobacco use and exposure to tobacco
smoke.
After both the United Arab Emirates (UAE) and Jordan ratified the FCTC, they
enacted legislation which encompasses general prohibition on tobacco consumption
indoors (Jordan ratified the convention in 2004 and UAE in 2005, for more information
see the status of the FCTC). The issue of tobacco control in Jordan and UAE has been
both controversial and challenging as tobacco usage in both countries remains among the
highest globally (Belbeisi et al., 2009; Haddad et al., 2011; Al-Houqani, 2018). Given the
high percentage of the population who smoke, the law enforcement bodies cannot arrest
those who smoke in public places, especially if they enjoy some level of immunity such
as judges, public officials and lawyers. To rectify the situation, straight forward steps can
and must be taken.
This research offers a closer look at the legal framework for regulating the tobacco
industry in the Arab world by taking Jordan and the UAE as examples. The first part
looks at the regulatory framework in both Jordan and the UAE. The second part explores
the possibility of suing tobacco companies under the laws of both Jordan and the UAE.
The law component of the equation must be emphasised in order to guide decision

Law to counter tobacco companies in the Arab region 3
makers to achieve better economic and health policies from legislative or litigation points
of view. The third part will highlight some policy considerations for both countries that
must be taken into account when regulating the tobacco sector. All in all, the research
will look at whether Jordan and the UAE have adopted legislation that is compatible with
their international obligations, particularly, the FCTC and whether it is possible to sue
tobacco companies in the aforementioned countries to seek injunction and damages.
2 Literature review
Much has been written and many studies produced on legal control of the tobacco
industry. The research covers economic, legal, medical and other angles of tobacco
industry. Research has been conducted by NGOs, governments, academics and other
professionals (Chaloupka and Laixuthai, 1996; Doll, 1998; Taylor et al., 2000; Rabin,
2001; Collin et al., 2002; Gilmore and McKee, 2005). However, most studies are either
too general or too specific. Research on tobacco control is too general when it deals with
international efforts on tobacco control, mainly agreements, whether bilateral or
multilateral (Zeller, 2000; Joossens, 2001). For example, in 2000, the WHO issued an
extensive report outlining the tactics of tobacco companies in creating loopholes in laws
and undermining international and national regulation schemes (Zeltner et al., 2000). The
report offers suggestions and counter-measures that countries may adopt to mitigate the
science tobacco industries are creating.
The too specific studies are usually tailored to specific countries, particularly in North
America, Europe and Australia. For instance, Hoffman and Tan identified 59 systematic
reviews summarising thousands of studies that focused on the impact of FCTC policies
on regulations (Hoffman and Tan, 2015). Other research, such as that presented by
tobacco companies themselves, has taken an equally narrow approach by targeting
investors and businesses as its audience, offering financial statistics in lieu of taking a
problem-solving approach (Philip Morris Int’l., 2010).
This research is tailored to shed light on Arab countries, particularly Jordan and the
UAE due to the fact the authors are stationed in those two countries. Despite heavy
tobacco use within the Arab region, there have been no serious measures to control the
activities of tobacco companies. This research benefits from all other studies whether
general or specific to explore legal options to offer a better legal framework to regulate
the tobacco industry.
3 The tobacco legislative framework for Jordan and the UAE
3.1 Jordan
Jordan tobacco prevalence exceeds 70% among adults and 34% among minors (WHO,
2016). Jordan ratified the FCTC in 2004 and thus the FCTC became part of the legal and
legislative structure of the country (Status of the FCTC, https://treaties.un.org/pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IX-4&chapter=9&clang=_en). In 2008,
Public Health Law No. 47/2008 was introduced. This Public Health Law is a general
instrument that deals with public health management in Jordan and treats tobacco control
in Chapter 12. The Public Health Law prohibits smoking in public places and public

4 M.F.A. Nsour and M.A. Alqudah
display of tobacco products. It also bans advertising tobacco products and selling tobacco
to minors (Public Health Law, Art. 55). Violation of the provisions related to tobacco is
criminalised. Violations are considered misdemeanours punishable by fines or by prison
which can, and in some instances, had been replaced by fines.
However, the Public Health Law is not the only legal instrument that deals with
tobacco control. Other laws impose certain taxes and fees on tobacco products and their
inputs. These include Customs Law No. 20\1998; the Special Tax Regulation
No. 80\2000; the Development and Free Zones Law No. 2\2008, in addition to various
instructions, decisions and governmental announcements such as the Instructions on
Selling Tobacco on Display No. 1/2015 and the Regulation on Selling Tobacco on
Display No 73 /2013. However, despite these measures, the FCTC has only moderately
influenced the Jordanian Public Health Law (WHO, 2016).
Also, it is worth mentioning that Jordan passed the Regulation of protecting Public
health No. 64/1977, which imposed a prohibition on smoking in public areas [Article (3)]
and a prohibition on advertising any tobacco products [Article (4)]. Also, it is worth
mentioning that the court of cassations, in applying the Regulation of 1977, held that any
contract to advertise such products shall be considered void (Decision Nos. 3266/2006
and 2691/2006).
On the policy level, all Jordanian strategies mentioned health and environmental
protection as national priorities. Yet this has never translated into serious or tangible
measures to control the alarming tobacco prevalence in the country. For example, the
National Agenda 2006–2015 drew a road map for the government’s role in political,
economic, and social development in Jordan (MOPIC, http://inform.gov.jo/en-us/By-
Date/Report-Details/ArticleId/5/2006-2015-National-Agenda). The National Agenda
pointed out that adequate health care is part and parcel of economic development and
social welfare and security. In this respect, the Agenda underlines the importance of
complying with international treaties which call for bringing national legislation into line
with the best international practices.
Pursuant to the National Agenda, the Government of Jordan declared specific related
goals in its 2013–2016 plan, including: reducing the prevalence of non-communicable
diseases such as cancer, diabetes, and hypertension; better management of healthcare
spending; and a higher number of monitoring and early detection programs. Nevertheless,
the 2013–2016 plan did not mention tobacco as a risk factor for the Jordanian economy
and Jordanian’s health.
The Jordanian law on tobacco is scattered in a wide array of legislation and that
makes it ineffective. It applies the very minimum standards of the FCTC and offers a
large margin for tobacco companies to manipulate the system and maintains a high
tobacco prevalence in the country. Jordan, as a country that has been living under
suffocating economic, social and political circumstances, looks at the tobacco industry as
a source of income rather than a threat to its sustainable development (ReliefWeb,
https://reliefweb.int/report/jordan/syrian-refugees-and-challenge-jordan). Our empirical
research and review of the Jordanian legislation regarding taxing and charging tobacco
products could not estimate how much income the Jordanian Government collects from
the tobacco industry. The only admission came from the CEO of Philp Morris in Jordan,
who declared that his company’s income tax alone is over $350 million
annually (www.hala.jo/2018/05/02/المعايطة-فيليب-موريس-تدفع-أكثر-من-350-مل/).
After consulting with the Department of Customs, the Food and Drug Administration and
the Department of Standards and Metrology, we found that tobacco manufacturing

Law to counter tobacco companies in the Arab region 5
machines are not eligible to receive any custom exemptions.(visit to the Department of
Customs in Jordan, 25 March 2017) Custom tariffs on tobacco are 150% on chopped
tobacco plus 16% sales tax. The percentage is 75% on whole tobacco leaves plus 16%
sales tax. Other local produced tobacco products such as cigarettes, pipes, and cigar are
charged 16% tax plus 320 fils (.32 JOD) plus 266 fils (.266 JOD) ad valorem. With
respect to imported cigarettes, the same applies but there is an additional 102% ad
valorem tax. Accordingly, about 78% of the retail price of tobacco goes to the
Government of Jordan (WHO, http://www.who.int/fctc/reporting/annexone.doc).
In that light, the Jordanian law on tobacco has been weak in substance, form and
application. This weakness stems from the government’s desire to collect as much
revenue as possible; hence the enforcement of the Public Health Law is still modest and
largely applied by some dedicated officials. First, the law does not define nicotine or
other tobacco accessories. This vagueness has allowed tobacco companies to exploit this
loophole and introduce and distribute new tobacco accessories and devices such as the
‘heat not burn’ smokeless cigarette devices (Jordanian Cabinet Decision 31/16/11932
3/5/2018). To rectify this issue, the government must add provisions to the public health
law which prohibit the importation, manufacturing and distribution of tobacco
accessories and any device that operates tobacco. By the same token, a wide definition of
nicotine and all tobacco substances must be included in order for them to be covered by
the scope of the law.
Secondly, various licenses are required to operate tobacco enterprises from agencies
such as the relevant municipality, Ministry of Industry and Trade, other agencies
concerned, such as the Ministry of Tourism (Public Health Law, Art. 4). However, the
whole licensing procedure is designed to be an income generation apparatus in lieu of
controlling the high prevalence of tobacco. For instance, nothing in the law explains how
far tobacco trade should be away from hospitals or educational institutions. While this
multi-jurisdictional procedure might serve as a de facto restriction on the tobacco
industry, it could lead to some contradictions as the following point shows.
Thirdly, the laws on public health and particularly on tobacco frequently contrast
(King Hussein Cancer Centre, 2014). For example, the instructions on organising
pilgrims affairs and residences issued by the Ministry of Trusts and Islamic Affairs do not
mention any prohibition on consuming tobacco at pilgrim residences, although the
Department of Fatwas (i.e., Islamic judgments) issued a judgment which declares that
consuming tobacco is forbidden (General Iftaa Department, http://www.aliftaa.jo/
Decision.aspx?DecisionId=111#.W1iybNVKjIV). Simultaneously, and to the contrary,
the instructions require providing ashtrays to pilgrims, which, in fact, establishes pilgrim
residences as places in which smoking is allowed (King Hussein Cancer, 2014). This
happens at the time when both Mecca and Medina have been announced as smoke-free
cities since 2001 (Mostafa, 2014).
Fourthly, tobacco farming is still widely practiced in Jordan. Although the original
Tobacco Law No. 17\1953 has been repealed, no subsequent legislation or laws were
introduced to limit tobacco farming in Jordan and it is still classified as an agricultural
activity.
Fifthly, the law does not explicitly tackle sponsorship of activities and events or
financial support that tobacco companies offer. The law does not specifically address
distributing products that carry the brands of tobacco manufactures or their mother
companies. Accordingly, the social activities of tobacco companies in Jordan are normal.

6 M.F.A. Nsour and M.A. Alqudah
For example, the CEO of Philip Morris in Jordan stated that his company offered more
than 640 scholarships and built two public schools for the government. Similarly, the
government itself invests in tobacco equity such as the Social Security Corporation’s
equities in some tobacco companies, (http://www.awraq.com/uploads/research/
033a1e112edd533f5ef22504ed856594740a1c88.pdf) both of the aforementioned being
against Articles 5.6 and 13 of the FCTC.
Finally, and perhaps most dangerously, tobacco is still one of the sectors that the
government promotes to investors (Jordan Investment Commission, https://jic.gov.jo/
portal/services/JordanInvestmentCommission/Beverages%20and%20tobacco/Tobacco%2
0Production). The Industries and Professions Law No. 16\1953 lists tobacco factories,
workshops, and warehouses among other investments for which the government charges
registration fees. The Jordan Investment Commission which is also the primary FDI
attracting apparatus has announced that:
“Jordan ranks among the most consuming tobacco countries, where the number
of adult smokers from the local population reaches 28 percent which is not
limited to cigarettes only, but includes water pipes and electronic cigarettes and
other means of smoking… The percentage of smokers in the age group 12 to 16
years, reaches up to 26 percent of smokers, with up to 36 percent of the age
group over 25 years.” (Jordan Investment Commission, https://jic.gov.jo/
portal/services/JordanInvestmentCommission/Beverages%20and%20tobacco/T
obacco%20Production)
This proves that Jordan still needs a more serious political will to counter or control
tobacco prevalence. Even when some individual efforts were initiated, there was a
massive outcry and the government shied away from enforcing the law. This is why
smoking is still prevalent and practiced indoors and outdoors. Jordan current bans on
smoking both indoors and in public places are compromised by non-compliance and
violation (Shahzada-Majali, 2015).
On the brighter side, and after a bitter debate in the Parliament, (Obeidat et al., 2015)
the Government of Jordan was able to adopt a wide definition of public places (i.e., the
place(s) where smoking must be prohibited). Jordan is trying to enforce the ban on
tobacco advertisement according to Articles 54 and 55 of the Public Health Law. This
provision is wide enough to encompass all sorts of advertisement through any means,
whether conventional, electronic or by display. However, Article 54 has not been
construed to also ban showing tobacco products in the media, such as in movies or
shows. Moreover, shops and stores still sell tobacco at full display without observing any
restriction. Furthermore, Article 55 also prohibits selling cigarettes as singles and selling
any tobacco products to minors. Other specialised laws deal with protecting minors from
tobacco, such as the Juvenile Conduct Monitoring Law 37\2006, which prohibits any
practice that facilities minors access to tobacco products. This law specifically treats
tobacco products in the same way it treats psychotropic drugs and intoxicants and clearly
outlines the punitive measures (King Hussein Cancer Centre, 2014). It should be noted,
however, that the Juvenile Law has a serious flaw in that it defines a minor as a person
who is older than seven years and younger than 18 years, excluding minors under seven
from protection.
Article 56 of the Public Health Law demands, in conjunction with Article 11 of the
FCTA, the use of pictures or pictograms to form pictorial warning labels (PWLs)
preferably through utilising graphic or shocking images to cover 40% of cigarette

Law to counter tobacco companies in the Arab region 7
packets, (Guidelines for implementation of Article 11, WHO) Shihab et al. (2017)
observed that:
“Jordan followed that single PWL with a replacement set of PWLs which was
launched in early 2013 and continues to be in circulation today. The new set
includes four rotating PWLs covering 40% of the lower back area of the packet
(where 2/3 of the space is occupied by a picture and 1/3 by text, and a thick
border is included within the space), along with a fixed text warning covering
40% of the lower front area. While this set increased the area covered and the
number of PWLs in circulation, it did not introduce other changes deemed
critical to strengthen effectiveness; namely moving the PWL to the upper front
surface of the packet and increasing its size to 50% of the packet area.
Accordingly, despite being one of the first countries to implement PWLs,
Jordan today does not score well on fulfilling FCTC requirements with regards
to Article 11, and lags behind other countries in the region and the world
including late adopters.”
Moreover, Article 11 of the FCTC outlines measures for assessment and review of the
intended impact of packaging, yet Jordan has not introduced any thus far.
All in all, Jordan needs a better synergy of its legislation on tobacco. A serious
revision is needed to treat all the contradictions between the large numbers of
legislations. More critically, Jordan should expand tobacco control by mirroring the
FCTC. It is now timely an appropriate time for Jordan to introduce a new law that is fully
dedicated to tobacco control. The FCTC and its guidelines make it feasible to do this. The
UAE – which can serve as an example – has done so as the ensuing discussion will
reveal.
3.2 The UAE
In general, the UAE’s economy is a dynamic one; it quickly responds to the evolving
needs of the country. Businesses in the UAE, including the tobacco industry, are heavily
regulated. The UAE became a Party to the FCTC on 5 February 2006
(https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IX-
4&chapter=9&clang=_en). Unlike Jordan, the UAE has a law that is designated to
tobacco control (Federal Law No. 15 of 2009, hereinafter Federal Law No. 15). The law
on tobacco control invokes the primary issues regulated in the FCTC namely: restrictions
on smoking in public places; (Federal Law No. 15, Art. 6, 7 and 8) restrictions on tobacco
advertising, promotion and sponsorship; (Federal Law No. 15, Art. 3) warnings on
packaging and labelling of tobacco products; (Federal Law No. 15, Art. 4) and tobacco
farming is explicitly outlawed as per Article 5(1). Moreover, no sponsorship is allowed to
be practiced by any tobacco business pursuant to Article 6 of the law. In line with
Article 11 of the FCTC, the Government of the UAE issued standards for labelling
tobacco products (UAE Standard Specifications Adopting GSO 246/2011). The
Government has also issued, in 2013, regulations pursuant to the Law of 2009, which
details some of the rules mentioned in the law (UAE Cabinet Decision No. 24, 2013).
The Regulation of 2013 filled some of the gaps that existed in the law. The
Regulation banned cooperation with tobacco companies or allowing sponsorship
activities. Health warnings are pictorial and text and cover no less than 50% of the
bottom of tobacco product packaging’s main display areas (e.g., front and back). The
government rotates the warnings ‘as required by the public interest’. Misleading terms
such as ‘light’ and ‘low tar’ are prohibited on tobacco packaging, but other misleading

8 M.F.A. Nsour and M.A. Alqudah
packaging (e.g., colours, numbers and symbols) is not prohibited. With respect to taxes,
105% is imposed on tobacco, and that could lead to a 40% decline in tobacco
consumption in the UAE according to the WHO estimates (Masudi, 2018).
The UAE legislation, however suffers from the following serious issues. Firstly, the
UAE ban on indoor consumption of tobacco is not absolute. Article 12 allows tobacco to
be served indoors in designated areas. Yet such allowance is restricted by zoning
requirements the serving points must abide by (at least 150 metres from residential areas,
worship centres and educational institutions, UAE Cabinet Decision No. 24, 2013,
Art. 13.1). Tobacco serving shops are also subject to strict hours of trade (i.e., 10:00 to
midnight). Similarly, selling tobacco to minors and pregnant women is prohibited (UAE
Cabinet Decision No. 24, 2013, Art.14). Nevertheless, indoor smoking, even restricted, is
a source of passive smoking and can lead to violations and de facto prevalence of
comprehensive indoor smoking.
Secondly, nothing in the UAE legislation prohibits investment in tobacco companies
to be in line with Article 5 of the FCTC. For a smart government like the UAE, investing
in tobacco stocks must not be an option if not for compliance with the FCTC, then for the
fact that tobacco stocks are going down (Netzly, 2018a, 2018b).
Thirdly, although Article 9 of the Federal Law No. 15 prohibits sponsorship
activities, the language of the article is broad and could be manipulated. Article 9 states
that “tobacco companies are prohibited from donating or assisting in the context of the
social responsibility to further marketing tobacco.” In this light, if a tobacco company
alleges that it is offering donations or assistance to any party for reasons other than
marketing, then that would be totally legal.
All in all, in adopting some of the FCTC rules through national legislation, Jordan
and the UAE were able to overcome heavy resistance from industry and create a national
basic platform of tobacco control. The UAE is in a better situation than Jordan. It has a
dedicated law on tobacco control, with regulation that addresses the main rules of the
FCTC. The enforcement of the Law is substantially better and more obvious in the UAE.
One of the most critical aspects that is absent in both legal systems is the issue of tobacco
companies’ liability as per Article 19 of the FCTC. This is a massive piece of the puzzle
that should be put in place to strengthen tobacco control in both countries and serve as a
source of income to both governments as the ensuing discussion reveals.
4 Litigation of tobacco
4.1 Historical snapshot
By the early 1950s, the health risks that tobacco causes had become evident,
notwithstanding the public relations campaigns by the tobacco industry to cast doubt on
the findings. In 1954, US tobacco manufacturers responded by jointly sponsored an
advocacy advertisement entitled ‘Frank statement to cigarette smokers’, claiming that the
tobacco industry takes peoples’ health as a basic responsibility and that they established
research unit to fund studies on health (http://www.tobacco.org).
The Pritchard v. Liggett & Myers Tobacco Co. case was the first notable case during
the fifties in which the plaintiff alleged that he suffered from cancer as a result of
smoking cigarettes. The harming nature of tobacco was still unforeseeable and thus the
case was dismissed. The tobacco industry effectively defended the first wave of claims by

Law to counter tobacco companies in the Arab region 9
emphasising the doubt with respect to the negative effects of tobacco and forcing
claimants to depend on the weak argument of ‘foresee ability’ (Public Health Service, US
Department of Health, Education and Welfare, 1954). The courts always found that
“there was no risk of harm that the industry should have foreseen” and therefore, the
tobacco industry was not liable. Rabin (1993) similarly, the industry exploited the
attorney-client privilege to conceal documents from discovery by third parties including
courts. As Rabin (1992) puts it, “‘the cigarette companies’ intransigence is simply
explained by the size of the projected financial stakes as the initial cases arose in the
mid-1950s... The industry saw its very existence threatened and responded in an
uncompromising fashion.” Accordingly, the industry had not considered any sort of
out-of-court settlement with claimants. There is no doubt that the industry utilised their
financial capacities and technical expertise to overpower their opponents in courts.
By the early sixties, it was very hard to deny the dangers of tobacco to health. The
US’ surgeon general’s report, issued in 1964, outlined the health hazards of cigarette
smoking consumption basing his conclusions on more than 7,000 scientific articles
(Smoking and Tobacco Use, Centres for Disease Control and Prevention, 2009).
Likewise, many NGOs got involved and contributed to public awareness of the dangers
of tobacco (Cummings and Proctor, 2014). Hence another wave of tobacco litigation
occurred in the 1980s. Interestingly, this time the industry used the weapons of it
opponents and invoked the warning on cigarettes packs of health risks as an escape tactic
from liability (Mather, 1998). Simply put, the tobacco industry succeeded in alleging that
tobacco consumers bear the risks as they were totally aware of them. The industry was
successful in defending claims by throwing the blame on consumers who knew the risks
of smoking and chose to do so nevertheless.
Public awareness and scientific research on tobacco’s negative effects intensified in
the 1980s. Naturally, lawsuits ensued not only to challenge the effects on tobacco
consumers, but also on passive smokers (Sweda, 2004). That is why limited success was
achieved when the court ruled for the plaintiff in the Cipollone v. Ligget case and
awarded the family damages. Yet on appeal, the court overturned the decision and
remanded the case. The plaintiffs however could not afford staying in the battle and thus
quit the litigation as the defendants overwhelmed them with their very expensive and
skilled defence and financial capabilities (Mather, 1998). However, the fragmented,
decentralised nature of American politics offered some leeway on the state level in
protecting the rights of non-smokers. Oddly enough, then, the bulk of focus was
channelled to “the health of non-smokers than smokers, even though the latter are clearly
much more at risk” (Kagan and Vogel, 1993). By the late 1980s, more cases were
brought by individual plaintiffs claiming that tobacco companies knew the danger of
tobacco but failed to warn consumers (Heminger, 2005). This was not convincing to the
courts based on the assumption of risk and the foresee ability of the diseases.
From 1993 to the present, various types of tobacco litigation have proliferated. Most
notably, the Castano v. American Tobacco Co. case involved a class of smokers and their
heirs joining forces against tobacco companies. Class actions – such as those initiated by
local governments or affected individuals – have seen limited success in courts (Luff,
2015). However, they succeeded in putting the tobacco industry on the defence. Unlike
those which were brought in the fifties, individual litigation started to succeed in
obtaining compensation and damages, including punitive damages, against the industry.
The first remarkable win for plaintiffs in a tobacco litigation occurred in 2000, when a

10 M.F.A. Nsour and M.A. Alqudah
California jury ordered Philip Morris to pay $51.5 million to a California smoker with
lung cancer (Meier, 1999).
In 2006, the Florida Supreme Court dismissed a class action lawsuit brought by
700,000 smokers against tobacco companies (R.J. Reynolds v. Engle, 06-1545). Yet, the
court found that tobacco companies deliberately sold dangerous products and concealed
their risks but declared that the case could only be brought by individual litigants. This
decision opened the door for thousands of smokers and their families to bring individual
lawsuits against the tobacco companies. By 2018, awarding hundreds of millions of
damages to plaintiffs had become a frequent occurrence.
Other parts of the world benefited from tobacco litigation in the US. In Australia for
instance, Rolah Anne McCabe, a lung cancer victim, sued British American Tobacco,
claiming, inter alia, that the defendants did not properly disclosed the dangers of their
products which she had consumed from an early age (McCabe v. British American
Tobacco Services, Ltd., 2002). The trial court took notice that the defendants intentionally
destroyed critical documents in the litigation, and that compromised the due process of
law and fair trial. Eventually, the court ruled for the plaintiff and the jury awarded her
$700,000 in damages. The plaintiff passed away six months later because of cancer and
the case was appealed. The appellate court overruled the trial court’s decision based on
the fact that concealing evidence should not have deprived the defendants of their entire
defence (McCabe v. British American Tobacco Services, Ltd., 2002). The case went back
to trial and before it concluded, it was settled confidentially in March 2011
(http://www.mccabecentre.org/about/about-the-mccabe-case).
Tobacco litigation is now widespread with positive prospects of providing
compensation, control and deterrence for the tobacco industry (Sergio, 2016). Claims
vary from cases challenging policies, laws on tobacco control to plaintiffs seeking
damages, to claims based on international investment agreements and free trade treaties.
In the next part, we will look qualitatively at tort lawsuits and apply our argument to the
Arab context.
4.2 The feasibility of litigation of tobacco in the UAE and Jordan
Courts in Jordan have reviewed cases relating to the permissibility of tobacco advertising.
In two cases, the cassation court of Jordan decided that agreements relating to tobacco
advertising are invalid, as this type of advertising is prohibited by Article 4 of Regulation
64 of 1977 on protection of public health from smoking damages (Decision
No. 2691/2006; Decision No. 3266/2006). However, tort cases against tobacco
companies based on harm resulting from smoking have not been reported either in Jordan
or in UAE, but this does not mean that this type of litigation against tobacco companies is
not possible in Jordan and the UAE. It is not difficult to address the idea of tobacco
litigation in Jordan and the UAE jointly as the law on liability is exactly the same in both
countries. In fact, the Civil Law in the UAE stems from the Civil Law of Jordan
(Preamble to the UAE Civil Transactions Law 1985). The civil law in both countries is
based on Islamic law and benefited from French civil law theory. Both countries have
developed their liability scheme by combining the rules of civil law with Islamic civil law
which was codified in what is known as ‘Mecelle’.
Liability is a broad concept that was designed to enable a society to declare that the
defendant has committed a wrong-doing or violated the law and caused harm on others.
Once the wrong-doing is established and it has been proved that it is the cause of harm,

Law to counter tobacco companies in the Arab region 11
the wrong-doing must cease and the wrong-doer is forced compensate for the damages he
or she has caused. One of the primary conditions in all tort cases is causation. Simply put,
the plaintiff must prove that the defendant’s tortuous conduct caused specific harm. If the
plaintiff cannot prove that the defendant was directly responsible for the harm to which
he was exposed, he cannot establish that the defendant is responsible, or liable, for the
injury. As a result, the plaintiff’s case will be dismissed. The causal link in tort cases is
difficult to prove, especially in the case of Jordanian and UAE civil rules, where direct
causation is required [Jordanian Civil Code, Art. 257 (1) and (2); UAE Federal Law
No. 5 of 1985 on Civil Transactions, Art. 283 (1) and (2)].
In both countries, the relevant tobacco legislation contains no rules on the liability of
tobacco industries, notwithstanding that Article 19 of the FCTC recommends so.
However, successful litigation against tobacco industry is feasible under the civil law
rules of both countries. A tort case against tobacco industry must prove that the tobacco
industry (i.e., producer) has committed an act that directly caused harm to a third party.
Unlike the civil rules in other jurisdictions, the act does not have to be wrong, or a crime
per se. It suffices that the defendant has committed an act whose result harmed someone.
In this part we will examine three avenues of litigation: individual lawsuits; class actions;
and legal person’s lawsuits.
4.2.1 Litigation by an individual plaintiff or his/her family
Liability of tobacco producers is proven if a victim of smoking, or his family, proves that
the death or the illness of the victim occurs as a result of consuming tobacco. The tobacco
producer’s defence revolves around negating the causal relation between their act of
producing tobacco and the harm that the plaintiff suffers. The burden of proof lies upon
the plaintiff who must prove that the producer of tobacco knows that he is manufacturing
or producing a harmful material and he nevertheless produces it. As a result, tobacco
producers are liable if they produce materials that are proven beyond reasonable doubt to
be harmful. Otherwise, the law would have not banned tobacco advertisement and
marketing, particularly to minors. The plaintiff does not have to engage in proving that
tobacco producers have produced defected products as tobacco is harmful per se.
Again, tobacco producers can deny the causal link between their product and the
harm inflected on the plaintiff. With respect to tobacco tort actions, it is even harder to
link the injury to the wrongdoing of the tobacco industry. Likewise, it is easier for the
defendants to substantially link some action or negligence of the plaintiff as regards the
injury which is the subject matter of the case, such as the over-smoking of the plaintiff.
Causation will be the subject of a back and forth process of evidence, particularly
concerning scientific evidence, as judges are not expected to be knowledgeable about
scientific material presented before the court. Hence scientific evidence is normally
referred to experts elected by parties or the court. Courts can task multiple experts and
choose the opinion as they see fit. Courts however, enjoy exclusionary powers as with
any other kind of expert testimony.
However, the defence of overuse cannot stand for long. The overuse defence is not
valid in at least two instances: firstly, if the smoker consumed tobacco according to
normal or regular standards; and secondly, if the plaintiff is a passive smoker, i.e., a
non-smoker who has been exposed to the smoking of others, provided that he/she did not
intentionally expose themselves to smoking. With respect to the first instance, the
plaintiff must prove that he/she smoked like any other smoker in similar circumstances,

12 M.F.A. Nsour and M.A. Alqudah
whether excessively or not. Moreover, assuming that the plaintiff excessively consumed
tobacco this act is outweighed by the bigger and intentionally wrongful act of producing a
dangerous product like tobacco. This can also be established via expert testimony over
which the court will have a broad exclusionary authority. Regarding the second instance,
a passive smoker can rebut the argument of over-use or excessive use if he or she had not
willingly put themselves in an environment in which tobacco smoke was present. For
example, an employee who willingly serves tobacco products to customers and prepares
them by trying them cannot claim that he is a passive smoker. This, nevertheless, does
not mean that such an individual cannot bring an action based on liability rules.
Another defence that can be presented is the mistake of another party or element thus
diverting the causation from the producer to someone else. For example, if the producer
proves that the packaging company, which is a completely different entity, has not
packaged the tobacco product according to the usual standards. By the same token, the
defendant may invoke force majeure as an element to deny liability, for example if the
plaintiff is allergic to specific elements of tobacco and that allergy is the cause of harm.
This defence is extremely weak as tobacco products are harmful per se and external
conditions have no impact on the nature of tobacco.
Furthermore, tobacco companies will also challenge any court action by claiming that
any claim brought would not be valid as their product is fully licensed and approved. This
contention will not stand as licensing a product does not entail an exemption from
liability. For example, cars are licensed to be manufactured and produced, yet if a car
causes injury the owner will be held liable. By the same logic, the fact that tobacco
companies are licensed to produce tobacco products does not mean that they are not
responsible for injuries caused by such products.
Specific causation is also frequently a challenge with tobacco injuries. Testimony
expertise may establish a general causation, which means linking the injury of the
tobacco victim to tobacco as an element or material. The ultimate challenge in this
equilibrium is to link a specific producer or tobacco brand to the injury of the victim.
However, this is difficult unless the plaintiff demonstrates beyond reasonable doubt that
he or she has been consuming a specific kind of tobacco from a specific defendant
producer. This difficult evidence can be established either via proof of purchase or via
epidemiological evidence, or both (Stout and Valberg, 2005).
All in all, we see that an individual action is feasible in both Jordan and the UAE. The
tobacco industry has committed an act (producing and selling tobacco), and such act
directly inflicts harm on others by causing diseases, death or moral impact. Thus, the
three conditions of a tort liability are fulfilled.
4.2.2 Class action
Class action lawsuits are court actions that allow plaintiffs with similar claims to bring a
lawsuit against common defendants. The wisdom behind class action lawsuits is to enable
individuals to get compensated for their injuries when it would otherwise be too costly or
too difficult to pursue action on their own (Smithka, 2009). From another angle, class
action lawsuits allow courts to resolve the claims of many defendants at once in lieu of
examining each case individually, and thus saving time, resources and effort. Of course,
such claims must have the same cause of action.
Unlike the US, (Class Action Fairness Act of 2005) nothing in the Jordanian or the
Emirati legal systems regulates class actions. But class actions are common in both

Law to counter tobacco companies in the Arab region 13
countries as they are frequently raised, as are any other private court actions. The only
jurisprudential condition for class actions is commonality of disputes. Commonality of
disputes means that all plaintiffs are suing the same defendant for the very same reason.
Commonality is, prima facie, easy to establish if the defendant is engaged in illegal
actions or wrong behaviour. But linking these actions to a number or plaintiffs’ injury is
challenging as each injury must be examined individually against the defendant action.
There are many advantages of class actions in this particular kind of litigation
including but not limited to: saving costs for plaintiffs; achieving better efficacy for the
judicial process as evidence is examined collectively; creating public awareness on the
matter, and thus deterring the tobacco industry. However, class actions have proved to be
a weak tool in the case of tobacco industries as they, for the most part, have been
dismissed (Sirabionian, 2005).
In tobacco cases, the crux of the class action revolves around proving that the tobacco
industry intentionally harmed consumers by producing harmful products, and thus
anyone who has consumed tobacco and was harmed is eligible for damages. One example
of a class action case was the aforementioned Castano case, which involved a large
number of plaintiffs (Castano v. American Tobacco Co., 1996). The claim failed because
it was impossible for the court to examine all plaintiffs’ claims jointly. Perhaps most
annoyingly, the court was sympathetic to the defendant in finding that mass tort actions
are too burdensome on the defendants and could jeopardise their rights; hence individual
claims are more favourable. Other class actions such as the Brown & Williamson
Tobacco Corp. v. Carter case ensued with similar outcomes.
In light of the above, it is very hard to envision a successful class action against
tobacco companies. The causation factor cannot be established, as causation must be
direct and certain. Furthermore, class action has not been specifically regulated in Jordan
and the UAE and thus it is very difficult for the courts to accept this kind of action. As
Sirabionian (2005) puts it, “most nations outside of the US have determined that tort
litigation is not an effective or efficient method to achieve social or personal justice.”
4.2.3 Lawsuits by legal persons
This kind of litigation is brought by either the state or non-profit organisations that
tobacco sectors have directly affected. This litigation is different from State Parens
Patriae lawsuits, as the latter are actions initiated by the state on behalf of its citizens.
State Parens Patriae is a common law notion that does not stand in civil law, and
particularly under the laws of Jordan and the UAE. Both laws require that a plaintiff must
have an interest or a stake that he or she is trying to fulfil [Jordanian Civil Procedure
Law, Art.3 (1); UAE Federal Law of Civil Procedures, Art (2)]. Such interest has to be
present and direct whether in present time, or in the future. Such interest or stake can be
moral or material. Otherwise, the plaintiff’s case will be dismissed.
The government or non-profit organisations such as hospitals or cancer centres can
bring a successful claim against tobacco industry on the same tortuous basis of a private
lawsuit. Simply put, the government calculates its health bill for diseases resulting from
tobacco consumption, mostly non-communicable diseases, and this will be the injury
factor in the tort equation. Tobacco producers, by producing tobacco, committed the act
that caused the injury, i.e., the expenses born by the government or the non-profit
organisation to treat disease resulting from tobacco.

14 M.F.A. Nsour and M.A. Alqudah
The challenge, again, is the causation factor. The plaintiff often will need expert
medical and scientific evidence to establish the link between tobacco consumption and
financial expenditure. The plaintiff, via expertise, must engage in a double-facet analysis
to establish the causation factor. First, the causation expert must engage in a risk analysis
to establish that the tobacco agent at issue is the probable cause of the diseases the
plaintiff is treating. This step needs to make use of relevant medical principles to weigh
various possible causes of the diseases at issue in order to identify the most likely cause.
Once established, the second step is to prove that the expenses borne were allocated to
treat the diseases proven in the first step. The second step is less challenging as regular
formal paper evidence is normally admissible [Jordanian Evidence Law, Art. 6 (a); UAE
Federal Law on Evidence in Civil and Commercial Transactions, Art. 8].
Notwithstanding the aforementioned, it is still possible to negate the causation factor
by claiming that other reasons may cause the diseases in question and therefore the
expenses borne by the plaintiff in this case. Diseases at issue may be caused by factors
other than the consumption of tobacco. The tobacco industry can prove that tobacco is
not the only cause of disease. For instance, issues including lack of activity, metabolism,
cancer, diet, environment, and alcoholism can all lead to the development of NCDs as
can tobacco. Therefore, an examination of the extrinsic rate of tobacco contribution in the
diseases in question is inevitable.
Once it is established that tobacco is indeed a contributory factor (if not the factor) in
the causation of injury, tobacco defendants shall be held liable pro rata. For example, if
tobacco consumption has caused 50% of the diseases that the government or non-profit
organisation has treated, then defendants shall be liable for 50% of the bill, and in total,
all tobacco producers can be held liable as long as the injury, i.e., cost, has been caused
by tobacco production (Jordanian Civil Code, Art. 265; UAE Federal Law No. 5 of 1985
on Civil Transactions, Art. 291). What should be mentioned here is that several lawsuits
were brought by legal entities such as hospitals and the Ministry of Health against
tobacco companies and their agents in Saudi Arabia (Gostin, 2007; Schulman, 2008)
However, it seems that these lawsuits were dropped as no judgment were made in these
cases (Gostin, 2007).
5 Policy considerations
In light of the above, one concludes that health legislation in Jordan and the UAE must
incorporate all the obligations committed to in the FCTC. This includes but is not limited
to stronger public awareness schemes; limiting interactions with the tobacco industry and
banning partnerships and collaborative programs therewith; and strictly regulating
activities described as ‘socially responsible’ such as sponsorships and donations. Equally
imperative, future free trade agreements (FTAs) must exclude tobacco from their
coverage and should not grant any preferential treatment to the tobacco industry. Future
bilateral investment treaties must also exclude tobacco investors from any sort of investor
protection, as is the case with other investments. Namely, investment in tobacco must not
be recognised as an investment in bilateral investment treaties (BITs) in the first place.
BITs must include language that exempts the tobacco industry from any preferential or
non-discriminatory treatment vis-a-vis other foreign investments. Both FTAs and BITs
must assert the full right of the state to restrict trade and investment based on policy and
health considerations. With respect to settling disputes, BITs must not give any right or

Law to counter tobacco companies in the Arab region 15
resource to the tobacco industry to bring an action against the government before
international investment tribunals.
Jordan and the UAE must impose higher taxes, fees and charges on tobacco products,
whether domestic or foreign, in an equal fashion. Both countries must apply the bound
tariff rate indiscriminately on all tobacco product imports and not the applied tariff.
Simply put the UAE and Jordan must apply the highest tariff rate allowed under its
WTO’ commitments, which ranges from 5% to 150% ad valorem (bound rate). It is true
that both countries apply the bound rate on most tobacco related products, but tobacco
itself has not been subjected to the bound tariff rate, as its tariff line is 97% ad valorem.
That discrepancy frustrates the wisdom behind imposing high multilateral tariff rates on
tobacco products as regional trade constitute more than half of total world trade.
Accordingly, both countries could have done better in excluding tobacco from the tariff
elimination equation.
Controlling tobacco in Jordan and the UAE would improve the overall health quality
in both countries and boosts their economy. The governments of Jordan and the UAE
therefore have a large stake as this will reduce the health bill that burdens the budget.
Both governments will consequently bring the deficit down by securing an additional
source of income to run a genuine sustainable development process. Perhaps most
importantly, both countries will prove that they can meet their international obligations
and achieve what has not been achieved in the last 30 years.
6 Conclusions
This research underlines the role of the law in controlling tobacco consumption in a
region that is exhausted by tobacco consumption. The role of law includes the adoption
of legislative and regulatory measures to ban smoking and advertising indoors and in
public places. Litigation against the tobacco industry has been a powerful tool to counter
the actions of tobacco companies. The litigation can be initiated by individuals, groups or
governments.
The gaps between law and its implementation constitute a major obstacle, particularly
in Jordan. The UAE has proven to be better in implementing tobacco laws yet its tobacco
laws can still be enhanced by adhering more to the best international practices embodied
in the FCTC. In both cases, the political will is crucial particularly since the FCTC has
left the on-the-ground work of tobacco control to the member states. In this light, the
individual effort of the sovereign parties to the FCTC at the national level is the
fundamental indication of success.
Every year millions of people around the world are killed by tobacco-caused diseases,
but in the Middle East the numbers are particularly high. Tobacco companies in the Arab
world have not yet been subject to the correct legal scrutiny. Moreover, the governments
of Jordan and the UAE should initiate, and support individuals to initiate, legal actions to
collect damages. Legal actions can also put pressure on an industry that causes such
widespread harm and health problems like the tobacco industry and expose them to the
public. Therefore, a strong commitment to international commitments and to domestic
regulations will be instrumental in the face of this tobacco consumption which is
promoted by tobacco companies. Otherwise, the death toll will grow with each passing
year and the economy will slow down.

16 M.F.A. Nsour and M.A. Alqudah
Tobacco control laws and policies are an important investment in the health sector of
any economy. The funds allocated to treat non-communicable diseases impeded
sustainable development and economic growth. Saving expenditure on tobacco-related
effects will generate enormous social and economic benefits for peoples and states. To all
these ends, tobacco control needs a very solid and smart domestic legal regulatory
framework.
Acknowledgements
The authors would like to thank our research assistant Mr. Zaid Ershiedat. This article
was financially supported by the United Arab Emirates University.
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20 M.F.A. Nsour and M.A. Alqudah
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