Lawsuits Helped Kill Big Tobacco—Can They Repeat It With Big Oil?

A groundbreaking trial dealt a major blow to the tobacco industry by proving it knew it was selling a harmful product, used deceptive advertising, and funded deniers. Behind the major case was lawyer Sharon Y. Eubanks, who served as the lead counsel. Now, she makes the point that the fossil fuel industry has been following the same game plan and faces the same legal problems.

For The Guardian, she wrote:

"Both industries lied to the public and regulators about what they knew about the harms of their products. Both lied about when they knew it. And like the tobacco industry while I was in public service, the deceptive advertising and PR of the fossil fuel industry is now under intense legal scrutiny."

Eubanks notes that both industries funded fake science, gave big grants to skeptics and deniers, and even hired the same teams to run their campaigns. This is not new information. A 2016 article inScientific American showed how "from the 1950s onward, the oil and tobacco firms were using not only the same PR firms and same research institutes, but many of the same researchers." 

Eubanks noted that Big Tobacco eventually ran into trouble because the lawsuits just kept coming. "The weight of evidence became so great that the legal risks became systemic, requiring comprehensive action from governments," she wrote, concluding that the same is happening to the oil industry, with more than 1,800 lawsuits already filed over climate liability.

"A legal tipping point may be soon approaching for fossil fuel companies and the spin masters that work for them. As with our case against tobacco, too many lives will be lost before these cases are resolved. But accountability is coming soon, and the implications will be vast."

However, it's not just the legal strategy that we can learn from the fight against Big Tobacco. In my 2021 book, "Living the 1.5 Degree Lifestyle," I credited other strategies—education, regulation, taxes, and societal attitudes:

"Forty years ago, almost everyone smoked, it was socially acceptable, and it happened everywhere. Governments applied education, regulation, and taxes. There was a lot of social shaming and stigmatizing happening too; in 1988 medical historian Allan Brandt wrote about cigarette smoke: 'The fragrant has become foul; an emblem of attraction has become repulsive; a mark of sociability has become deviant; a public behavior is now virtually private. Not only has the meaning of the cigarette been transformed, but even more, the meaning of the smoker… a pariah, the object of scorn and hostility.'"

I concluded this might well become the case with the use of fossil fuels.  

"Fossil fuels are the new cigarettes. Their consumption has become a social marker; look at the role pickup trucks played in the 2020 American election. Like cigarettes, it is the secondhand externalized effects that are the motivators for action; people cared less when smokers were just killing themselves than they did when secondhand smoke became an issue. I wonder if at some point the big obnoxious pickup truck won’t be as rare as smokers have become."

In her article, Eubanks acknowledges we need more than just lawsuits and that marketing matters. She points to a report by Clean Creatives, titled "Smoke and Mirrors: The Legal Risks of Fossil Fuel Advertising," which notes:

"We are unable to reach our climate goals because of fossil fuel companies. The Paris Agreement symbolized the beginning of a shift towards net-zero, but the World Benchmarking Alliance has found a “systemic lack of accountability and action” by the top 100 companies, who are predicted to “burn through the sector’s 1.5° C carbon budget by 2037.” 

These 100 companies are fossil fuel producers, with 56% of the emissions coming from state-owned entities rather than public or private companies—and all of them have a vested interest in continuing to pump. But as we have noted before, the carbon emission problems with fossil fuels generally happen when you burn them, not when you produce them. This is a consumption problem, not a production problem.

The Clean Creative people call for advertising agencies to stop working for fossil fuel companies, telling the industry, "No matter what capacity you work in, you have an influence. We create work that moves people; we shouldn’t be complicit in deceiving the public. You can work to convince your company to stop working with fossil fuel clients or at least think more critically about your involvement in the climate crisis."

But they should also be telling their industry to work on the consumption side—to avoid working for the automobile industry. 

We are kidding ourselves if we just go after the fossil fuel producers in terms of lawsuits or marketing—our actions will have no effect on Aramco or The National Iranian Oil Company. It's time to go after Dodge and Ford for their trucks. Or maybe Pulte, KB, and Toll Brothers for their leaky, gas-fired homes that they know are contributing to climate change. These are companies that could make decisions that significantly reduce carbon emissions, but would rather sell big trucks that drive to big homes, and they spend a lot on advertising to encourage it. Let's go after the demand side—let's go after them.