The liability of the tobacco industry for damages arising from smoke in Brazilian legal system

Abstract

The analysis of the liability of the tobacco industry should have as background the responsibility for the fact for the product, similar to the article 12 of the Consumer Defense Code – CDC, which requires the occurrence of these three situations, concurrently: (a) the product is defective or that the information is insufficient or inadequate, (b) the occurrence of damage combined with the presence of the nexus causality and (c) that is not hypothesis of exclusive guilt of the victim or a third party. The doctrine homeland differs substantially on the cigarette itself be or not be a defective product, on the implementation or not the duty to inform by the manufactures of cigarettes and about the possibility or not to demonstrate, unequivocally, the relation of cause and effect relationship between illness and consumption of cigarettes. It adds to the picture, more, the discussion about the application of exclusive liability under article 12, § 3º, III, CDC. The scales of justice, exceeding the proceedings, with the weight of recent decisions of the Superior Court of Justice, has swung to the removal of the duty to indemnify, which is, for now, a significant victory for the suppliers, in which despite the protective aegis of the consumer in the legal system of Brazil’s.