B)Wang Ying v.Mr. Chen and Xuchang Radio and TV University[3]

Ms. Wang Ying is a teacher inXuchang Radio and TV University and an active activist in initiating public interest cases. In late 1990s and early 2000, she was famous for bringing a few cases against liquor manufacturers for failing to give consumers health warnings of the harm of drinking liquor on the packages. In 2008, she brought a case against her colleague who shared an office room with her and the university she was working for. She claimed she had suffered allergy, cough, and chest tightness for a long time because of the secondhand smoke produced by her colleague Mr. Chen and no change had ever made after she made repeated protests to him and to the university. She was to seek 100RMB apiece for damages. But the local court did not admit the case on the ground that smoking was a moral rather than a legal issue. It was the first case seeking compensation for the health damage of secondhand tobacco smoke in workplace in China. In 2009, Ms. Wang Ying filed another case against a tobacco company demanding the defendant to pay her 9800RMB for damages and add more specific health warnings like Secondhand Smoke Is Harmful to Your Health on the packets. This case also did not get admitted by the local court.

C) Mr. Huang v. Dongguan City Coal Mining Machinery Manufacture Limited[4]

This case may not be called PIL in strict sense, but itdid demonstrate the importance for the workplace to ensure a smoke free environment. Mr. Huang was arranged by the company to live with a heavy smoker in a dorm. In less than a year, secondhand smoke made him suffered a lot and he eventually was diagnosed hypertension. However, the company not only chose to ignore his complaints and requests for a change of dorm mate on the ground that the company could not interfere in the freedom of smoking of an employee, but also fired him for his repeated complaints. He filed a lawsuit to the court against the company and demand damages for the health problem caused by the secondhand smoke. But the court eventually rejected his claim on the ground that his claim on health damage by the secondhand smoke did not belong to labor dispute and was thus not in the jurisdiction of that court.

D) Administrative applications on law enforcement of smoking ban

While there are numerous complaints everyday made to the state agencies for law enforcement in smoke free cities in China, complaints for the purpose of public interest by NGOs and pro bono lawyers in this regard are still a rare phenomenon. However, such an investigatory legal action did had been taken in late 2010 by Beijing Dongfang Public Interest and Legal Aid Law Firm with a view to learning the situation of compliance of the smoke free regulations in Beijing and testing the responses of the different state agencies to complaints. A series of administrative applications were made to state agencies by volunteers from the law firm when violations of smoking bans were found. Eventually, a report on the compliance and enforcement of the smoke free ban in Beijing based on the results of the administrative applications was publishedon Jan. 5, 2011.[5]

2）cases on tobacco advertisement

Tobacco advertisement is an area most frequently targeted by public interest actions. There are a few public interest lawsuits, but much more are cases of administrative application for law enforcement. There are two reasons behind the prosperity of PIL in this regard. Firstly, there has been a relatively rigorous law regulatingtobacco advertisement since 1994 and an even more rigorous regulation made by the State Administration Bureau for Industry and Commerce since 1995. Secondly, the Administration Bureaus for Industry and Commerce at various regions are often lukewarm in enforcing the law and regulation on tobacco advertisement since there are usually no obvious victims are involved. So it is veryimportant for the civil societies to push the Bureaus to take actions against unlawful tobacco advertisement. The civil societies also can play a role in pushing for further clarification of rules regulating tobacco advertisement by initiating public interest actions.

A) Zhu Xiaofei v. Beijing Administration Bureau for Industry and Commerce[6]

This case was initiated by the volunteers and lawyers of Beijing Dongfang Public Interest and Legal Aid Law Firm in 2010. It targeted a tobacco ad in Chinese Central Television channel 10 which was released in an elusive way. According to law, Tobacco advertisement in TV shall be prohibited. However, this ad only promoted the name and image of Hongta Group, the largest tobacco company in China. Furthermore, it was funded by one of subsidiary company of Hongta Group which mainly focused on investment. So it seemingly only publicized the image of the non-tobacco subsidiary company, although what it conveyed to the public was the whole Hongta Group.An application made to Beijing Administration Bureau on Industry and Commerce for law enforcement was rejectedon the ground that the ad was not tobacco ads. The further application to State Administration Bureau for Industry and Commerce for administrative review of the decision was also denied based on the same reason. A lawsuit then was filed to Haidian District People’s Court against Beijing Administration Bureau for Industry and Commerce. The court admitted the case but eventually dismissed the case on the ground that the plaintiff lacked of standing. It ruled that the plaintiff had no direct interest with the advertisement, so she was not qualified to file a lawsuit against the defendant. The Beijing Intermediate People’s Court also upheld the ruling of the first instance.

B）Think-Tank Research Center for Health Development v. Beijing Administration Bureau for Industry and Commerce

This case was initiated by Think-Tank Research Center for Health Development (hereinafter referred to as Think-Tank ) , a prominent NGO on tobacco control based in Beijing, and a pro bono lawyer in Hebei Province in 2014. The case targeted the same tobacco ad as that in Zhu Xiaofei v. Beijing Administration Bureau for Industry and Commerce. The only difference was that the tobacco ad in this case was placed on the entrance to Beijing West Railway Station rather than on Chinese Central Television. The lawsuit also followed almost the same approach of that in Zhu Xiaofei v. Beijing Administration Bureau for Industry and Commerce and suffered the same defeat. Both Courts of two levels declared the case inadmissible on the ground of lack of standing.

C). Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company[7]

It was initiated by lawyers fromBeijing YipaiLaw Firm in 2013. It Challenged the deceptive conception of‘low tar, low harm’which had been longpublicized by tobacco industry. It was the first lawsuit concentrating on this issue in China. The defendant, China Tobacco Jiangxi Industrial Limited Company, claimed in its website that the tar in its tobacco brand ‘Jinsheng’had been reduced to a great extent through high-techs and ‘low tar means low harm’. It also claimed that this statement had been approved by the scientific research of the Chinese Society of Toxicology and Military Medical Academy of PLA. The plaintiff brought a packet of ‘Jinsheng’and filed a lawsuit against both the seller and the tobacco company on the ground that he had been cheated by the illegal tobacco ad and demand for damages. The court declared the case admissible, but dismissed the claim of the plaintiff that the tobacco ad was deceptive on the ground that reducing tar in tobacco had been encouraged by the Tobacco Monopoly Law, and ‘low tar means low harm’was not groundless under such a circumstance that the defendant had shown scientific evidences provided by relevant research institutes. The second and third instance of trial also upheld the verdict in the first instance.

D) XieYaxi v. China Tobacco Shanxi Industrial Limited Company and Shanxi GaochuangLeshi Trade Company[8]

This case was devised by a pro bono lawyer in Shanxi Province in 2014. It also targeted deceptive tobacco ads by tobacco companies and adopted the similar strategy in Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company. The plaintiff in this case claimed that he saw several tobacco ads of the tobacco brand ‘Haomao’(or ‘good cat’) placed by the tobacco company which exaggerated the benefits of smoking to health. He bought two packets of ‘Haomao’ under the deceptive ads and brought the lawsuit to the court against the tobacco company as well as the seller, demanding compensation for the price he paid for the packets of cigarette. However, the local court rejected the plaintiff’s claim on technical reasons. The court ruled that the tobacco ads on ‘Haomao’the plaintiff provided to court were not identical to the authorized tobacco ads of the defendant in other places and the plaintiff failed to prove that these ads were placed by the defendant.The court also ruled that the plaintiff failed to prove there was deceptive publicity under such a circumstance that the defendant had printed ‘smoking is bad to your health’on each packet of its products.

E) Tian Feng v. Guangdong Wuyeshen Industrial Development Limited Company[9]

It was also a PIL case planned by Beijing Yipai Law Firm and followed almost the same approach as that in Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company. In 2014, an activist called Tian Feng brought a case against Guangdong Wuyeshen Industrial Development Limited Company for damages in Shenzhen City Yantian District Court, claiming that she brought a carton of ‘Wuyeshen’ cigarettes under the influence of false tobacco ads in the website of the defendant which claimed that its tobacco products had been tested by authoritative research institutes and proved that smoking ‘Wuyeshen’ could substantially reduce such side effects of smoking as cough and helped to improve the flow of blood. The court of the first instance ruled against the plaintiff on the ground that the defendant’s ads were justified since some contents of the ads did had been authorized by the Chinese Society of Toxicology. However, the court mediated an agreement between the two parties during the trial of second instance in April 2015. According to the agreement, the defendant paid 9935 RMB to the plaintiff and bore the burden of legal fare. This is the first case with partly positive legal result in PIL on tobacco control in China so far, although the court did not rule the tobacco company should be blamed for its false or exaggerated publicity of its tobacco products.

F) Administrative application cases

There are much more administrative application cases than lawsuits on tobacco ads and the results of the former are also much more satisfactory. There are a few NGOs and activists with successful practices in this regard. Take Think-Tankas example.In 2010, upon the application of Think-Tank, Beijing Industrial and Commercial Bureau investigated the illegal tobacco ads in a parkour competition event co-sponsored by Beijing Cigarette Factory and some other institutes in a Beijing park and imposed a fine on the advertisement company. In Sept. 2012, upon the application of Think-Tank, the Sichuan Province Industrial and Commercial Bureau removed all of the tobacco ads in two notorious tobacco schools to which tobacco companies had donateda lot of money.In December 2012, more tobacco ads in some primary and secondary schools in Sichuan Province were removed upon a similar action by the Think-Tank. In May, 2013, thanks to Think-Tank’s application, China, Jiangxi Province Industrial and Commercial Bureaualso removed the illegal tobacco ads in the website of Tobacco Jiangxi Industrial Limited Company.

3) Cases on tobacco trademark

 For tobacco companies, trademark is an important way to promote their products. Article 11 of WHO FCTC obligates the state parties to ensure that tobacco product packaging and labeling do not promote tobacco products by any means, including trade mark, that are false, misleading, deceptive or likely to create an erroneousimpression about its characteristics, health effects, hazards or emissions. The Trademark Law of China revised in 2001 prohibits that trademarks that ‘identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People's Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings’or ‘detrimental to socialist morals or customs, or having other unhealthy influences’. Article 41 further provides that ‘where a registered trademark stands in violation of the provisions of Articles 10’, ‘the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to cancel such a registered trademark.’ These provisions make it possible for activists and NGOs on tobacco control to challenge sometobacco trademarks that are suspected of being in violation of both the Trademark Law and WHO FCTC. There are two typical cases on this issue.

A) Wang Shiruv. Trademark Review and Adjudication Board[10]

This case targeted the tobacco brand‘Zhonghua’(meaning ‘China’) which is one of the most famous tobacco trademarks in China. Mr. Wang is a pro bono lawyer based in Shanghai. He made an application in 2008 to the Trademark Review and Adjudication Board, demanding the trademark be cancelled according to the Trademark Law in 2001 on the ground that the name ‘Zhonghua’as well as the picture of Tiananmen in the trademark should not be used to promote tobacco which was harmful to health. The Trademark Review and Adjudication Board rejected his application in 2011 on the ground that the trademark was approved at a time far before the entry into effect of the Trademark Law in 2001. The ruling was also upheld by the Beijing First Intermediate Court.

B）Think-Tank Research Center for Health Development v. Trademark Review and Adjudication Board[11]

This case challenged another famous tobacco trademark ‘Zhongnanhai’in China.It was initiated by Think-Tankand Beijing Dongfang Public Interest and Legal Aid Law Firmwithout the knowledge of the Wang Shirucase. Think-Tankmade an application in 2009 to the Trademark Review and Adjudication Board claiming that the trademark should have been cancelled when it was reviewed by the Board for renewalin 2007 on the ground that ‘Zhongnanhai’ was the place ‘where the Central and State organs are located’and was prohibited both by the Trademark Law of China and WHO FCTC. The Trademark Review and Adjudication Board rejected the claim in 2011 on the ground that the trademark should be protected since it was approved far before the entry into effect of Trademark Law in 2001. Both the Beijing First Intermediate Court and Beijing High Court dismissed the claims of the plaintiff on the same ground and ruled that the trademark licensed before the Trademark Law in 2001should be renewed even if it contradicted the new law according to the no retrospective principle of law.

4）Disclosure of government information on tobacco control

Since the Regulation on the Disclosure of Government Information was promulgated in 2007. Activists in China have frequently used this regulation to initiate public interest actions, since it provided citizens with cost-effective way to access to the government information.The access to court has also been greatly facilitated thanks to the low standard of standing the regulation requires. In this context, activists on tobacco control also take up this legal tool to promote the agenda of tobacco control.

A) Li Enze v. State Tobacco Monopoly Bureau[12]

The case was brought by the pro bono lawyer Li Enzefrom Beijing Yipai Law Firm in 2013. It was devised to acquire government information supposedly owned by the State Tobacco Monopoly Bureau and push it to clarify its stance on certain issues on tobacco control like whether it approved of putting picture health warning on the packets of tobacco in China. Before the case was brought, Mr. Li had successfully acquired affirmative answers about the picture health warning issue from some other state agencies among the so called Leading Group of Eight Ministries and Committees on Tobacco Control. The State Tobacco Monopoly Bureau, which is also the China Tobacco, is well-known for its elusive or even negative attitude towards tobacco control. One of aims of this case was to expose the agency’s true attitude and its disqualified position as one of the leading ministries on tobacco control. Mr. Li filed a lawsuit against the State Tobacco Monopoly Bureau on the ground that it failed to properly disclose some information he applied for. The court eventually dismissed all of Mr. Li’s claims. The court ruled that the information Mr. Li applied for about the ‘sum of money donated by domestic tobacco companies since 2006’ and the question that ‘are you for or against the advocacy on putting picture health warning on tobacco packets in China’was not the information that the defendant was obliged to provide according to the Regulation on the Disclosure of Government Information.

B）Wang Ying v. State Administration Bureau for Industry and Commerce[13]

 It was a case planed by a pro bono lawyer in Hebei Province in 2015. Similar to Li Enze v. State Tobacco Monopoly Bureau, the case was designed to get information on what the members of Leading Group of Eight Ministries and Committees on Tobacco Control had done to implement thePlan of Tobacco Control in China（2012-2015）which was made and published by the Leading Group in 2012. But the Plan had not been implemented rigorously. The division of work among the Leading Group on tobacco control wasalso vague and the coordination within was poor.The plaintiff made an application to the State Administration Bureau for Industry and Commerce, demanding the disclosure of the information on measures that had been taken to achieve the goals of substantively reducing smoking rate and increasing the awareness of tobacco harm in Chinaset in the Plan. However, the State Administration Bureau for Industry and Commerce replied that the information related matters were not within its jurisdiction. The Court eventuallysupported the stance of the defendant.

3）Administrative applications on disclosure of government information.

   There are also a lot of administrative applications on disclosure of government information for the purpose of advocacy of tobacco control. For instance, Beijing Yipai Law Firm published a report on the implementation of smoking bans in 15 cities based on the government information acquired from administrative applications in 2015. In 2016, it further published a report on the implementation of smoking bans in 18 cities based on the government information obtained through the same approach in 2016.

5）Tobacco Labeling and packaging

Well-designed health warnings and messages are one of the most effective measures tocommunicate health risks and to reduce tobacco use.The WHO FCTC imposes strict regulation on the labeling and packaging of tobacco products. However, the tobacco labeling and packaging has been poorly regulated in China. In 2008, the STMA and the General Administration of Quality Supervision, Inspection and Quarantine (GAQSIQ)jointly promulgated a regulation on labeling and packaging of tobacco products in order to implement the WHO FCTC.But the regulation fall short of the requirements of the WHO FCTC, and the implementation of italso has beenlax. While GAQSIQ was involved in the making of the regulation and the Law on Products Quality provides that the GAQSIQshould be in charge of law enforcement of the rules regulating labeling and packaging of industrial products, the role of it in making and enforcing rules on tobacco labeling and packaging is far from clear.A public interest action thus was designed by Think-Tank and thepro bono lawyer from Beijing Dongfang Public Interest and Legal Aid Law Firmto push the two state agencies to clarify the division of work in enforcing the Regulation on the labeling and Packaging of tobacco products and expose the inappropriate role of the State Tobacco Monopoly Bureau in enforcing the Regulation under such a circumstance that there is conflict of interest between selling tobacco products and enforcing rules on tobacco control.

  Mr. Wang Kean and Ms. Wu Yiqun from Think-Tank made two applications respectively to the State Tobacco Monopoly Bureau and the GAQSIQin March 2012, demanding investigations onsome tobacco packages which seem to be promoting ‘low tar, low harm’ or other good natures of tobacco. The Tobacco Monopoly Bureau made a reply to Ms. Wu Yiqun, denying there were any violations on the tobacco packages concerned as expected.However, the GAQSIQalso replied to Mr. Wang Keanclaiming that investigation of tobacco packages was the responsibility of the Tobacco Monopoly Bureau. On June 25, 2012, an application was made to the Legal Office of the State Council for an administrative review on the decision of GAQSIQ. But it was declared by the Office inadmissible on the ground that the subject was not within the scope for administrative review. No further legal action was taken on this issue.

3. Impact evaluation: the scenario changed and unchanged

From the PIL cases shown above, we can see that PIL on tobacco has been prosperous since 2006. It’s been an important part of wider advocacy movement on tobacco control. However, prosperity does not necessarily mean successful. From the perspective of law, apart from the case of Tian Feng v. Guangdong Wuyeshen Industrial Development Limited Company in which part positive result has been achieved, no lawsuit cases on tobacco control can be regarded as ‘successful’ in China. Most lawsuit cases were either declared by the courts inadmissible, or failed to gain the support of the courts in law.

This fact is in stark contrast to that in the U.S. or India in terms of PIL on tobacco control. It’s true that in the first wave of PIL in the U.S. before 1970s, most PIL cases for damages ended in failure too due to the restraint of tort law and lack of experiences. These cases also did not change much in corporate behaviors although they generated much publicity. However, since the breakthrough of landmark caseCipollone v. Liggett in the second wave of tobacco litigation in early 1980’s, the victims of tobacco smoking in a series of cases had been awarded huge sum of money for compensation and these cases also succeeded in exposing industry’s bad behaviors in covering up the risks of tobacco. In the third wave of tobacco litigation, a few class action cases against the tobacco industry on personal injury and consumer fraud also were very successful in forcing the tobacco companies to pay for damages or special foundation set up to support tobacco control research.

In India, PIL on tobacco control also has an excellent record. Indian courts, the Supreme Court in particular, are famous for its tremendous judicial activism. There have been quite a few successful PIL cases on tobacco controldriven by such activism. For instance, in Murli S. Deora v. Union of India and Others in 2001, the plaintiff won a landmark case that facilitate the making of a national smoking ban in public places in India. The Supreme Court of India held in this case that allowing smoking in public places would amount to an indirect violation of the right to life of non-smokers since smoking in public was harmful to the health of passive smokers. The Courtordered Indian government to issue a smoking ban in public places like auditoriums, hospital buildings, educational institutions, libraries,  public offices and public conveyances.[14] The case partly prompted India to pass the Cigarettes and Other Tobacco Products Act in 2003 which prohibited smoking in some public places. In a series of PIL cases on the use of Gutka (a chewing tobacco product which can cause oral cancer), the Indian courts also banned the use of plastics in Gutka and prompted many Indian states to ban the sale of Gutka.

The startling contrast in legal resultsof PIL cases on tobacco control between China and U.S or India shows that PIL in China in no way can compare with that in the U.S. or India. Although the pitiful results of PIL on tobacco control in law can be partly attributed to its infant stage of development of PIL, it’s fair to attribute the low rate of success to unfavorable legal environment which the Chinese activists have to face. There are quite a few elements that restrain the odds of success of PIL on tobacco control in court.

1) The issue of standing

Standing (or locus standi) is a common issue in PIL. Like PIL in other areas, a considerable number of PIL cases on tobacco control were not admitted or ruled against the plaintiffs by the courts on the ground that the plaintiffs lacked of the standing. Just as the cases of Zhu Xiaofei v. Beijing Administration Bureau for Industry and Commerce and Think-Tank Research Center for Health Development v. Beijing Administration Bureau for Industry and Commerce show, the restriction on the standing of activists to challenge the decisions of state agencies in court on law enforcement means the state agencies enjoy a final say on the enforcement of law when there are no obvious victims are involved in the violations of law. This legal restriction has greatly discouraged the activists or NGOs to challenge the state agencies further when they found the state agencies failed to enforce law. The only possible way for the activists to avoid the lack of standing is to play ‘victim’ sometimes, as did in the cases of Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited CompanyorTian Feng v. Guangdong Wuyeshen Industrial Development Limited Company. That’s the common strategy adopted by activists, but it will depend on the court to decide whether this strategy can be supported.

2) Unfavorable laws and regulations.

China has made tremendous progress in term of tobacco control since WHO FCTC took effect in 2006. However, it still falls short of the requirements of WHO FCTC in many respects. There is no comprehensive tobacco control law in China. The national smoking ban in public places is still not in place. No law regulates the contents of tobacco products. No law regulates packaging and labeling of tobacco products other than a loose regulation made by the State Tobacco Monopoly Bureau. These facts all hinder effective advocacy of tobacco control through PIL.

The Law on Tobacco Monopoly in 1991 was also a negative factor for PIL on tobacco control. Apart from those provisions that intend to protect the monopoly of tobacco production and sale, there are also a few provisions that reflectsome old conceptions on tobacco control. For instance, article 5 of the Law stipulates that ‘T(t)he State shall strengthen the scientific research and technical development of tobacco monopoly commodities, so as to improve the quality of tobacco products and reduce the content of tar and other hazardous ingredients in such products’. This provision means the efforts made by the tobacco industry to reduce the content of tar and other hazardous ingredients through scientific research are commendable and the slogan of ‘low tar, low harm’that has been denied by WHO FCTC and proved baseless by modern scientific evidences, is not groundless in law. It is this provision that partly contributed to the failure inthe case of Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Companywhich was initiated to challenge the ‘low tar’strategy of tobacco industry.

Even in the area of tobacco ads with most vigorous law, there is a great deal of restraints for advocacy on tobacco control. Regardless ofthe Advertisement Law in 1994 or the more vigorous new lawin 2015, there is no provision on the definition of tobacco ads. This leaves the Administration Bureaus for Industry and Commerce huge power to define tobacco ads.Furthermore, the fact that the Advertisement Law does not forbid tobacco promotion and sponsorship leaves a huge loophole enabling tobacco industry to advertise tobacco through tobacco promotion and sponsorship. That’s why quite a lot of tobacco ads placed in the name of sponsorship can’t be removed through legal actions. A case in point is that a lot of ‘tobacco schools’ which are sponsored by tobacco companies and carry the names of tobacco companies or tobacco brands still remain firm in China.

The vague legal status of international law in Chinese legal system is a negative factor as well for law advocacy on tobacco control. WHO FCTC is a very useful but not so powerful legal tool to advocate tobacco control in China.There is no general provision in Constitution or other laws on the relationship between domestic law and international law in China, although quite a lot of laws stipulate that the international laws shall prevail when they are conflicting with domestic laws. There is also no unitary legal theory on the justiciability ofinternational law in domestic courts. So the Chinese courts or the executive branches of government are usually reluctant to enforce international law directly unless there is a specific law instructing them to do so. This situation makes it hard for the activists to win a case by simply invoking WHO FCTC regardless of the provisions in domestic laws in terms of tobacco advertising, promotion and sponsorship or packaging and labeling of tobacco products.

3) Weak courts.

The role of courts is essential to PIL in any countries. But unlike U.S. or India models of PIL which to a large extent are based on the capacity of courts to make law through interpreting and invalidating existing laws and to order sweeping reforms of public institutions, the courts are playing a much less important role in PIL in China. Chinese courts explicitly do not have the authority to invalidatelaws and regulations.The remedies that Chinese courts can award are very limited and weak. The lack of judicial independence, the inability of the court to directly apply the Constitution and the limitation of the laws themselves all add up to the low rate of victory in PIL.[15]

The weakness of courts makes them vulnerable to outside pressures and reluctant to interpret laws and regulationsin a way favorable to the activists rather than to the established interests. It is especially true when it comes to powerful tobacco industry which is so heavily protected by the laws and government. For instance, in Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company, the court not only narrowly interpreted laws and regulations on the evidence issue, but also took measures to prevent the trial accessible to mediaand other activists. It deliberately held the trial in a tiny courtroom with only two extra seats available to visitors. Furthermore, it even went as far as to arrangetwo court clerks to occupy the only two visitor’s seats, which essentially had made the trial be held in camera.

Nevertheless, the defeat in most lawsuitcaseson tobacco control does not mean a total failure for law advocacy on tobacco control.Lawsuit cases are only part of PIL on tobacco control. There are far more administrative application cases which have higher rate of legal success. What’s more,even those legally unsuccessful PIL cases often can make a difference on tobacco control in the long run.

First of all, there are quite a lot of administrative applications that yield a lot of positive results despite the fact that most lawsuits on tobacco control do not end well. As mentioned above, activists and NGOs in China have played a key role in ensuring compliance with laws and regulations on tobacco control. They have achieved quite a lot of positive results in ensuring the state agencies to enforce laws and regulations by legal means. The achievements are especially tremendous in the area of tobacco ads. We can seewhat difference the NGOs and activists have made in enforcing the law and regulation on tobacco ads in the two following cases.

4) ‘Tobacco Schools’case

There had been two notorious ‘tobacco schools’ in Sichuan province. They were established under the auspices of Sichuan Tobacco Company. Both of the two primary schools were named after the tobacco company and carried the logos of the company and the slogan of‘tobacco helps you to become a useful person’on the walls. The blatant tobacco ads in the schools had been widely and constantly criticized by media including the China Central TV station since they were revealed in 2009. But no change had been made until Think-Tank made aformal legal applicationin Sept. 2012 to the Sichuan Province Industrial and Commercial Bureau for an investigation and made a threat to take further legal actions against it if it failed to do so. Upon the applications of Think-Tank, the state agency removed all of the tobacco elements in the two schools and some other schools in similar situations in Sichuan Province. So it was the legal actions that made a difference.

5) Cases on internet tobacco ads

The big change on the scenario of rampant internet tobacco ads also can attribute to the legal actions of activists and NGOs on tobacco control. According to the State Administration Bureau for Industry and Commerce in 1995,if tobacco ads were to be published or placed in the media and the places beyond the explicit ban of the Advertisement Law, a special authorization was needed to obtain from the Administration Bureaus for Industry and Commerceabove provincial level or the Administration Bureaus for Industry and Commerce authorized by them. This provision meant thatwithout prior approval, it was illegal to publicize tobacco ads in internet, the new media developed a few years after the making of the Regulation. Since 2000, internet has increasingly become the main venue for the tobacco industry to publicize tobacco ads. However, for a long time, the state agencies had almost done nothing to monitor, investigate and punish the violations of this rule for reasons unknown and most of tobacco ads in internet were illegal for lack of approval.It was the legal actions of NGOs and activists on tobacco control that had activated this rule. Quite a lot of internet tobacco ads had been removed and punished ever since the rule was pushed for enforcement. It’s worthwhile to mention that although both lawsuits on the deceptive tobacco ads in Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company and Tian Feng v. Guangdong Wuyeshen Industrial Development Limited Company failed in courts, the administrative applications to state agencies intended to remove the unlawful tobacco ads in internet were all quite successful. The tobacco companies wereeventually punished heavily for both of the deceptive ads.

Secondly, while winning cases in PIL is desirable for activists or NGOs, legal failure by no meansindicates that the efforts are completely futile. Actually, all PIL cases, no matter what legal results are, can bring about some changeson tobacco control in the long run.Like that in other areas, PIL on tobacco control usually involves multi-purpose.For one thing, many legal actions are designed to test the response of state agencies and ascertain their real altitudes on certain issues. No matter what the results are, they can be used as a basis for further legal advocacy in the future. For instance, the investigatory legal action planned by Beijing Dongfang Public Interest and Legal Aid Law Firm in late 2010 was intended to learn the situation of compliance of the smoke free regulations in Beijing and to test the responses of the different state agencies to complaints. This coordinatedaction found out that the enforcement of smoke free regulations in Beijing at that time was very weak. The most astonishing finding was that no state agencies were willing to impose fines onthe violating internet cafés according to law even though the violations had been found twice. The complaint mechanism was also clumsy, since there was no convenient way to complain for the violations. These findings were eventually covered by the media, and could have been used as a factual basis for Beijing to update the smoking ban and strengthen law enforcement in 2015.

Furthermore, the role of PIL in increasing the awareness of the general public on tobacco control and building support for lawmaking or law enforcement on tobacco control also can’t be underestimated. PIL is always aiming bigger and is never only a legal issue. It intertwines with media and publicity. It’s especially true in the area of tobacco control where the awareness of the general public on the tobacco harm and tobacco control is of paramount importance. For NGOs on tobacco control, PIL can be used as an effective way to mobilize media since it provides the media with a vivid story and a reportable event. PIL itself also is heavily reliant on media, without which it’s hard to generate social impact. It’s true in particularin the context of China where the activists usually have to practice law in a harsher legal environment than their counterparts in the U.S. or in India. For instance, although it’s regretful that the local courts did not admit the cases brought by Ms. Wang Ying from Xuchang Radio and TV University against her colleague and working institute for the harm of secondhand tobacco smoke, these widely covered cases carried positive information to the general public that tobacco smoke is harmful to your health and you should stand up for your own interest. By the same token, although the case of Li Enze v. State Tobacco Monopoly Bureau failed in court, it conveys the brutal information that State Tobacco Monopoly Bureau itselfisalso a tobacco company. You can never count on it to take proactive attitudes towards tobacco control. It is completely an irony to have it in the Leading Group of Ministries and Committees on Tobacco Control. In sum, without PIL together with other means of advocacy, it is hard to imaginethat China would have made so much progress on tobacco control in the last decade.

4. Prospect of PIL on tobacco control under new legal environment

Last decade has witnessed the rapid development of PIL and tremendous progress in law making and enforcement on tobacco control. Considering there is still a long way to go before China can fully reach the goals set by the WHO FCTC on tobacco control, PIL has the great potential to continue to play a significant role in advocating tobacco control.

Among the areas of PIL that had been explored by the activists and NGOs on tobacco control, most are worth strengthening further in future. There is limited room for activists and NGOs on tobacco control to continue to challenge tobacco industry on tobacco trademarks which supposedly contravene the Trade Mark Law and the WHO FCTC, since most similar trademarks have been challenged and the odds of winning lawsuits in future are also slim. However, there are plenty of potentialsto pursue PIL in seeking damages for tobacco harm.There is also much room to initiate PIL to prompt the state agencies to enforce laws and regulations on tobacco ads, smoke free environment, tobacco labeling and packaging and disclosure of government information.

 China has a population with one of highest smoking rate in the world. The smoking rate remains high despite of the progress made on tobacco control in recent years. The culture of smoking and taking tobacco products as valuable gifts still is well embedded in Chinese society. Most people remain in the dark about the real health risks (including dreadful lung cancer) carried with tobacco smoke. Under such a circumstance, China is really in need of anti-tobacco activists like Barb Tarbox in Canada to stand up to tell people what deadly decease smoking can cause and what dying of lung cancer looks like. We need more victims of smoking or secondhand tobacco smoke like Rose Cipollone in Cipollone v. Liggett or Norma Broin in Norma Broin v. Philip Morris, et al to sue against tobacco industry for its deceptive promotion of tobacco. We also need more Wang Yings in China to sue the workplaces for failing to protect their employees from secondhand tobacco smoke. Whatever the legal results may be, constant lawsuits brought by victims of tobacco use, especially those with serious deceases caused by tobacco smoke, will bring about a big change to the awareness of the general public on the risks of tobacco smoke.It is the awareness of the public that will play a key role in forcing the authorities to take more stringent measures on tobacco control in the long run.

The possible PIL on tobacco ads and smoke free environmentis also worth mentioning in particular. Although tobacco ads are well regulated under the Advertisement Law in 2015 in China, violations are still rampant in some grey areas, especially under such a circumstance that tobacco promotion and sponsorship is still lawful. Activists and NGOs on tobacco control need to keep a close eye on those possible tobacco ads in the name of sponsorship and make sure they do not trespass into the forbidden area of law.Furthermore, the enforcement of Administration Bureaus for Industry and Commerce at various levels is often lax without close monitoring of activists and NGOs on tobacco control. A case in point is that after the Advertisement Law in 2015 was passed, the State Administration Bureau for Industry and Commerce have tried to make an exception for the tobacco stores in enforcing the new Law despite the fact the Law itself does not explicitly exempt them. Activists and NGOs need to use PIL to challenge any of such signs on the part of Administration Bureau for Industry and Commerce to loosen enforcement.

Smoke free environment is also an area worthy of more attention for PIL. Smoke free legislation has been prosperous in Chinese cities since 2006 and the national smoke free regulation of the State Council is also reportedly forthcoming. However, the implementation of smoking bans has been notoriously poor. The lack of effective law enforcement led to low compliance of smoking bans in most Chinese cities and weak confidence of the general public on smoking bans. Although considerable progress has been made in term of enforcement in some cities, the implementation in quite a lot of cities is still unsatisfactory. Even in those cities like Beijing, Shenzhen and Shanghai with relatively rigorous enforcement, the compliance rate of smoking ban can’t be comparable to that in developed countries like Canada, Australia and Britain. This situation, to a certain extent, attributes to a lack of enough political will of the authorities to implement smoking bans, but no effective monitoring on the state agencies from civil society is also a big factor. In fact, unlike in the area of tobacco ads, very few PIL cases have been initiated to prompt the state agencies to strengthen law enforcement in past. So there is a great potential for PIL to play a role in this regard in future.

Nevertheless, there are some restraints and uncertainties ahead that may bring negative impact on PIL in future despite the great potentials. How far PIL can go,to a large extent, will depend on a few elements.

First of all, the cautious attitude of the authorities and courts on PIL and pro bono lawyersremainsan unfavorable factor on the PIL on tobacco control. Legally speaking,the concept of PIL has gained substantial legitimacy since the Environment Protection Law in 2014 and the Law on Protection of Consumer Rights and Interestsin 2013grants some NGOs the standing to initiate PIL in court. However, this positive development does not necessarily mean the prosperity of PIL in broad sense in China. Since PIL is often closely related to general rights advocacy movement, the authorities have strengthened control on public interest lawyers and NGOs out of public safety concern in recent years. PIL on tobacco control is relatively “safe”compared with that in some other areas, but it is still discouraging for pro bono lawyers and NGOs under such a political atmosphere.

Apart from the authorities, Chinese courts are also not so friendly to PIL. Many courts, to a certain extent, still regard PIL cases as frivolous and thinkpro bono lawyers as ‘trouble maker’ both in terms of law and politics. For instance, in the ruling of Li Enze v. Ms. Wang and China Tobacco Jiangxi Industrial Limited Company,the court implied that this PIL case was a frivolous lawsuit since the cost the plaintiff paid for the lawsuit was far more than the price he paid for the tobacco products. The court also played a negative tune towards PIL by saying that ‘law encourages consumers to actively protect their own interests in just way, but it does not certainly support those demands that pursue the interests beyond interests of consumers’.[16]It court also deliberately restricted the presence of media in the trial. Under such a circumstance, high rate of no admission and defeat of PIL cases in court is almost inevitable. The activists and NGOs will continue to use court as a legal platform to advocate social justice against all odds, but they have to do so in a court system not so friendly to them.

The interference and counterattack of Chinese tobacco industry can also never be underestimated in the respect of law advocacy in China. China has the most powerful tobacco industry in the world. Article 5.3 of WHO FCTC provides that ‘in setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law’. But in China, such interference in setting and implementing the public health policies with respect to tobacco control is not only widespread, but also public, since tobacco industry itself is part of the government. What’s more, it is also authorized to partly ‘lead’ the cause of tobacco control in China.With the progress made in recent years, the counterattack from the tobacco industry is also intensified. The leaders of the tobacco industry has labeled the advocacy of activists on tobacco control for comprehensive ban of tobacco advertisement, promotion and sponsorship and 100% smoke free environment as unilateralism, extremism, and expansionism.[17]Under such a circumstance that the Chinese economy is on the downturn, ‘ensuring the national revenue’ has increasingly been used as an excuse of the industry to delay or undermine the efforts to strengthen tobacco control. The accusation that activists and NGOs on tobacco control ‘takeforeign money to undermine national interest of China’ is also frequently used to demonizeand politicize the advocacy on tobacco control. Chinese government or the public may not always buy such nonsense, but the chilling effect of such accusation on tobacco control can’t be underrated. Under the strong influence of tobacco industry, the Charity Law passed in March 2016 failed to ban all tobacco sponsorship as required by WHO FCTC and NGOs on tobacco control.

Furthermore, the Law on the Management of Activities of Overseas Non-governmental Organizations is also an uncertain element for PIL on tobacco control in future. It’s undeniable fact that PIL on tobacco control in China is heavily dependent on foreign funds. Most of PIL cases so far are directly or indirectly funded by Foreign NGOs on tobacco control or public health. So it is of paramount importance that activists and NGOs can have sustainable funding from foreign NGOs or foundations. However the newly-made Law on the Management of Activities of Overseas Non-governmental Organizations, to a certain extent, has made such funding uncertain. According to the Law which took effect on 1^st January 2017, overseas non-governmental organizations are not allowed to conduct activities or fund the entities or individuals in China to conduct activities without setting up a registered representative organization in China, or without filing the temporary activities in the state agencies in advance.Furthermore, there are also some requirements for overseas non-governmental organizations to set up their official offices and conduct activities in China. This Law is intended to strengthen the monitoring of overseas non-governmental organizations in China out of national security concerns. However, this law brings a lot of risks for overseas non-governmental organizations to set up branches or conduct funding activities. Although tobacco control generally is an area with low political sensitiveness, we can’t exclude the possibility that the funding of foreign non-governmental organizations to some activists and NGOs in China will be negatively influenced.

Yang Gonghuan ed., “Tobacco Control in China”, Singapore: Springer, 2018，chapter6.

[1] “首例未成年人告烟草专卖局侵犯知情权案终审”,http://news.sina.com.cn/s/2001-09-08/351261.html, 2017年2月10日。

[2]“法学教师状告卷烟厂索要洗牙费败诉”，http://news.sina.com.cn/s/l/2007-07-12/140713432200.shtml，2017年2月10日。

[3]“女教师不堪忍受二手烟状告吸烟同事及烟厂”,http://news.sina.com.cn/s/2009-12-03/110019181769.shtml, 2017年2月13日。

[4]董哲:“工程师频频投诉室友抽烟反遭解雇”,http://news.ifeng.com/society/2/detail_2010_10/21/2848021_0.shtml,2017年 2月20日。

[5]许林贵：“北京网吧烟雾缭绕执法机关“手软”为禁烟最大阻碍”，http://news.ifeng.com/gundong/detail_2011_01/05/3994723_0.shtml，2017年2月12日。

[6]北京市海淀区人民法院行政裁决书，（2010）海行初字第00308号。

[7]北京市第一中级人民法院民事判决书,（2014）一中民终字第125号。

[8]西安市雁塔区人民法院民事判决书, （2014）雁民初字第06213号。

[9]王国平：“全国首例消费者状告烟企虚假宣传获赔万元”, http://www.chinacourt.org/article/detail/2015/07/id/1668380.shtml，2017年3月15日。

[10]张媛: “律师起诉中华香烟称其印华表有损社会主义道德”, http://news.timedg.com/2011-11/26/7427160.shtml, 2017年2月18日。

[11]北京市高级人民法院行政裁决书，（2012）高行终字第310号。

[12]北京市第一中级人民法院行政判决书（2014）一中行初字第6099号。

[13]北京市第一中级人民法院行政判决书（2015）一中行初字第1565号。

[14]Murli S. Deora v. Union of India and Others, WP 316/1999 (2001.11.02) (Public smoking case).

[15]See Huang Jinrong, HatlaThelle, and Wang Fang, China under Transition to Rule of Law：the Role of Legal Aid and Advocacyorganizations，in A Human Right to Legal Aid， Handy-Print A/S, skive, Denmark 2011, p.93.

[16]北京市第一中级人民法院行政判决书（2014）一中行初字第6099号。

[17]李宁 杨翔: “国家烟草专卖局局长：控烟要避免片面化、绝对化、扩大化倾向”, http://money.163.com/14/1203/16/ACI73U1100253B0H.html，2017年2月27日。