Poluidor-pagador, saúde pública e responsabilidade civil: a internalização das externalidades negativas da indústria do tabaco

Abstract

This research focuses on the themes of the polluter pays principle, civil liability and the public health damages caused by smoking. Specifically, it was intended to find an answer to the question of in which extension, considering the polluter pays principle premises, civil liability of cigarette manufacturing companies established in Brazil would be an appropriate and viable way of internalization, in the tobacco production chain, of state health care costs associated to smoking-related diseases. To this end the research aimed, first, to investigate and describe tobacco production chain functioning and its repercussions and impacts on economy and health; to inquire the position and role of cigarette companies in this contexto; in addition to exposing state regulation history through anti-smoking rules and policies. Then, it targeted to present the main attributes of the polluter pays principle and (based on them) demonstrate that smoking related diseases are negative externalities of the tobacco production chain, also discussing internalization measures proposed in the academic field. And finally the investigation intended to analyze if and how the civil liability of cigarette companies established in Brazil would serve the purpose of the desired internalization. The research was undertaken using analytical, hypothetical-deductive and dialectical methods. Comparative and historical methods were used in therms of procedure. In addition, the investigation was developed through bibliographic, documentary and jurisprudential research, with collection of informations in official databases of national and international bodies, consisting of an applied, qualitative, quantitative and analytical research. As for the results, it was found the insufficiency of the means currently employed (state regulation and taxation) to internalize the state costs of treating related tobacco diseases. Then, it was verified that the strict civil liability of the cigarette companies that control the national market, judicially promoted by the State, due to the risk of the activity, is an adequate and viable way to realize the suggested internalization. Besides, it was established the possibility of using the polluter pays principle to protect public health, being also proposed the applicability of the environmental liability rule in the case, through the formation of a civil liability for transindividual damages microsystem, based on the application of the dialogue of sources theory. Finally, it was found that the polluter pays principle purposes’ achievement and the effectiveness of the measure proposed in the case demand also the liability of the foreign parent companies, which control the businesses operated by their subsidiaries in Brazil.[resumo fornecido pelo autor]