The case had been crawling through Japan's legal system for five years and five months when the Tokyo District Court judge in October dismissed the first suit filed against Japan Tobacco and the Japanese government.

The Lawyers' Organisation for Non-Smokers' Rights had demanded Y10 million ($95,000) in damages for six plaintiffs who have contracted illnesses associated with smoking, as well as a raft of preventative measures.

The organisation, headed by Yoshio Isayama, filed an appeal to the Tokyo High Court two weeks later.

"I don't know how the case will develop, but I have to say that I'm rather pessimistic about overturning the decision because, generally speaking, a higher court in Japan is even more conservative than a lower court," says Tadao Hosumi, a lawyer who worked alongside Isayama on the case.

The first hearing in the appeal case was held in May; the next is not scheduled until August.

And should the case be knocked back again, Isayama's team is ready to go all the way to the Supreme Court.

"The situation is improving steadily, but we still have lots of problems, such as 600,000 vending machines selling cigarettes, which is the main cause of minors smoking," says Hosumi. Then there is the price of cigarettes; in the United States a pack may cost around Y1000 ($10), he said, but they set a Japanese smoker back only Y270 ($2.50).

Passive smoking

The landmark case caught the attention of the public in Japan and prompted more non-smokers to claim their rights are being infringed.

Facilities are provided for
smokers on a railway platform

Earlier this month, a sumo fan filed a suit against the sport's governing body after he experienced "unbearable agony" as he watched three hours of the recent tournament in Tokyo.

Junichi Noda, 56, is demanding token damages of Y5650 ($54) - one quarter of the price of his ticket - for having to inhale secondhand smoke.

It seems that finally, the bad publicity that accompanies smoking in much of the rest of the world is being heard in Japan.

Japan Tobacco Inc (JT), which controlled nearly 73% of the domestic tobacco market in the year that ended March 31 2004, sold 49.2 billion cigarettes across the country during the quarter that ended on March 31 2004. And while that is an impressive amount, it is still down 3.3 per cent from the previous year.

Trends

The number of adult male smokers dipped below 50% in the summer of 2002, down 2.9 per cent from the previous year, while among women, 14% were smokers, a decline of 0.7 per cent.

JT says the decline in sales of its mainstay products is the result of concerns about the effects that smoking has on health, an aging population, price increases due to tax hikes and an economy that is only now beginning to show firm signs of a recovery after more than a decade of recession.

Unsurprisingly, the company has had to make changes; last year, it announced that it would close six of its factories in Japan by 2006 and is to reduce its staff by 4000 with early retirement packages.

Yet the firm remains upbeat, perhaps because it has seen the writing on the wall and is diversifying.

Business outlook

"As Japan's society ages further and the social climate continues to change, JT feels that relying solely on the domestic tobacco business would impede the company's growth potential," said Yukiko Seto, a spokeswoman for the company, in a statement.

"The government
has made it quite
clear that the money
is more important than the health of the Japanese people"

Tadao Hosumi, lawyer

"After considering several business opportunities, JT decided to concentrate on the pharmaceuticals and foods businesses as future sources of cash flow, along with its domestic and international tobacco business," she said.

"JT is striving to become a company that is growing globally with value-added products and diversified businesses."

That shift in business tactics may not be popular with the government, however. Annual revenue from tax on tobacco products earns the state an estimated Y2.3 trillion a year, although Hosumi says: "The government has made it quite clear that the money is more important than the health of the Japanese people."

On the one hand, he says, the Ministry of Health, Labour and Welfare is trying to reduce the number of smokers and smoking-related illnesses, while on the other, the Ministry of Finance promotes sales of cigarettes.

Split priorities

At present, the more influential Ministry of Finance appears to have the upper hand as it decides policy in the industry and supported, for example, the 1984 Tobacco Business Law.

Smokers are provided with cafes
to cater for their needs

The legislation - which Hosumi describes as "notorious" - states that its main objective is "to promote the sound development of the Japanese tobacco industry, thereby securing stable national revenues".

"It is good for the government to have lots of people smoking," says Hosumi.

"JT Corp is a joint stock company but two-thirds of the shares are owned by the Ministry of Finance, so it gets money from dividends as well as taxes on the products.

"The health ministry is supposed to be responsible for the well-being of the public, but it cannot influence tobacco matters because they come under the Ministry of Finance - which also determines the budgets of the other ministries each year," he said.

"It would be very dangerous for the health ministry to take action which may displease the Ministry of Finance."

Progress

As well as demanding that all tobacco vending machines across the country be removed, Isayama's group is calling for clearer health warnings on packaging and the withdrawal of tobacco advertising.

Other campaigns have borne fruit; more carriages on bullet trains are smoke-free, while smoking is banned in most hospitals and schools, as well as many other public facilities.

The city administration of the Tokyo suburb of Yamato announced that it would give preference to job applicants who do not smoke, while some districts of Tokyo have even outlawed smoking in the street.

To mark the one-year anniversary of the ban on smoking in the capital's Chiyoda Ward - complete with a Y2000 fine for anyone caught with a cigarette in their hand - Mayor Masami Ishikawa hailed the initiative as "a big step toward achieving a harmonious society."

In a column in the Asahi Shimbun newspaper, Ishikawa emphasised that there is far less litter in the district, while fewer fires have been caused by discarded cigarette butts.

Join the club

But while the opponents of smoking plan their next challenge, Japan Tobacco has come up with some ways to make the nation's put-upon smokers feel at home, setting up the Smokers' Style lounge, equipped with drinks vending machines and everything a smoker needs to indulge his passion, in Chiyoda ward.

Smokers take a break in the
Smokers' Style lounge

And at least the company is honest about the dangers inherent in smoking.

"We have publicly stated that there are health risks associated with smoking and we believe that people should take these conclusions into account when deciding whether or not to smoke," said JT's Seto.

"At the same time, we believe in the freedom of adults to choose whether they want to smoke. With this in mind, we are providing our customers with value-added, high quality tobacco products."