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Archive for July, 2016

Australia: progress on Tasmania’s tobacco free generation legislation

15 Jul, 16 | by Marita Hefler, News Editor

Kathryn Barnsley, University of Tasmania

In 2012 and 2014 we reported that the Australian state of Tasmania was developing mechanisms for implementing the tobacco free generation (TFG).

Tasmania has been paradoxically both a leader in legislative reform and a laggard in allocating resources to tobacco control.

The Public Health Amendment (Tobaccofree Generation) Bill 2014 was tabled in the Tasmanian Parliament in November 2014 by an Independent MP Hon. Ivan Dean. The Bill proposes to phase out the sale of tobacco products to any person born after the year 2000. The Bill is a measure to curtail supply; smoking would not be criminalised and there would be no penalties for using or possessing tobacco. The Bill was referred to a Parliamentary Committee in March 2015. It has been debated and scrutinised for well over a year. The committee was asked to look at the workability and practicality of the Bill.

The Committee, brought down its report in July 2016, making the following key findings:

  1. There does not appear to be any significant legal impediment to the operation of the Bill in delivering the policy intent.
  2. The Parliament should take a measured and cautious approach in considering a Bill which could limit or ‘extinguish’ fundamental rights relating to age, equality and liberty.
  3. The Bill raises some practical legal issues in relation to online sales and the impact of the Bill on tourism/tourists. The proposer of the Bill may wish to give consideration to amendment of the Bill to avoid negative impacts on tourism.
  4. Should the Bill be supported, appropriate education programs would be required to effectively implement the Bill. This would incur a cost and would be a matter for the Government of the day.”

A number of submissions were made including one from Lois Ireland, a retailer, who said:

“I made a conscious decision to stop gaining a profit from sales of a product that I knew to be highly addictive and that was causing long term health issues with those who I knew personally as members of my community. I knew they would go elsewhere to purchase their cigarettes but I did not wish to be further implicated in their poor health choices.

As a result, I fully endorse any moves that make it more difficult for young people to take up/continue smoking, despite any effects such measures may have on businesses. To be honest I’d be happy to see a ban on all sales – think how much lower our hospital costs would be!”

Other submissions were made by the tobacco industry and their front organisations including the Alliance of Australian retailers (AAR) which was set up to lobby against plain packaging – but seems to have extended its reach. The UK University of Bath website has exposed AAR as a tobacco industry front organisation.

The Cancer Council of Tasmania (CCT) carried out two surveys of public opinion on smoking matters including questions on TFG. The CCT survey shows that 75% of Tasmanians support the idea of a tobacco free generation, an increase on previous surveys.

The Bill: 

  • WILL prevent the sale of tobacco products to persons born since the year 2000, that is, members of the tobacco-free generation.
  • NOT prevent members of the tobacco-free generation from smoking, or attempting to purchase tobacco products. Members of the tobacco-free generation would not incur any penalties for smoking.

The Tasmanian Anti-Discrimination Commissioner has written to the Parliament to advise that the Bill does not constitute unlawful discrimination.

A number of lawyers and an international human rights expert also provided reports and advice to the Committee. Dr. Gogarty from the University of Tasmania said there was no legal impediment to the Bill, but expressed concerns about age discrimination and liberty. A comprehensive response and rebuttal to Dr. Gogarty’s advice was provided by Barrister Neil Francey, who says that Dr. Gogarty abandons a strict legal approach and adopts an “extreme libertarian” approach.

Ethicist Dr van der Eijk added, relating to the absence of a right to smoke. “It is highly unlikely that, given the toxic and addictive nature of smoking, it can be defended as liberty right……and children’s rights.” Also, “Smoking can also not be defended as a privacy right.”

Eminent international Professor of Law, and Professor of Public Policy and Urban Affairs in Boston USA, Professor W. Parmet also commented,

“Critically there is no fundamental right to exercise all of one’s choices without any, even indirect, legal hurdles. If that were the case, cigarette taxes, which also make It harder for some people to exercise their choice to smoke by raising the cost of cigarettes would also violate individual’s fundamental rights. Indeed, all public health laws would violate someone’s fundamental right, as all impose some road blocks on individual choice. ….In debating the wisdom of any particular public health law, it is important not to confuse the question of whether the benefits conferred by the law outweigh the inconveniences and hurdles It imposes, with the question of whether it violates recognized fundamental rights, such as the right to bodily integrity or free speech.”

The current conservative Liberal Tasmanian government has said that it might raise the “smoking age” to 21 or 25 years instead of proceeding with the TFG. This proposal has been met with a deluge of criticism in Tasmania, as all major local health groups support the TFG proposal and there is immense community support. Professor Simon Chapman criticised the raising of smoking age to 21 proposal as a “symbolic political gesture”.

The TFG Bill may be debated in the Legislative Council in August 2016. However, the conservative Liberal government remain opposed to the TFG, and have implemented no new initiatives on tobacco control since being elected over two years ago.

UK plain packs court decision: interests at stake ‘collide in the most irreconcilable of ways’

4 Jul, 16 | by Marita Hefler, News Editor

The decision on 19 May 2016 by the High Court of Justice of England and Wales to dismiss the legal challenges brought by the four multinational tobacco companies against the UK’s tobacco plain packaging legislation was a major blow to the industry. The 386 page ruling addresses a wide range of legal claims and evidence; together with lessons learned from the industry’s failed attempts to overturn Australia’s 2012 plain packaging legislation, it provides an important resource for countries planning to introduce similar laws.

The McCabe Centre for Law and Cancer, a joint initiative of Cancer Council Victoria and the Union for International Cancer Control, has prepared a paper on the UK decision which draws out eight key aspects likely to be of widest relevance to litigation and policy development in other jurisidictions. Included in the aspects of the ruling which are explored and analysed are: the intent and limits of the laws, the conflicting interests of the tobacco industry and public health, the complementary nature of comprehensive tobacco control measures, and the relevance of the World Health Organisation Framework Convention on Tobacco Control.

Some notheworthy points in the analysis:

  • “…the Court points out that tobacco companies overstate the restrictive effects and implications of standardised packaging legislation” (page 4)
  • “The Court noted that the interests at stake ‘collide in the most irreconcilable of ways” (page 4)
  • “The Court notes that not all rights and interests are of equal value or worth. The protection of public health is one of the highest of all public interests. Health is a fundamental right” (page 5)
  • “…the Court notes that effective tobacco control requires the implementation of a number of complementary, mutually reinforcing measures, and that it can be difficult (if not impossible) to evaluate the contribution of individual measures in isolation to the reduction of tobacco use” (page 6)
  • “…the Court recognises that tobacco control does not and cannot stand still if it is to be effective (page 7)
  • “…the Court recognises the fundamental reality of intellectual property rights – they are created and protected to serve public purposes and interests, and are not absolute. Their exercise can be limited or restricted to serve other public purposes and interests. Public health is universally recognised as a public purpose and interest which justifies limitations and restrictions on the exercise of intellectual property rights” (pages 10 and 11)
  • “…the Court explains why, even if standardized packaging laws did constitute an expropriation of property, standardized packaging would fall within the category of ‘exceptional’ circumstances in which it would not be appropriate to require the payment of compensation” (page 13)

The full paper can be accessed by clicking here.

The McCabe Centre for Law and Cancer Framework Convention on Tobacco Control Knowledge Hub provides a public resource on legal issues relevant to tobacco control. Click here to link to the Hub.

 

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