Earlier this year, tobacco control advocates from around the world supported an effort by their counterparts in Japan to block a proposed appointment of Mr Katsuhiko Honda, former President of Japan Tobacco, to serve on the Board of Governors of NHK, Japan’s public broadcaster (Japan’s equivalent of the BBC). Unfortunately, the temporary success there has been fully reversed.
This month, Honda’s name came through again, this time after the summer election where a coalition led by the powerful Liberal Democratic Party (LDP) obtained a majority in the Upper House and accordingly the LDP gained essentially complete control over the nation’s legislative affairs. Renominated by Prime Minister Abe, Mr. Honda’s appointment was approved by both houses of Japan’s national Parliament on Friday 10 November.
According to the University of Hawai’i's William S. Richardson School of Law Professor Mark Levin, author of a Spring 2013 law journal article on Japanese tobacco control law and policy: “This appointment is troubling for many reasons, work in tobacco control being just one. Nonetheless, the fact that this appointment violates Japan’s international obligations under the World Health Organization Framework Convention on Tobacco Control Article 5.3 seems very clear. At the very least, this matter deserves to be noted and criticised accordingly with regards to international tobacco control advocates’ reports on and discussions with Japan.”
Tobacco control advocates in Japan are dismayed both for the immediate implications to their efforts and the challenge to the application of Article 5.3′s principles more broadly. Katsuhiko Honda still serves as an adviser to Japan Tobacco Inc., while this posting will give him direct authority over important management and policy decisions and presumably indirect sway in NHK’s daily operations as well. The Japan Society for Tobacco Control has condemned the move. (Japanese)
However, Levin points out that context here also matters. ”Of course, Mr Honda’s desire to serve might well be driven by his unmitigated pro-tobacco industry agenda. But it’s important to note that the motivation for Abe’s selection of Honda may be barely related to tobacco control, at least from Mr Abe’s perspective.”
As widely reported in the national press, the appointment comes as part of a larger political move by Abe to secure a strong say in the selection of NHK’s next president and general affairs of management and budget. Abe seems to be getting many players in place for a dramatic set of legal, political, and even constitutional changes to swing Japan to the right. In this, Honda is a truly long-standing and trusted friend, having been Abe’s private home academic tutor in the future Prime Minister’s high school days.
A guest blog by Andy Rowell, research fellow at the Tobacco Control Research Group, University of Bath, and editor of TobaccoTactics.org
Landmark TPD debated in Europe this week.
Multi-million-pound lobbying campaign inflicted on Brussels by tobacco industry.
This week is crunch time in Brussels for public health.
European Parliament MEPs will debate the landmark Tobacco Products Directive, seen by public health advocates as a crucial measure in reducing the harm from tobacco across the EU.
For the last two-and-a-half years, we have been monitoring the activities of the tobacco industry under a ground-breaking academic project at the University of Bath, which has been part funded by Cancer Research UK. Instead of just focusing our output on academic journals we have also developed a wiki, called TobaccoTactics.org, which has more timely access to our research findings.
Tobacco is unique. No other product kills one in two of its long-term users. If someone invented the cigarette today, it would never make it onto a supermarket shelf. It is now over 60 years since the link between cancer and smoking was first discovered, but millions of us remain addicted.
The reason for this, in part, is one of the most sophisticated and well-funded public relations campaigns ever undertaken by an industry. The tobacco companies set out to deny the scientific evidence of the harmfulness of their product and the addictiveness of nicotine. The object is always to try to sow confusion and doubt and delay action.
Such tactics have again been evident in the multi-million-pound lobbying campaign the industry has inflicted in recent months on Brussels. New leaked documents from Philip Morris International (PMI) reveal the extent of this campaign, which targeted the three pillars of Brussels decision-making: the European Parliament, the European Commission and European Council.
PUSH OR DELAY
The documents reveal that by mid-2012, the overall strategic objective of PMI’s lobbying campaign was to either “Push” (i.e. amend) or “Delay” the Directive and “block” the proposals coming from the relevant Directorate on health, DG Sanco, which was in charge of the proposals. To this end, PMI employed a two-fold technical and political strategy to ensure it received as many “negative opinions” from other Commission DGs as possible, as well as to try and ensure a political commitment from other business-friendly Commissioners to oppose what PMI was labelling as excessive legislation. PMI identified key messages to push in its lobbying campaign, especially in relation to the Inter-Service Consultation between the directorates, arguing there was a need to “break” into the “silo” of the European Commission. The main lobbying messages used by the company were that the TPD proposals lacked “legal basis”, “evidence”, “logic” and a “market analysis”.
“TRIGGER NEGATIVE OPINIONS”
Just as PMI had done fighting proposals on Point of Sale and Plain Packaging in the UK, the tobacco giant was keen to highlight the “illicit trade problem”, despite its historical involvement in smuggling. For more information on this see TobaccoTactics.org on smuggling. The company set out to “trigger negative opinions” amongst other Commissioners or their senior advisors, known as their cabinet, and set out to get other “high-level influencers” to directly engage with the Commissioners. The tobacco companies such as PMI have a history of using so-called third party techniques in their lobbying campaign, using other organisations or people to influence the debate on the industry’s behalf.
The reason is simple: the use of third parties removes the message from the interested messenger. Moreover, the tobacco industry is such a discredited voice that it has to look for someone else to be its ventriloquist dummy. The public or a politician may be sympathetic about a corner shop going out of business, but they would have less sympathy towards an industry which kills its long-term customers and whose profits stretch into billions.
LED BY THIRD PARTIES
The documents reveal that PMI’s anti-TPD lobbying campaign, via social and traditional media, would be “led by third parties”. The tobacco giant identified tobacco growers, small and medium-sized businesses, other trade organisations, unions, suppliers, intellectual property organisations, employers’ associations and even consumer associations to front its campaign for it.
And just as the industry used retailers against Point of Sale Display Ban and Plain Packaging in the UK, so they have been central to PMI’s lobbying campaign in Brussels. PMI outlined how the retailers would lobby other parts of the Commission and “promote events to gain visibility” for the campaign. As well as retailers based in Brussels, national retailers associations across the EU were also brought in to help, too.
Another key constituency to front the campaign were tobacco growers and processors. PMI organised meetings between tobacco growers’ unions, such as UNITAB, the European Association of Tobacco Growers and Fetratab, the European Federation of Tobacco Processors, with key officials at the Commission, including a meeting with the Cabinet of the European President Manuel Barroso.
The leaked documents also outline in detail PMI’s strategy in the European Parliament. This time, the tobacco giant undertook direct lobbying as well as indirect. By mid-2012, nearly a third of MEPs had been lobbied by PMI, some 233 MEPs in total. Some MEPs by then had met the tobacco giant four to five times, with meetings happening on a regular basis. Almost half of the European People’s Party and European centre-right groups met with PMI’s lobbyists, the documents show.
At the parliament, the company also focused its lobbying efforts on two influential committees, ENVI and IMCO. The ENVI committee – Environment, Public Health and Food Safety – was tasked with overseeing the TPD through the Parliament. PMI set out to “Break ENVI’s full control on the dossier.” Heads of national delegations were lobbied, as were the “political heavyweights” from each political party. The company sought to “secure political agreement though top level contacts”.
EXCLUDING MENTHOL FLAVOUR
PMI also set out to lobby the Council, in order to create a “blocking majority” against any public health measures it deemed “extreme”. One of these measures is the banning of certain flavours including menthol. PMI’s objective was “exclude” menthol from the TPD. It wanted to get different member states with “significant menthol segments to oppose a menthol ban in TPD at the Council”.
In order to do this it wanted to “neutralise” lead countries in the menthol debate, such as Germany. The use of language such as this is indicative. Here we have a transnational company effectively planning to politically nullify the most powerful EU country. This multi-million-euro lobbying campaign raises all kinds of issues, two of which are deeply important for public health and the political process. The fact that PMI has had such extensive access to the Commission and hundreds of MEPs is clearly a breach of the Framework Convention on Tobacco Control. Article 5.3 of the Convention requires signatories to protect their health policies “from commercial and other vested interests of the tobacco industry”. This clearly has not happened in this case.
“We are deeply concerned about the astounding level of access to MEPs by tobacco lobbyists which has been exposed in the leaked Philip Morris International documents,” they wrote.
PMI has also voluntarily signed up to the EU’s Transparency Initiative and is meant to accurately record how many lobbyists and how much money it is spending lobbying in Brussels. The documents reveal that PMI has been using a significant number of lobbyists and consultants. One spread-sheet outlines that 161 employees and consultants were engaged in lobbying concerning the TPD. By mid-2012, the documents also reveal, PMI had spent €1.25 million on consultancy and expenses fighting the proposals.
TPD MAY BE PUT BACK YEARS
In contrast, PMI only declares nine lobbyists in its entry to the EU Transparency Register. For the whole of 2012, the company estimated that its lobbying spend had been €1 million–€1.25 million. Behind the scenes we know the lobbying will continue right up to any vote. Via the documents we only have a small snapshot of how widespread and pervasive PMI’s lobbying campaign has been. PMI’s key aims are to reduce the size of health warnings and ensure menthol cigarettes are not banned. If the industry can delay the vote at the Parliament and also at the council again, the whole Directive may be put back years. So, just as it has done many times before, the industry will have delayed action, whilst the profits keep rolling in
Thus, the regional and national governments are salivating. Amendments to labor and urban planning laws and tax breaks have already been negotiated. The repeated requests from the president of the autonomous community of Madrid, Ignacio González, from the conservative People´s Party (PP), that the central government amends the law seem to be having their effect. Recently the minister of health, social services and equality, Ana Mato, also from the PP, said that the Government is “looking for ways” to “reconcile the protection of health with the creation of jobs”. In fact, according to the newspaper El Mundo, the change has already been decided: smoking will be allowed in certain areas on all current 41 casinos throughout the country and on those to be built in Eurovegas. The daily La Razón states that the law will be amended before November.
Health workers and other citizens must be aware of these manoeuvres and press health authorities at all levels that no concessions must be given to tobacco companies or others whose interests in profit threaten public health.
1.- Mcgrath, DS and Barret, SP (2009), The comorbidity of tobacco smoking and gambling: A review of the literature. Drug and Alcohol Review, 28: 676–681. doi: 10.1111/j.1465-3362.2009.00097.x
2.- McGrath DS, Barrett SP, Stewart SH, and McGrath PR. A Comparison of Gambling Behavior, Problem Gambling Indices, and Reasons for Gambling Among Smokers and Nonsmokers Who Gamble: Evidence from a Provincial Gambling Prevalence Study Nicotine Tob Res (2012) 14 (7): 833-839
The Spanish National Committee of Smoking Prevention, a coalition of scientific and medical organisations, together with official professional colleges of doctors, nurses, psychologists and dentists, and international health experts, have condemned proposed changes to Spain’s smoke free laws.
Exceptions to the law are being demanded by Sheldon Adelson, a US gambling magnate who wants smoking to be permitted in a casino he plans to build in Madrid. Dubbed EuroVegas, it is expected to be the largest gambling resort in Europe. (BMJ report here.)
The current tobacco act of Spain, introduced in 2010, prohibits smoking in all enclosed public spaces, and enjoys widespread respect and support from the Spanish population. Prior to its introduction, the 2005 act allowed smoking at the bar owner’s discretion.
Government sources are reportedly working on a formula that will legally enable regions to make exceptions in the legislation. According to Spanish media outlet El Pias, Vice President Soraya Sáenz de Santamaría has said that “there is a procedure for amendment of laws”.
Public health doctor Joseba Zabala Galán, coordinator of the grassroots movement Don’t Touch the Law, and member of the board of the Spanish National Committee of Tobacco Prevention said: “Allowing the 17 autonomous communities the ability to establish differences in the smoke-free laws, besides being a legal by-pass, would mean the end of the current Spanish smoke-free model. It would be a terrible precedent that would weaken the current successful strength and collective belief of the smoke-free law as a real and effective health public tool. We urge all concerned citizens and organisations to support our campaign to keep the current law.”
Editor’s note: The first edition of the ASEAN Tobacco Control Atlas was launched to coincide with the conference. Click here to read additional reporting by SEATCA and download the report.Dr Marewa Glover from the University of Auckland Centre for Tobacco Control Research writes here about how e or m health ideas are an area that need more attention, and here about the importance of helping smokers quit to achieve Endgame goals.
The Asia Pacific Association for the Control of Tobacco (APACT) marked a milestone with its 10th APACT Conference in Chiba, Japan last 18-21 August 2013, with a record 785 delegates from 42 nations participating.
In his David Yen Memorial Lecture, Mr. Kyoichi Miyazaki traced the conference’s history back to the visionary advocates who contributed to APACT’s establishment in 1989 and its early years of growth (particularly David Yen, Ted Chen, Judith Mackay, Prakit Vathesatogkit, Gregory Connolly, Richard Daynard, Terry Pechacek, Takeshi Hirayama, David Sweanor, Nigel Gray, Martin Kawano, and Kwan-Mo Chung, among others) in response to pressure to open the Asian markets to United States (US) tobacco companies wishing to invade the region.
Dr. Judith Mackay immediately followed up with a forward-looking plenary lecture on the tobacco endgame in line with the conference theme “Ending the Tobacco Epidemic – Protecting and Keeping Healthy Lives”, and over the next few days, best practices for measures to reduce tobacco consumption, such as optimal tobacco taxation, cost-effective cessation, and smoke-free policy advocacy, were discussed in plenary sessions, symposia, and poster presentations. Particular recognition was given to Australia for legislating the world’s first plain packaging of tobacco products, to Thailand for standing up to Big Tobacco’s intimidation by litigation for requiring the world’s largest (85%) pictorial health warnings, and to New Zealand for trendsetting a 2025 endgame target.
In contrast, the conference also recognized the varying degrees of tobacco control implementation in individual countries and underscored the need for full and accelerated FCTC implementation across our region in order to slow the tobacco death clock. Indonesia, for example, remains the only Asian country not a party to the FCTC, and conference host, Japan, still has no national law to protect the public from secondhand smoke. In this regard, delegates and speakers also shared experiences relating to the increasing incidence and overtness of tobacco industry interference in public policy (e.g. through their so-called Corporate Social Responsibility (CSR) activities, litigation against effective tobacco regulation, and stakeholder engagement in international trade policies) and called on governments to immediately and fully implement FCTC Article 5.3 and its guidelines, to ban CSR activities by the industry, and to explicitly exclude tobacco products from international, regional, and bilateral trade and investment agreements, such as the Trans-Pacific Partnership agreement currently being negotiated, noting that, except for the US, all TPP negotiators are Parties to the FCTC.
The 10th APACT further recognized the importance of the youth as future leaders who must be meaningfully engaged to realize the tobacco endgame in the Asia Pacific region, because just as in 1989, continuing collaboration is needed to overcome Big Tobacco, which relentlessly targets young people of Asia for its profits.
The next APACT Conference will be in 2016 in Qingdao, China.
An enormous set of lungs demonstrate in graphic detail the effect of smoking
Update: On 1 August, 140 youth and students held a protest rally at the World Trade Centre in Bangkok, location of the Philip Morris International offices, to show support for 85% pictorial warnings, and to symbolise ”140 deaths from tobacco use every day” in the country.
To: Manager of Philip Morris International (Thailand) Limited and Manager of Japan Tobacco International (Thailand) Limited
Subject: Request to withdraw the lawsuit against Ministry of Public Health on the regulation requiring 85% pictorial health warning on cigarette packages
Due to the lawsuit filed by your company against Ministry of Public Health Thailand on the case of 85% pictorial health warning on cigarette packages regulation at the Administrative Court, we, Youth Network in Thailand, would like to request you to withdraw this current lawsuit against Ministry of Public Health Thailand.
We are well aware that you have great concern of decreased cigarette sales volume as a result of 85% pictorial health warning regulation. This is because the new warning will provide clearer facts to consumers. In particular, it will raise awareness on Thai children and youth, who are your targets, not to initiate smoking. You should be fully aware that in 2011, there are already 2,200,000 Thai children and youth who are your current customers, not to include 10 million of adult customers. Your company will continue to gain major profit from them in many decades.
You may need to ask yourself whether your effort to avoid compliance to Thai domestic law by filing the lawsuit against Ministry of Public Health, in order to increase sales volume of your products by attracting more children and youth to become your customers in the replacement of those who already died or in illness, is ethical practice.
We believe that you have enough expertise to initiate other business that benefits children and youth development including your own children. Youth always welcome new innovation but not for cigarettes that kill its consumers.
On behalf of the youth network, we would like to request you to withdraw the lawsuit against Ministry of Public Health Thailand on the case of 85% pictorial health warning on cigarette packages regulation, and request you to comply with the Tobacco Control Law of Thailand.
On behalf of the organizations as below:
Pak Dee Gang youth network,
Youth Network of Bangkok,
Youth Council of Satorn, Bangrak, Rajathevi, Watana, South Bangkok
Pharmacy Students ‘Union of Thailand,
Ya Mo Student in Public Health
Public Health and Health Sciences Students Association of Thailand,
Public health student, Network of Health Education and Behavioral Sciences Faculty Public Health Mahidol University,
Young Filmmakers of Thailand, Fongnom FILMS,
Network of Non Smoking generation /Teachers Networking for Smoke-Free Schools
Today marks the launch of the first-ever national mass media campaign to warn people of Cameroon about the harms of tobacco. The campaign, called ‘Cigarettes Are Eating Your Baby Alive,’ was developed by the Ministry of Health and World Lung Foundation. It graphically depicts how tobacco harms not both smokers, as well as their children and loved ones exposed to tobacco smoke. It will air on TV, radio, outdoor venues and SMS for eight weeks. The campaign is designed to empower citizens with new knowledge and spur advocacy and government to protect citizens from tobacco.
The campaign concept was rated as effective by African audiences in rigorous testing of tobacco control messaging conducted by World Lung Foundation in 2012. It was originally developed by the New York City Department of Health and Mental Hygiene and has been used effectively in Bangladesh, India, Mexico, Russia, and Vietnam, among other countries.
This mass media campaign was carried out with the technical and financial support of the Africa Tobacco Control Consortium (ATCC), Africa Tobacco Control Alliance (ATCA) and the Framework Convention Alliance. Additional funding was provided by the Bill and Melinda Gates Foundation and Bloomberg Philanthropies.
To view the public service announcement (French and English), click here.
World No Tobacco Day (WNTD) is held every year on 31 May. The World Health Organisation (WHO) and partners everywhere highlight the health risks associated with tobacco use and advocate for effective policies to reduce tobacco consumption. In 2013, the theme was ban tobacco advertising, promotion and sponsorship.
A comprehensive ban of all tobacco advertising, promotion and sponsorship is required under the WHO Framework Convention for Tobacco Control (WHO FCTC) for all Parties. Evidence shows that comprehensive advertising bans lead to reductions in the numbers of people starting and continuing smoking. Statistics show that banning tobacco advertising and sponsorship is one of the most cost-effective ways to reduce tobacco demand and thus a tobacco control “best buy”.Despite the effectiveness of comprehensive bans, only 6% of the world’s population was fully protected from exposure to the tobacco industry advertising, promotion and sponsorship tactics in 2010.
To help reduce tobacco use, comprehensive advertising, promotion and sponsorship bans work to counteract:
the deceptive and misleading nature of tobacco marketing campaigns;
the unavoidable exposure of youth to tobacco marketing;
the failure of the tobacco industry to effectively self-regulate; and
the ineffectiveness of partial bans.
Attempts by the tobacco industry to undermine the WHO Framework Convention on Tobacco Control (WHO FCTC) are becoming ever more aggressive. For example, where jurisdictions have banned advertising of tobacco products through point-of-sale displays – known as tobacco “powerwalls” – or banned the advertising and promotional features of tobacco packaging through standardised packaging, the tobacco industry has sued governments in national courts and through international trade mechanisms. The tobacco industry also uses sponsorship and especially corporate social responsibility tactics to trick public opinion into believing in their respectability and good intentions while they manoeuver to hijack the political and legislative process. Click here to read more about WHO WNTD 2013 and see campaign materials.
World No Tobacco Day Awards
Every year, WHO recognizes individuals or organisations for their accomplishments in the area of tobacco control. This year, Mr Paul Kasereka Lughembe of the Democratic Republic of Congo and the Honourable Dr Pradit Sintavanarong, Minister of Public Health, the Kingdom of Thailand were recognised for the WHO Director-General Special awards. His Excellency the Prime Minister Recep Tayyip Erdoğan, Republic of Turkey received the WHO Director-General’s Special Recognition certificate. Click here to read a full list of awards given in all six WHO regions.
Other events by country/region:
Bolivia: the Health and Sport Ministry, in coordination with the Pan American Health Organization (PAHO), WHO, the Municipal Government of La Paz, the Bolivian Police and Armed Forces organised a festival to inform people of the negative effects that nicotine produces on the body. WNTD was also an opportunity highlight the findings from a study which showed increased smoking among young women, and a lower age of initiation. Read more here.
Congo: The tobacco control group ROCAT in partnership with the Ministry of Health and Population and WHO Country celebrated World No Tobacco Day 2013 with a series of events including a press Conference by the Minister of Health briefing, outreach campaigns, and TV and radio coverage. Read more here.
Gabon: WNTD in Gabon focused on a number of high level meetings held with key authorities including the President of the National Assembly and the Minister Delegate to Health. Held from 28-30 May, the meetings were a chance to discuss government policy making in relation to tobacco control. Read more here.
India: a range of events were held around the country, including a national stakeholder consultation on improving the implementation of TAPS bans, rallies, skits, art exhibitions and ‘walls of shame’ of TAPS violations. Read more here.
Jamaica: An outside broadcast addressing tobacco advertising, promotion and sponsorship (TAPS) was held, as well as a national forum. Read more here.
Pacific Islands: The Cook Islands received a WHO WNTD award for its progress in tobacco control since ratifying the FCTC in 2004. Several countries also participated in a project designed to encourage sharing of information by email. Participating countries chose a letter from W, N, T or D to display as part of their activities with a flag in the photo. The intention is to make a poster of tobacco control in the Pacific by “stitching” the photos together featuring the letters to spell out WNTD 2013. Read more here.
Pakistan: Activities included seminars, orientation sessions, rallies/walks, speech/poster/sports competitions, interactive theatre, signature campaigns, banner/poster displays, picketing & meetings. Participants included local government officials, law enforcement authorities, parliamentarians, health & education government departments, media, lawyers, civil society organizations, youth and community members. In Islamabad, a 150 feet long banner carrying signatures from tobacco control activists from all over the country demanding strict tobacco control laws and their effective implementation was displayed. Read more here.
Poland: A seminar to integrate efforts for effective enforcement of ban on tobacco advertising, promotion and sponsorship took place on 29 May. It was accompanied by a photographic exhibition featuring examples of tobacco industry violation and circumvention of TAPS bans at sport events and other cultural, educational, social and political activities. Read more here.
Romania: World No Tobacco Day in Romania highlighted the European Commission’s ‘Ex-smokers are unstoppable’ campaign. A media roundtable was held, where two doctors discussed the benefits of smoking cessation. Two ex-smokers also shared their personal stories of quitting smoking. Read more here.
Switzerland: NGO CIPRET ran an advertisement campaign in the canton of Geneva for WNTD with posters displayed in over 350 locations throughout the city and canton, and large ads in newspaper. As Switzerland has very weak legislation concerning tobacco advertising, promotion and sponsorship the campaign was somewhat provocative – and provoked a strong reaction from the advertising industry. This post also contains an outline of events at WHO headquarters. Read more here.
The Philippines: The Philippines took a creative and confronting approach to WNTD.In the capital Manila, commuters were stunned to find grisly crime scenes in various locations in the metro. The cause of death: tobacco. The tobacco ‘crime scenes’ were actually art installations vividly illustrating what tobacco companies don’t want people to see: smoking kills. Read more here.
USA: Is this the world that tobacco ads hope to build? This the question asked by a video produced by Action on Smoking and Health (ASH). Click here.
Vietnam: social media, a bike rally and public transport get the message out. The national week of Tobacco Control in Vietnam kicked off with a ceremony held on 25 May, which attracted 450 participants from the National Assembly, Government Offices, related Ministries, WHO Vietnam, Tobacco Control Working Groups, mass media and students. Colourful local events were also held in Hue and Nha Trang cities. Read more here.
Editor’s note:This is the first in a series of World No Tobacco Day (WTND) reports from around the world.
In this post, we hear from Dr Pascal Diethelm of the Swiss organisation OxyRomandie. Dr Diethelm attended the World No Tobacco day event at World Health Organization (WHO) headquarters. The keynote speaker was Ms. Jane Halton, Secretary of the Australian Department of Health and Ageing, who was elected chair of the WHO Executive Board on 29 May.
Dr Diethelm gave a presentation on his association’s successful fight against the sponsorship of the last major tennis tournament by a tobacco brand, the Davidoff Swiss Indoors. He was then presented the WNTD Award. The event was attended by representatives of a dozen Member States. The Australian delegate took the floor and announced that Australia was providing extra-budgetary contribution to the FCTC amounting to approximately 1 million dollars.
Dr Diethelm also tells of the actions by CIPRET, a Geneva tobacco control NGO of which he is a board member:
CIPRET ran an advertisement campaign in the canton of Geneva for WNTD with posters displayed in over 350 locations throughout the city and canton, and large ads in newspaper. As Switzerland has very weak legislation concerning tobacco advertising, promotion and sponsorship (some newspapers being saturated with tobacco ads, especially those whose readership has a large proportion of teenagers), the campaign was somewhat provocative. See the three posters which were used here. (Advertising kills/Advertising makes you impotent/Advertising causes cancer)
This campaign has triggered interesting reactions.
Firstly, the most widely read newspaper of Switzerland, 20Minutes – which is a free newspaper – refused to accept the ad when they saw it. The contract had been signed and the place had been reserved in the 31 May edition of the newspaper, but when they received the PDf file, they unilaterally cancelled and refused to publish it. 20Minutes is a newspaper in which tobacco companies advertise their products massively, especially in the ‘People’ pages, whose readership is predominantly teenagers and young people.
Secondly, the Swiss Advertisers’ Association (Publicité Suisse) filed a complaint against the campaign before the Swiss Commission for Loyalty in Commercial Advertising, which is a self-regulatory body of the Swiss advertising industry (where the jury is composed in its majority of representatives of the advertising industry, ie of members of Publicité Suisse – which means they will be judge and party). The advertisers’ association claims that they are defending freedom of expression. They have sent letters to the Geneva municipal authorities asking that the outdoor posters be immediately covered to hide the “offending” message (see letter here in French). Publicité Suisse claim the message is insulting, deceptive and defamatory, arguing that the only effect of tobacco advertising is to incite smokers to switch brands (a familiar argument to tobacco control advocates).
The Tribune de Genève published two articles about this story (here and here). The second has prompted me to make a comment (first comment listed) saying in substance that to the well known slogans of Orwell’s Newspeak, “War is Peace”, “Freedom is Slavery”, “Ignorance is Strength”, Publicité Suisse have added a new entry: “Freedom of Expression is Censorship”.
The High Court of Australia’s ruling on the plain packaging of tobacco products is one of the great constitutional cases of our age. The ruling will resonate throughout the world – as other countries will undoubtedly seek to emulate Australia’s plain packaging regime.
Having announced its ruling some weeks ago now, the court recently published the reasons for its decision on tobacco companies’ challenge to Australia’s regime for the plain packaging of tobacco products.
By a majority of six to one, the High Court of Australia rejected the arguments of the tobacco companies that there had been an acquisition of property under the Australian Constitution. The majority judges variously described the case of the tobacco companies as “delusive”, “synthetic”, “unreal”, and suffering “fatal” defects in logic and reasoning. The dissenting judgement was by Justice Heydon.
“Many kinds of products have been subjected to regulation in order to prevent or reduce the likelihood of harm,” wrote Justice Kiefel, noting that labelling is required for medicines, poisonous substances as well as some food “to both protect and promote public health.”
Discussing the history of tobacco regulation in Australia, she summarised the cumulative impact of public health measures and suggested plain packaging was but the latest of a long line of tobacco control measures in Australia.
Noting the links between smoking tobacco and fatal diseases, Justice Crennan observed that the regime implemented international health law, “The objects of the Packaging Act are to improve public health and to give effect to certain obligations that Australia has as a party to the World Health Organization Framework Convention on Tobacco Control.”
“Legislative provisions requiring manufacturers or retailers to place on product packaging warnings to consumers of the dangers of incorrectly using or positively misusing a product are commonplace,” she insisted.
Justices Hayne and Bell observed, “Legislation that requires warning labels to be placed on products, even warning labels as extensive as those required by the Plain Packaging Act, effect no acquisition of property.”
Even the dissenting judge, Justice Heydon described tobacco manufacturers as purveyors of “lies and death”.
Intellectual property and public policy
An important theme of the ruling was the nature and role of intellectual property law. The judgements stressed that intellectual property law is designed to serve public policy objectives – not merely the private interests of rights-holders.
Chief Justice French emphasised the public policy dimensions of intellectual property law, noting that trade mark legislation has “manifested from time to time a varying accommodation of commercial and the consuming public’s interests.”
In his swansong, retiring Justice Gummow commented that “trade mark legislation, in general, does not confer a ‘statutory monopoly’ in any crude sense.” The judge emphasised that the Trade Marks Act did not confer “a liberty to use registered trade marks free from restraints found in other statutes.”
Discussing the nature of modern trade mark law, Justice Crennan said that the aim of trade marks was not only to distinguish the products of one registered owner from another. She observed, “It became clear as argument advanced that what the plaintiffs most strenuously objected to was the taking or extinguishment of the advertising or promotional functions of their registered trade marks or product get-up, which functions were prohibited by the Packaging Act.”
Constitutional law and the acquisition of property
The majority of the High Court of Australia held that the plain packaging regime did not amount to an acquisition of property. This ruling is consistent with precedents on intellectual property and constitutional law, such as the Grain Pool case, the Nintendo case, and the Phonographic ruling.
In a judgement notable for its clarity and precision, Justices Hayne and Bell ruled, “The Plain Packaging Act is not a law by which the Commonwealth acquires any interest in property, however slight or insubstantial it may be.”
“The Plain Packaging Act is not a law with respect to the acquisition of property,” they concluded.
Justice Kiefel said, “The central statutory object of the Packaging Act is to dissuade persons from using tobacco products. If that object were to be effective, the plaintiffs’ businesses may be harmed, but the Commonwealth does not thereby acquire something in the nature of property itself.”
Chief Justice French held that the arguments of the tobacco companies were fatally flawed.
In his dissent, Justice Heydon complained generally about the government encroaching upon the acquisition of property clause, “The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.”
The aftermath of the decision
The decision on plain packaging of tobacco products is undoubtedly one of the landmark rulings of the High Court of Australia – with its discussion of public health law, intellectual property law, and constitutional law. It is certainly not a quirk of Antipodean constitutional law, as alleged by British American Tobacco.
The High Court of Australia is a well-respected superior court – its precedent will be influential throughout the world. Indeed, the decision chimes with rulings by the Supreme Court of Canada and the South African Supreme Court on public health and tobacco control.
The decision will also encourage other countries to join an “olive revolution”, and introduce plain packaging of tobacco products. After the ruling, Tariana Turia, New Zealand’s associate minister of health, said, “This is more than just a victory for the Australian government, I think it is a global victory.”
New Zealand, India, the United Kingdom, Uruguay, and Norway are particularly keen to follow Australia’s lead. And World Health Organization director-general Dr Margaret Chan said, “With so many countries lined up to ride on Australia’s coattails, what we hope to see is a domino effect for the good of public health.”
As a result of the High Court of Australia’s ruling, Australia will no longer be “Marlboro Country”. This decision to deface the Marlboro box represents the future of tobacco control.
Matthew Rimmer is an academic at the Australian National University, and abides by its policy on the responsible practice of research: http://policies.anu.edu.au/policies/responsible_practice_of_research/policy Matthew Rimmer does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations. Indeed, the Australian National University strictly forbids its staff from receiving direct funding from the tobacco industry: ‘Direct funding from foundations primarily funded by the tobacco industry will not be accepted. Direct funding from business units of companies involved in the tobacco industry will not be accepted if, in the opinion of the Deputy Vice-Chancellor Research, the unit is engaged directly in the production, manufacture, distribution, promotion or marketing of tobacco or tobacco products as its primary business; or acceptance of the funding involves any promotion or advertising that can be construed to support the tobacco industry or the tobacco lobby and its activities.’ http://policies.anu.edu.au/policies/externally_funded_grants_consultancies_and_contracts/policy Matthew Rimmer receives funding from the Australian Research Council for unrelated work on intellectual property and climate change.