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Legal challenges

India: steep decline in tobacco consumption in India reported in second Global Adult Tobacco Survey (GATS 2017)

23 Jun, 17 | by Becky Freeman, Web Editor

Authors: Chaturvedi Pankaj , Sarin Ashima, Seth Sanjay, Gupta PC

On 8th June 2017, results from the second Global Adult Tobacco Survey (GATS 2) of India were released. GATS is a global standard for systematically monitoring adult tobacco use and tracking key tobacco control indicators. India is the world’s largest democracy, and the second largest consumer and third largest producer, of tobacco. Tobacco control results from India take on a global significance in terms of impact on total mortality and disease burden.

For a large and diverse country like India, effective tobacco control has always been a daunting task. In the last five years, the country has witnessed a number of legal battles between the government and the tobacco industry. At one point, a parliamentary committee supported the tobacco industry and sought dilution of certain tobacco control measures. The powerful tobacco lobby tries to delay or derail attempts to reduce tobacco use prevalence. According to media reports, the Health secretary and Health ministers were removed from their posts in part because of their support of tobacco control measures. GATS 2 is can be viewed as a report card of the Government’s action on tobacco control.

GATS 2 was a household survey of 74,037 persons, aged 15 or more, conducted in all 30 states of India and two union territories in 2016-17. The first GATS was conducted in 2009-10. GATS 2 results found a 6% decline in tobacco use prevalence, from 34.6% in GATS 1 to 28.6% in GATS 2. The decline in prevalence was equivalent to a 17% relative decrease, and the number of tobacco users has reduced by about 8.1 million. The GATS 1 data released in October 2010 reported an estimated absolute number of 275 million tobacco users in India. The 2017 National Health Policy of the Government of India had set a target of relative reduction in current tobacco use by 15% by 2020; a target which has now been exceeded. The next target is a 30% reduction by 2025.

This period also witnessed the emergence of new contributors outside the Ministry of Health providing additional powerful tools for tobacco control. The Ministry of Women and Child Development amended the Juvenile Justice Act to make the sale of tobacco to minors as a non bailable offence punishable by 7 years of rigorous imprisonment and a fine of up to 100,000 Indian Rupees (US1550). The Department of Consumer Affairs amended the Legal Metrology Act to prohibit sale of loose cigarettes, which currently accounts for over 70% of the country’s total cigarette sales.

Meanwhile, a regulation under the Food Safety Act (2011) prohibited addition of tobacco and nicotine to any food substance. Through public interest litigation, this regulation enabled the Supreme Court to order a nationwide ban on gutka (a combination of flavored smokeless tobacco and areca nut). In addition, more than a dozen states have independently prohibited flavored smokeless tobacco products – an important step given gutka is a risk factor for oral cancers.

Voice of Tobacco Victims (VoTV), a campaign led by doctors and tobacco victims, played a pivotal role in the getting gutka/smokeless tobacco banned and taxes hiked on various tobacco products in India. The campaign has won awards and recognition from several organizations such as the World Health Organization, British Medical Journal, and the Campaign for Tobacco Free Kid. While most believed that prohibition would not work, VoTV was convinced that it would lead to decreased accessibility and affordability translating into reduced youth initiation. The 360-degree campaign involved advocacy, a legal battle, media, and research. The VoTV network also reached several medical societies and hundreds of individual doctors to increase engagement in tobacco control advocacy.

Despite tremendous resistance and litigation from the tobacco industry, the Ministry of Health imposed an 85% pictorial warning on tobacco packets from 1st April 2016. A significantly higher proportion of adults considered quitting because of the warnings on tobacco products (61.9% current cigarette smokers thinking about quitting smoking GATS 2 versus 38% in GATS 1). The tobacco tax hikes also contributed to reduction in prevalence, with individual expenditure on cigarettes and bidis having tripled since GATS 1.

GATS 2 reported a reduction in smokeless tobacco users from 25.9% to 21.4%. It also affirmed that a smokeless tobacco ban would not lead to switching to smoking. Smoking prevalence between the two GATS survey declined from 14% to 10.7 %, despite the ban on gutka/smokeless tobacco.

Summary of GATS 2 tobacco use

Pattern of tobacco

  • 6% of adults aged 15 and above (267 millions) used tobacco in any form
  • 199 million use smokeless tobacco, 100 million smoke tobacco and 32 million smoke as well as chew tobacco.
  • The most commonly used tobacco products are khaini (a type of smokeless tobacco) 85 million users and bidi (hand rolled cigarette) 67 million users.
  • 199 million users live in rural area and 68 million in urban

Significant changes compared to GATS 1

  • 17% relative decrease in tobacco prevalence
  • Tobacco use among 15-24 year olds showed relative reduction of 33% and for 15-17 year olds there was a 54% reduction.
  • The age of initiation of tobacco use increased by 1 year ( 17.9 to 18.9).
  • While there was a decrease in second-hand smoke exposure in public places (6%) and at home (13%), there was no decrease in workplaces.
  • 9% (83 % to 92%) more believed that second-hand smoke is harmful
  • 7% (89% to 96%) more believed that smokeless tobacco is harmful

Areas of concern

  • 68% of smokers, 17% of bidi smokers, and 50% of smokeless tobacco users purchase loose tobacco.
  • 30% of those who work indoors are exposed to second-hand smoke
  • 23% adults are still exposed to SHS at public places.
  • Nearly 10% of people still notice some form of tobacco advertisement.
  • Despite the gutka ban, 51 million people were still able to buy gutka

We must commend Government of India for their commitment to Tobacco Control. We also recognize the efforts of several national/international NGOs, academic institutions and civil society activists who have contributed to this impressive result. GATS 2 demonstrates that the tobacco control strategies in India are going in the right direction. For continuing improvement, the country needs further strengthening of policies, particularly enforcement of tobacco control laws.

Uruguay: five key messages from Philip Morris’ failed challenge to packaging laws

31 Aug, 16 | by Marita Hefler, News Editor

Hot on the heels of the tobacco industry’s failed legal challenge to the UK’s tobacco plain packaging laws in May 2016, Philip Morris suffered a new defeat in July, this time in its long-running case against Uruguay’s health warning labels.

The McCabe Centre for Law and Cancer has prepared a paper outlining key aspects of the judgement which are relevant for other governments planning to implement similar legislation to meet their obligations under the World Health Organization Framework Convention on Tobacco Control (FCTC).

The key points explored in detail in the analysis are:

  1. Uruguay’s measures did not substantially deprive Philip Morris of its investments or frustrate any expectations related to those investments
  2. States have a right to regulate in the public interest, including for public health
  3. It is not the role of investment tribunals to second-guess policy decisions, particularly where the evidence is complex or contested
  4. The WHO FCTC and its Guidelines add legal and evidentiary weight in support of states’ tobacco control measures
  5. Public health is an important normative value in investment law adjudication

Full details, including the paper can be found here: http://www.mccabecentre.org/blog/who-fctc-implementation-after-philip-morris-v-uruguay-five-key-messages-from-the-award.html

More analysis:

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.

 

Liability: untapped potential in the Framework Convention on Tobacco Control

11 Apr, 16 | by Marita Hefler, News Editor

Chris Bostic, Richard Daynard and Tamar Lawrence-Samuel

The history of the Framework Convention on Tobacco Control (FCTC) is filled with one unprecedented victory after another (see page 21). The next milestone for the treaty can—and should— tap the potential of Article 19 to hold the industry liable. Though the implementation of measures in line with Articles 5.3 and 13 has dramatically shifted the way the tobacco industry can operate globally, Article 19 has similar—if not greater—potential to curb the operations of the industry, and therefore the tobacco epidemic. As we look to the next Conference of the Parties (COP) in November, Parties should be looking to make sure that Article 19 achieves its potential.

For many who participated in the drafting of the FCTC, Article 5.3 (protecting public health policies from the tobacco industry) and Article 13 (banning tobacco advertising, promotion and sponsorship) seemed too visionary. Many thought these articles would be politically and technically impossible to implement. But a decade later, Parties are prioritizing these articles— and the effects are startling. Today, tobacco industry marketing is being rolled back across the globe. And dozens of countries have barred the industry from the policymaking table, creating space for effective policies to take hold.

But still the industry continues to be enormously profitable, with the top six corporations raking in $44 billion of profits in 2013. This, in part, because it breaks national laws and is not held accountable for what its products cost society. Governments pay billions of dollars in healthcare costs due to the tobacco epidemic. And evidence continues to mount of the tobacco industry’s illegal activities, which it currently appears to engage in with relative impunity—from illicit trade to widespread and systematic bribery.

To take the next big step in reducing the industry-driven tobacco epidemic, we must be able to hold the industry civilly and criminally liable. We must appreciate the visionary potential in Article 19. And we must take bold, courageous action to realize the world that Article 19 can make possible.

A vast ocean of possibility

Successful civil liability litigation in the U.S. and Canada has proven this tactic has great, global potential. It can provide an avenue for governments to hold the industry accountable for breaking laws, whether it be illegal marketing practices or illicit trade. Financially, it can shift the cost of the tobacco epidemic to the industry, where it belongs, raise the price of tobacco products (which reduces consumption), and provide funds for tobacco control campaigns. And finally, civil liability suits can expose internal industry documents, which provide invaluable insight into the industry’s tactics and help pave the way for even more effective legislation and litigation.

Holding the tobacco industry criminally liable, on the other hand, is admittedly venturing into less tested waters. But the ocean of possibility is vast.

Research on criminal liability provides cause for hope. A successful criminal prosecution would dramatically change the landscape for the tobacco industry. Tobacco executives could face potential prison time for violating tobacco control laws or for misleading people about the lethality of their products. The negative publicity generated with such charges would go far in denormalizing the tobacco industry and would chill the recruitment of talent.

Moral and financial imperative

To be sure, successful implementation of liability measures will prove to be challenging. And it will look different in each country given the range of legal systems across Parties. But the moral and financial imperatives are clear. Parties in the Global South, such as those recently targeted by British American Tobacco’s bribery, are now calling for tools to advance Article 19. These are some of the same Parties who championed Articles 5.3 and 13 during the FCTC negotiations.

We can and must follow these Parties’ visionary lead once again. During COP7, Parties should adopt strong guiding principles to advance implementation of Article 19. These include principles for developing and reforming legislation, and best practices for litigating in civil and criminal liability regimes in both civil and common law jurisdictions and systems.

Without a doubt, litigating against the tobacco industry is costly and intimidating. But many governments are already locked in defensive legal battles with the industry as it turns to litigation more and more to undermine strong tobacco control policies around the world. If governments are going to be in court with the industry, they should be doing it on their terms, proactively holding the industry liable for its myriad of abuses. And to do so, they need tools and guidance for implementation of Article 19 from the treaty, the Secretariat, and the COP. We have the ability to bring the untapped potential of Article 19 into fruition and to rein in the tobacco industry as we have never seen before. We have no time to lose. We must act, as a global community, now.

Chris Bostic is Deputy Director for Policy at Action on Smoking and Health (Twitter: @AshOrg). Richard Daynard is University Distinguished Professor of Law at Northeastern University and President of the Public Health Advocacy Institute . Tamar Lawrence-Samuel is Associate Research Director at Corporate Accountability International. (Twitter: @StopCorpAbuse)

Indonesia: court upholds tobacco tax to fund health

4 Oct, 14 | by Marita Hefler, News Editor

Abdillah Ahsan
Faculty of Economics, University of Indonesia

Good news on tobacco control from Indonesia is rare. Recently, however there was a victory in the area of tobacco tax.

On 1 January 2014, Law No. 28 of 2009 on regional taxes was introduced, which allows local provinces in Indonesia to charge a local tax to cigarettes. The tariff is 10% of cigarette excise.

This tax collectively amounts to about USD 796 Million, a significant sum. Following successful international examples for funding tobacco control, a minimum of 50% of the funds raised from the tax are to be used for health promotion, in particular through public anti-smoking campaigns and enforcing smoke free public spaces. This means local governments have the authority to decide on strengthening tobacco control measures for their provinces and cities.

Unfortunately, five smokers challenged this cigarette tax policy in the Constitutional Court, calling for its abolition. Their argument was that the policy harms the constitutional rights of cigarette smokers as consumers by requiring them to pay both excise tax and local cigarette tax. They argued this amounts to double taxation, which is prohibited by the tax law and is unjust.

However public health won, and the suit was rejected by the Constitutional Court in May 19, 2014. In the judgment, the Court stated that in accordance with Law No. 11/1995 on Excise Tax, the subject of excise tax is manufacturers, distributors, and importers, while its object includes cigarettes, cigars, tobacco leaf and tobacco strips. In the provisions of Articles 26 and 27 of the Local Tax Law on the other hand, the object of local cigarette taxes is consumption of cigarettes and the subject of this tax is cigarette consumers. “Thus, there is a difference between the object and the subject of excise tax in comparison to the object and subject of local cigarette tax,” said one of the Constitutional Judges.

The Court ruled that the cigarette excise tax paid together with local cigarette tax is the “politics of taxation” to increase state revenues as well as provide compensation on the negative health impacts of smoking. According to the judge, “Simultaneous excise tax and local cigarette tax have positive impact on reducing cigarette consumption and improve society’s health.”

Several benefits will arise from the Court’s rejection of the suit and implementation of the tax. The first is that the local cigarette tax will increase cigarette prices, thereby making cigarettes less affordable, and in turn likely direct reducing smoking uptake among children. The second benefit is local governments will receive increased funds as revenue to go towards local development and increased living standards. A third benefit is the increased funding available to be used exclusively for health promotion and law enforcement. This includes anti-tobacco campaigns and strengthened enforcement of tobacco control regulations such as non smoking areas.

Together, these measures will change the scenario of tobacco control at the local level and enhance local government efforts to better protect children and the poor from the harms of tobacco. It represents a welcome step forward in a country that has been dubbed a paradise for tobacco companies due to lax regulation.

Canada: What were they smoking? Experts want health on tobacco litigation agenda

25 Sep, 14 | by Marita Hefler, News Editor

Garfield Mahood

President, Campaign for Justice on Tobacco Fraud

 

Canada what were they smoking

An image from the Campaign for Justice on Tobacco Fraud, Canada

In the early 1980’s, Canada had one of the globe’s highest rates of per capita tobacco consumption. But in less than two decades, in response to aggressive campaigning by health NGOs, Canada experienced arguably the largest decline in use anywhere.

Gains were made on many fronts: through increases in tobacco taxation, a world precedent-setting ban on tobacco advertising, breakthroughs in smoke-free air travel and federally-regulated workplaces, and from landmark tobacco package warnings.

But Canada can no longer claim that it is at the forefront of responses to the tobacco epidemic. In 2010, the neo-liberal federal government cancelled longstanding plans for a renewal of stale package warnings. Then, in the face of fierce opposition, it reversed itself and a year later mandated new warnings which discarded several of the precedent-setting elements of Canada’s ground-breaking 1994 and 2001 warning systems.

Then, the health minister cancelled the entire grants and contributions component of the national tobacco strategy. This cut millions of dollars of funding from troublesome NGOs which had pressed the government to produce the up-dated warnings. Needless to say, plain packaging is no longer on the government’s agenda.

One of the most severe criticisms of the federal government, said Western University law professor Robert Solomon, “stems from the sweetheart tobacco smuggling settlements that it negotiated with Big Tobacco in 2008 and 2010. In those settlements, health remedies to deal with the illness caused by the smuggling fraud appear not to have been given any consideration.”

Unlike American tobacco litigation, criminal investigations and civil lawsuits in Canada produced settlements of pennies on the dollars claimed, no disclosure of industry documents and no real incentives for the manufacturers to change their behaviour. Tobacco executives facing jail time had their charges stayed.

According to William Marsden of Montreal’s The Gazette, the tobacco executive who planned much of the smuggling told him that the federal police knew “all about this. They could have walked in and just handcuffed everybody at Imperial [Canada’s largest tobacco company. The government]…did not have the guts of a field mouse to go after the executives of the company….”

Now, Canada’s provinces are suing tobacco manufacturers and their international parents to recover the health care costs associated with smoking which resulted from industry fraud and conspiracy over five decades. The governments allege that the companies involved lied about risks, addiction, ‘light’ and ‘mild’ cigarettes, and second-hand smoke.

The claims filed to date by nine provinces exceed CDN $110 billion. If this wrongful behaviour is proven in court, as it was in the USA, it will constitute the largest fraud in the history of Canadian business. It certainly was the most destructive with estimates that industry deception caused or contributed to up to two million deaths in Canada since 1964.

The smuggling settlements trivialized the harms caused by the fraud. So the Campaign for Justice on Tobacco Fraud (CJTF) was incorporated, to advocate for positive health outcomes from the health care cost recovery litigation.

As mentioned in the September 2014 Tobacco Control, the CJTF pressed provincial and territorial governments to take Big Tobacco to trial, insist on the disclosure of industry documents, and allocate a significant portion of monies recovered to an arms-length-from-government agency with a mandate to reduce tobacco industry-caused disease. The CJTF submission was signed by the heads of 60 health organizations, by the deans of schools of public health, and by professors of medicine and law, 137 signatories in all.

It will take a determined health community to put public health into the litigation deliberations and to offset years of federal government back-sliding.

Waiting out the legal challenges to plain packaging – playing into the tobacco industry’s hands?

4 Oct, 13 | by Marita Hefler, News Editor

 

Editor’s note: This article was first published by the McCabe Centre for Law and Cancer (Australia). It is republished here with permission. The original article can be accessed here. The McCabe Centre for Law and Cancer is a joint initiative of Cancer Council Victoria and the Union for International Cancer Control. Its mission is to contribute to the effective use of the law for cancer prevention, treatment, supportive care and research. Read more about the Centre here.

Jonathan Liberman, Director of the McCabe Centre

Nearly two years after the passage of Australia’s plain packaging legislation, and ten months after it came fully into effect, the international legal challenges continue. Slowly. And the tobacco industry, which is directly pursuing one of the challenges and providing support to the others, is telling governments considering stronger tobacco control measures to wait until the challenges are resolved.

The last few weeks have seen three developments in the World Trade Organization challenges to Australia’s plain packaging legislation. The legislation was passed in November 2011 and has been in full operation since December 2012.

Indonesia becomes the fifth country to initiate proceedings against Australia. Dominican Republic and Cuba have also done so, requesting consultations with Australia on 18 July 2012 and 3 May 2013 respectively.

The WTO dispute settlement process has several stages, from a request for consultations through to a WTO Panel (and Appellate Body) hearing. WTO dispute settlement is supposed to be ‘fast’. According to the WTO, ‘prompt settlement is essential if the WTO is to function effectively’. But things haven’t been moving so promptly so far. Many observers wonder whether it was more than a coincidence that Indonesia took the very first step around the same time as Ukraine and Honduras took steps that appeared to move the process forward. They wonder whether Indonesia will be given time to catch up to those that have gone before them, and whether another country might be waiting to be the next cab off the rank.

According to Reuters’ Tom Miles:

Many governments may decide whether to press ahead with their own measures to discourage tobacco use only after seeing the outcome of the WTO case.

If Miles is right, one can speculate on who might and might not want the challenges to be resolved promptly (or at all); who benefits from the cases remaining in the system as long as possible (or indefinitely).

We were never sure whether the tobacco industry would follow through on its threat to bring a constitutional challenge to Australia’s law. The industry was always going to lose that challenge, and losing a case that you have long claimed you will win isn’t a great look. In hindsight, it seems obvious that the industry had to challenge. It had to send a message to other countries that it would make good on its threat rather than roll over, even in the face of legal reality, lest its threats lose their credibility. Presumably it calculated that, looking at the bigger picture, it could afford a loss in the High Court of Australia. But a loss in the WTO would be something different altogether. The global implications would be profound.

On this note, it has been reported that the tobacco industry has been providing support to countries that are challenging Australia’s laws. According to Bloomberg, British American Tobacco is contributing to Ukraine’s and Honduras’ legal costs, and Philip Morris to those of the Dominican Republic. The two companies told the Financial Times back in April 2012 that they were providing such support. So, while in the WTO it is states that bring legal proceedings rather than corporations, the tobacco industry is intimately involved in what is happening.

Australia is not only facing complaints in the WTO, but also a challenge by Philip Morris Asia (PMA) under a bilateral investment treaty. The next stage in that case is a hearing in Singapore in February 2014 on the question whether the proceedings should be bifurcated, i.e. whether Australia’s jurisdictional objections should be heard prior to or together with consideration of the merits of PMA’s claim.

PMA filed its notice of claim on 27 June 2011 and its notice of arbitration on 21 December 2011. In October 2013, we are still four months from a hearing about how the case should proceed. It will probably then take some months for the tribunal to issue its decision on that question. Then a few months for the parties to make their submissions on the next stage (whatever that ends up being). Then there’ll be a hearing. Then some months for the tribunal to issue its decision. And so on. And we are quickly into 2015 and beyond.

We are among the many who believe that Australia is on solid legal ground in both the WTO and investment proceedings. We believe that Australia’s law is a sound exercise of its sovereign power to regulate; that it is non-discriminatory, based on evidence, and well-drafted, and has behind it the legal and political force of the WHO Framework Convention on Tobacco Control, its Article 11 and Article 13 guidelines, other decisions of its Conference of the Parties, and other international instruments including the Doha Declaration on TRIPS and Public Health.

In the work we do, we are increasingly seeing the tobacco industry discouraging governments from implementing tobacco control measures on the ground that Australia’s plain packaging law is under challenge, and it would be prudent for governments to wait for these challenges to be resolved.

In our view, it is perfectly sensible for governments to keep an eye on what is happening in the challenges to Australia’s law. But we don’t believe that waiting them out is a tenable position. Governments could find themselves waiting for years – or forever. If they do this, they are playing into the tobacco industry’s hands, and abdicating their duties to protect the health of their people.

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