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United Kingdom

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.

 

Industry-funded International Tax and Investment Center responds to criticism by attempting to muddy the waters

24 Jun, 16 | by Marita Hefler, News Editor

Karen A Evans-Reeves, Anna B Gilmore and Andy Rowell

Tobacco Control Research Group, University of Bath,

The tobacco industry is under attack. In just two weeks, in May 2016, its tactic of challenging any law that threatens its profits, took a big hit. The arbitration panel, that tobacco giant Philip Morris International (PMI) had hoped would overturn standardised packaging legislation in Australia, published its full ruling that the company’s self-serving claims were inadmissible. Just days later, all four major tobacco companies lost their challenges against both the European Union’s Tobacco Products Directive and standardised packaging legislation in the UK.

The UK, France and Ireland, which have already enacted standardised packaging legislation, will now go ahead with this brand removal. Further afield Canada, New Zealand, Hungary and Norway are due to follow suit and other countries which have expressed an interest will be buoyed by the way the industry’s legal and trade challenges to plain packs are being soundly rejected. The World Health Organization’s (WHO) slogan for World No Tobacco Day 2016 was “Get Ready for Plain Packaging” recognising that the removal of branded tobacco packaging is “going global.”

Each jurisdiction to consider standardised packaging legislation has received sustained attacks from tobacco companies, using both their own voices and those of third parties which they fund. By commissioning and publicising research reports and opinions from seemingly independent experts, tobacco companies have created not only the impression of a large network of opposition but of an illusory body of evidence, particularly in relation to the industry argument that standardised packaging will increase the illicit tobacco trade.

PMI private documents, leaked to Action on Smoking and Health (UK), revealed that “broad third-party media engagement” and “high profile opinion pieces” would be used to raise awareness of such arguments among “decision makers and the general public” as part of its attempt to prevent standardised packaging in the UK. These documents also revealed that PMI intended to use the International Tax and Investment Centre (ITIC) as one of its key “media messengers”. Since 2012, PMI has paid ITIC (in collaboration with global advisory firm, Oxford Economics) to produce annual reports on the illicit trade in Asia. These claimed that illicit trade is increasing in the region but have been accused of being methodologically flawed. When publicly available routine data was used in an attempt to replicate ITIC’s findings in Hong Kong, illicit levels were found to be under half of what ITIC had estimated.

Key to the industry’s use of third parties is its attempt to shift the paradigm by presenting third parties as ‘independent experts’ and their research as ‘trustworthy and rigorous’ while simultaneously positioning public health academics as ‘advocates’ and ‘zealots’ and their research as ‘advocacy’. This presentation of corporate pawns as informed moderates producing quality work and public health researchers as misguided fundamentalists producing poor quality work is a public relations tactic employed for decades by corporations in relation to environmental and health issues.

Over the last few weeks this tactic has been adopted by the tobacco industry third party, ITIC, in a series of letters sent to Non-Governmental Organisations (South East Asia Tobacco Control Alliance (SEATCA), ASH (UK), EU SmokeFree Partnership), the University of Bath in the UK, and the Editors of Tobacco Control, all of whom had criticised ITIC’s activities, some in letters, reports and webpages. ITIC’s letters made three inter-related claims, each of which we explore in the paragraphs below.

First, that public health research should be seen as advocacy while, by contrast, ITIC’s research (none of which appears to be peer-reviewed) should be seen as high quality. For example, in his letter to the University of Bath the President of ITIC, Daniel Witt, claimed:

We have become increasingly concerned about how the integrity of reputable institutions and individuals is maligned by overzealous advocacy ….. and ….by what passes for academic research when it is clearly constructed to fulfil an advocacy agenda”.

This denigration of public health research has been strongly criticised by independent experts. In her 2006 verdict in an extortion case against the tobacco industry in the United States Judge Gladys Kessler noted:

Much of the Defendants’ [i.e. the tobacco industry’s] criticisms of Government witnesses focused on the fact that these witnesses had been long-time, devoted members of “the public health community.” To suggest that they were presenting inaccurate, untruthful, or unreliable testimony because they had spent their professional lives trying to improve the public health of this country is patently absurd”.

The recent high court ruling on the challenges made by British American Tobacco, PMI, Japan Tobacco International and Imperial Tobacco to UK standardised packaging legislation made a similar point, citing Sir Cyril Chantler’s 2015 review of the evidence:

Chantler … rejected the criticism made by the tobacco companies that those that advised the Government were biased against the industry. Conversely, he articulated scepticism about the methodological efficacy of research results generated by the tobacco companies. He also criticised the tobacco companies for adopting unrealistic criticisms of the output of existing researchers…

This ruling drew upon two peer-reviewed papers, one confirming the poor quality of industry evidence in comparison to public health evidence on standardised packaging and the other paper showing how BAT and JTI  went about distorting and misrepresenting public health evidence.

ITIC’s second claim is that it is not a lobby group. Yet based on widely accepted definitions of lobbying, ITIC’s own descriptions of its activities, and the global health communities’ observations of its behaviour, ITIC clearly acts as a lobbying organisation. Indeed, it has persistently boasted of its lobbying success. in 1995, ITIC produced a document which outlined how “ITIC has developed trusted, advisory relationships with key, senior-level policy makers…..[which]…provide channels for private sector expertise to reach the Government before, during and after the official policy-making process. This combination…… provides ITIC and its sponsors a ‘seat at the policy-making table’”. And in 2004, Daniel Witt, ITIC’s President noted: “ITIC is a public policy organization actively working to change public policy in a pro-investment direction.” Although ITIC claims to be an “independent, non-profit research and educational organization” it receives tobacco company funding and has industry representatives on its Board of Directors.  Outputs such as the Asia-11 and Asia-14 illicit trade indicator studies, commissioned by PMI and published by ITIC along with global advisory firm Oxford Economics, have been critiqued by Dr Hana Ross (on behalf of SEATCA) for opaque methodology and “unverifiable” results that were “inconsistent with results from other studies” in the region (for more on this issue, read here). In 2014, ITIC attempted to destabilise the proposed guidelines on tobacco tax and price policy by convening a meeting with Parties and Observers to the Framework Convention on Tobacco Control (FCTC) immediately prior to the sixth Conference of the Parties (COP6). The Convention’s Secretariat blasted ITIC for this move.

Finally, in each letter, ITIC’s President, Daniel Witt argues that public health organisations ought to engage with ITIC given its tax expertise. This position displays a fundamental misunderstanding of the FCTC’s Article 5.3 which aims to protect policy making from the vested interests of the tobacco industry. It also displays a fundamental lack of understanding of public attitudes to ITIC. For example, the World Bank withdrew from an ITIC event in India, following a letter from the Institute of Public Health in the country,  similarly, following a letter from ASH (UK), the UK Department for International Development (DfiD) asked ITIC to remove its name, from its list of sponsors on ITIC’s website as DfiD has never been a sponsor, and the FCTC Secretariat has urged all governments not to engage with ITIC.

SEATCA and the University of Bath have respectively published and sent to ITIC detailed rebuttals of ITIC’s letters to them. These rebuttals and the aforementioned high court rulings are unlikely to deter ITIC from trying to influence tobacco control policies such as standardised packaging across the globe and undermining Article 5.3 of the FCTC. But the more people who reject engagement with ITIC, the harder it will be for ITIC to boast that it can get its tobacco industry clients a “seat at the policy making table”.

UK: New ‘Quit 16′ campaign tells smokers’ stories

16 Feb, 16 | by Marita Hefler, News Editor

A series of emotional and hard-hitting television ads have been launched in the UK to tell the stories of real former smokers who have been affected by cancer. The ads detail the trauma of diagnosis, the harrowing treatments that they endured and the emotional and physical toll in their lives.

Maggie, a 60 year old former heavy smoker who was diagnosed with mouth cancer when she was 45, says “never in a million years did I think I would get cancer…I never thought for one moment it would be me”. In order to remove the cancer, she had to have one side of her mouth removed and now needs to wear an obturator – a prosthesis in her mouth with false teeth and a piece to replace the roof of her mouth – which allows her to eat and talk.

The ‘16’ in the campaign refers to 16 types of cancers that can be caused by smoking. It aims to raise awareness about some of the lesser-known health impacts among smokers, and inspire them to quit to reduce their risk of developing smoking-related cancers. As Maggie says in the video, although she knew about lung cancer, she had never heard of mouth cancer. She discusses understanding that people enjoy a cigarette, and she did too, but “when I look back at what I had to go through, was it worth it? No. Definitely not.”

Tony, a 55 year old who had to have much of the inside of his neck removed when he was diagnosed with laryngeal cancer talks about how he used to spend a lot of time swimming “but now I can’t because if water does get in there, it’s just straight into the lungs….it’s affected all my life. Everything I used to do, I can’t do anymore.”

For more about the campaign, visit quit16.co.uk.

Should stores selling tobacco be allowed to provide publicly funded health services?

11 Feb, 15 | by Marita Hefler, News Editor

 

Dr Andrew Furber

Follow Dr Furber on Twitter at @FurberA

Imagine a patient with a health problem accessing a publicly-funded health service where the substance causing the problem was on sale within the same premises. You would probably think this was completely unethical. But this is exactly what happens in hundreds of supermarkets in the United Kingdom every day.

The provision of accessible health services, including where people shop, is a good thing. However as National Health Service (NHS) England has recently made clear in their Five Year Forward View, health services must be as focused on the prevention of illness as they are on its cure.

Tobacco remains the leading cause of preventable mortality and morbidity and causes 80,000 deaths in England every year. Although smoking prevalence is declining in the United Kingdom, recently falling below 20% for adults in England, tobacco will kill half of its regular users. Around one in ten of the current UK population will die from smoking. Smoking is strongly correlated with socioeconomic deprivation and is the main behavioural determinant of health inequalities.

So why is such a toxic substance to be sold from supermarkets which provide NHS services when it has such a devastating effect on the health of individuals, families and the nation?

Recently the CVS chain of pharmacies in the United States decided to stop selling tobacco . The company felt these sales were incompatible with its aim of being recognised for its role in healthcare.

So why do UK supermarkets continue to sell tobacco? The answer is probably to act as a lead product which brings customers in, who then purchase other items. Tobacco sales are likely to have a small margin for the retailer. Most of the cost of a packet of cigarettes goes on tax or to the tobacco company. The risk for any supermarket that unilaterally decided to stop selling tobacco would be the possibility of losing nearly one in five of its customers to its competitors. However if none of the major supermarkets sold tobacco it is unlikely that any of them will lose custom. People will still shop at supermarkets as they do now.

Supermarkets might argue that this is a slippery slope. If tobacco sales are not permitted what would be next? Alcohol? Foods with high fat, sugar or salt content? Well, no. Tobacco is uniquely dangerous. There is no safe level of tobacco consumption, whereas alcohol, fat, sugar and salt can all be consumed in moderation without any harm to health.

Is there a plan B if supermarkets indicate they would rather sell tobacco than provide NHS services? Possibly: a compromise could be to require supermarkets providing NHS services to provide information and advice at the point of tobacco sale on smoking cessation services. They could also supply tobacco sales data (which should apply to all tobacco retailers through a system of licensing) to assist authoroities with local tobacco control efforts.

Another alternative is a supplementary charge on business rates paid by large stores selling tobacco. This has been tried in Scotland in the Government Health Levy, and applies to outlets with a rateable value of more than £300,000 selling alcohol or tobacco.

If health services are to get serious about the prevention of ill health then they can have no association with its main behavioural cause – tobacco. It’s time for NHS contracts to reflect this.

Dr Furber is the Director of Public Health for Wakefield Council, UK. The opinions expressed in this article are the author’s personal views and do not necessarily represent the views of his employer or other associated institutions.

Will the UK government go ahead with standardised tobacco packaging or not?

16 Feb, 14 | by Marita Hefler, News Editor

 

 Deborah Arnott

Chief Executive, ASH UK

It seems like a straightforward question, but as is often the case there isn’t a simple answer. The UK parliament has passed primary legislation which allows it to introduce standardised packaging by regulation, but the government hasn’t yet made a decision to go ahead.

This primary legislation is a necessary but not sufficient step towards getting standardised packaging in place. The Government still has to decide whether to introduce the regulations which will bring standardised packaging into effect. The test that it has set itself is set out in the primary legislation and it is entirely appropriate, in line with that used by Australia.

Basically the legislation enables the Health Minister to make regulations for standardised packaging for tobacco products if s/he considers such regulations may be capable of reducing harm or promoting the health and welfare of children under 18. This can include potential benefits to children because of the impact of standardised packaging on adults, and the potential impact of the regulations either on their own or in conjunction with existing regulations on packaging and labelling.  The ways in which regulations might be capable of reducing harm or promoting health and welfare are defined as being any one of the following together or individually (the full amendment can be found here):

  • reducing smoking uptake
  • encouraging quitting
  • preventing relapse
  • reducing the appeal or attractiveness of tobacco products
  • reducing the ability of packaging to mislead consumers
  • reducing the ability of packaging to detract from the impact of health warnings, and
  • having an impact on attitudes, beliefs, intentions and behaviours towards smoking.

Because the UK Government said in spring 2013 that it wanted to see what the impact was in Australia, quite rightly it is carrying out a review before making its decision. That means that in making its decision it can take into consideration the most up to date information about the public health impact in Australia. Sir Cyril Chantler, an eminent paediatrictian, who is carrying out the review is visiting Australia to see for himself and then will report back to the Government by the end of March.

To quote the Health Minister Jane Ellison in parliament on Thursday 28th November 2013 after she had announced that the Government were bringing forward primary legislation on standardised packaging: “If, on receiving Sir Cyril’s review, the Government decide to proceed, that will allow standardised tobacco packaging to be introduced without delay. .. I have looked at the draft schedule, and if the Government were minded to go forward with this policy, I see no reason why it could not be put through before the end of this Parliament.” 

The decision will be taken once Chantler reports, and regulations could be in place if not implemented before the end of the Parliament in spring 2015 when the UK has its next general election. The primary legislation voted on last week was supported by not just the Coalition government but also the Labour opposition.  There was a massive majority; 453 MPs voted in favour with only 24 against. The governments in the devolved administrations of Scotland, Wales and Northern Ireland have also taken the necessary steps to ensure that regulations can cover the whole of the United Kingdom and not just England.

In addition in the same Bill the government has been given powers to introduce regulations to prohibit smoking in cars with children under 18. As with standardised packaging this was originally a backbench motion rather than a Government amendment. The Government allowed a free vote. The majority was 269, which compares with 200 for the UK smokefree legislation in 2006. Subsequently the prime minister’s spokespeople have made clear the government would like to go ahead with the necessary regulations to put this into effect before the next election.

The commitment of the UK parliament to take all measures necessary to reduce the harm caused by smoking is clear, and there is strong support from the public and the health community. We feel confident that after Chantler reports at the end of March the UK government will listen to the evidence and decide to go ahead with standardised packaging.

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