Governments, WHO, Reveal Industry’s Back-Channel Battle Against Tobacco Legislation

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The shadow of the tobacco industry was present at last week’s annual World Health Assembly, featuring the villain in what World Health Organization Director General Margaret Chan called a theatre of the absurd. The tactics of the “evil industry,” as she called it, aimed at undermining countries’ efforts to implement tobacco control legislations were illustrated with concrete country examples at a side event during the week.

On the side of the 65th World Health Assembly (WHA) held 19-26 May, the WHO organised an event entitled, “Building Global Solidarity to Counter the Tobacco Industry’s Attacks,” to present what they defined as the tobacco industry’s intimidations and threats.

The meeting aimed, according to Chan, at sharpening collective skills against “public health’s worst enemy.”

On 31 May, WHO celebrates annual World No Tobacco Day. Created in 1987, the event means to draw global attention to the “tobacco epidemic” and its effects, according to the WHO. This year’s theme is “Tobacco Industry Interference,” with a focus on “the need to expose and counter the tobacco industry’s brazen and increasingly aggressive attempts to undermine global tobacco control efforts.”

At the WHA side event, Chan said several countries, such as Australia, Namibia, Norway and Uruguay, have had to bear the assault of the tobacco industry while trying to implement laws to control tobacco use. The high profile legal actions are deliberately designed to instil fear in countries, she said, with industry counting on a “domino effect” of countries dissuaded from taking such costly legal actions.

According to Chan, the actions of the tobacco industry are no longer “behind the scene.” She complained about “policy incoherence” from countries that are signatories to the WHO Framework Convention on Tobacco Control and still taking action against countries like Australia.

She hinted at the formal consultations requested by Honduras and Ukraine with Australia under the World Trade Organization dispute settlement procedures in April and March, respectively (IPW, WTO/TRIPS, 4 April 2012).

Australia passed a tobacco control law in 2011, banning brand logos on the packaging, bearing large graphic health warnings, in what was described as “plain packaging,” according to Jane Halton, secretary of the Australian Department of Health and Ageing.

The fight against tobacco use started in the 1970s, mainly with health warnings, she said, and between 1998 and 2010 a significant decrease of the smoking rate was observed. In 2010, another set of tobacco control measures was adopted by the government, including plain packaging. The tobacco plain packaging act became law on 1 December 2011 and goes into effect later this year.

Tobacco Industry Tactics Part of a Plan, Says Australia

According to Halton, several strategies have been developed by the industry. A constitutional challenge was brought by the four major Australian tobacco companies in Australia’s high court against the ability of the government to pass the legislation. Arguments from all parties have been heard by the court, which has reserved its decision, she said.

In addition, Australia received a formal notification of arbitration under the Australia/Hong Kong bilateral investment treaty, she said. Honduras and Ukraine requested consultations at the WTO, she added, noting that those countries had very little trade with Australia. According to Halton, tobacco companies are providing legal advice to the WTO member countries to encourage them to take action against Australia under the WTO.

Another strategy, Halton said, is to make use of subversive and disruptive tactics. Since April 2010, she said, her department has received 64 freedom of information requests relating to the plain packaging initiative, 63 of which came from the tobacco industry. The framing of these requests was done in such a way, she said, that it required the government to examine hundreds of files and thousands of documents, tying up funding, resourcing and staff, so that they cannot be working on tobacco control, she said. One particular set of requests from British American Tobacco “has cost my department” US$ 631,230 to process, she said.

The launching of well-organised campaigns aimed at undermining political will by encouraging consumers and retailers to speak out against tobacco control as interfering with people’s choice and lifestyle is yet another tactic, she said.

The tobacco industry also uses front groups that seem unrelated to them to raise concerns about tobacco control, some of which with slogans such as “today tobacco, tomorrow who knows what?” she said, suggesting that the plain packaging legislation might include additional measures through which the government would be over-reaching. An example she gave of such a group is the “Alliance of Australian Retailers.”

Finally, on 17 May, British American Tobacco announced the launch of a cheap brand of cigarettes, whose name was not yet released. They used large media coverage announcing the launch, indirectly going around the advertisement ban, since they did not advertise the product but used media coverage about the eminent release of the cheap brand of cigarettes.

Tobacco Industry Works the Back Channels

Longstanding efforts and recent legislation have shown positive effects on tobacco consumption in the country, said Uruguay Minister of Public Health, Jorge Venegas, “awakening” the tobacco industry into action to interfere with the implementation of the policies for tobacco control.

In particular, in its legislation, Uruguay introduced a prohibition on cigarette manufacturers marketing more than one product under a single brand name, and banished the use of words like “light,” “ultra light,” and “mild” and descriptive terms that could be misleading, he said.

Another requirement of the legislation is that mandatory health warnings on cigarette packaging would include health warnings covering 80 percent of the front and back of cigarette packages, he said.

In March 2010, Philip Morris filed a request for arbitration before the International Centre for Settlement of Investment Disputes for Uruguay’s lack of compliance with the treaty between Switzerland and Uruguay on the “reciprocal promotion and protection on investments”, according to a memorial on jurisdiction submitted by Uruguay on 24 September 2011. A copy [pdf] posted by Physicians for Smoke-Free Canada, a civil society group website contains the positions of the claimants and respondent.

Richard Nchabi Kamwi, the minister of health and social services in Namibia, said the country has been engaged in the fight against tobacco through awareness campaigns that proved unsuccessful. With technical support from the WHO, the health ministry started work on a piece of legislation on tobacco product control in the early 2000s.

Nchabi Kamwi described the lengthy process to adopt the legislation, which was heavily debated. The Tobacco Product Control Act was signed into law in 2010, he said.

Regulations were then drafted under the new act, involving lawyers, advocates, and at the end of 2011 regulations were ready but could not be enforced, he said. The main reason was the effort by the tobacco industry to bar the law, he said.

During the course of the preparation of the regulations, the tobacco industry headed by British American Tobacco approached the office of the prime minister, the Ministry of Justice, and the attorney general, he said. They also approached the Ministry of Finance and supposedly said that the tobacco control regulations would imply a substantive financial loss in revenue for the ministry. All the influential people of the country were consulted, he said, as well as the Chamber of Commerce and Industry, he added.

The result was that no progress was made, he said, describing a “pile of letters” in his office coming from worldwide representatives of British American Tobacco with threats of litigation. In particular, the tobacco industry is pushing against health warning pictures taking too much room on the cigarette packaging.

In the audience, the Health Minister of Jamaica said Jamaica was pursuing a tobacco control act but met the usual practice of the tobacco industry which has “spread its tentacles to centres of influence inside the country,” he said, asking the support of the WHO and countries who are facing the same problems.

Catherine Saez may be reached at info@ip-watch.ch.

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