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Proposals for a Smokefree Aotearoa 2025 Action Plan

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Proposals for a Smokefree Aotearoa 2025 Action Plan A SUBMISSION TO THE NEW ZEALAND MINISTRY OF HEALTH PROPOSALS FOR A SMOKEFREE AOTEAROA 2025 ACTION PLAN New Zealand Tobacco Packaging Warning DR MATTHEW RIMMER PROFESSOR OF INTELLECTUAL PROPERTY AND INNOVATION LAW FACULTY OF BUSINESS AND LAW QUEENSLAND UNIVERSITY OF TECHNOLOGY Queensland University of Technology 2 George Street GPO Box 2434 Brisbane Queensland 4001 Australia Work Telephone Number: (07) 31381599 EXECUTIVE SUMMARY Recommendation 1 As part of building upon Helen Clark’s legacy in respect of the Smoke-Free Environments Act 1990 (NZ), Jacinda Ardern’s New Zealand Government should pass bold and ambitious proposals for the Smokefree Aotearoa 2025 Action Plan. Recommendation 2 The New Zealand Government should learn from the legal disputes and the public policy debate over the plain packaging of tobacco products. This pioneering tobacco control measure was recognised as being an expression of the WHO Framework Convention on Tobacco Control 2003, and being consistent with the TRIPS Agreement 1994, the TBT Agreement 1994, and GATT 1994. The New Zealand Government should seek to make use of such flexibilities in international law in its development of tobacco control measures under the Smokefree Aotearoa 2025 Action Plan. Recommendation 3 The New Zealand should implement a bold and ambitious Smokefree Aotearoa 2025 Action Plan in order to implement the WHO Framework Convention on Tobacco Control 2003, and protect public health in New Zealand. Recommendation 4 The New Zealand Government should support enhanced Indigenous-led tobacco control measures – taking into account the Treaty of Waitangi 1840, the WHO Framework Convention on Tobacco Control 2003, the United Nations Declaration on the Rights of Indigenous Peoples 2007, and the establishment of the new Maori Health Authority. 2 Recommendation 5 The New Zealand Government should support social marketing campaigns to promote the Smokefree Aotearoa 2025 Action Plan. Recommendation 6 As part of its increased regulation of digital platforms, the New Zealand Government should seek to engage in enhanced regulation of social media advertising by tobacco companies and e-cigarette companies. As well as targeting the tobacco companies, the New Zealand Government should focus on the behaviour of advertisers and the Internet influencers, and regulate the role of intermediaries, such as digital platforms, social media sites, and other Internet sites. Recommendation 7 The New Zealand Government should invest in research, evaluation, monitoring and reporting of the Smokefree Aotearoa 2025 Action Plan. Recommendation 8 The New Zealand Government should provide for effective compliance and enforcement mechanisms for tobacco control measures in respect of the Smokefree Aotearoa 2025 Action Plan. The New Zealand Government should explore the need for law reform in respect of civil liability and criminal liability for tobacco companies. Recommendation 9 New Zealand should establish a licensing system for all retailers of tobacco and vaping products. New Zealand should also encourage retailers to shift towards the sale of healthy products. 3 Recommendation 10 The New Zealand Government should reduce the retail availability of smoked tobacco products by significantly reducing the number of retailers based on population size and density. Recommendation 11 The New Zealand Government should reduce the retail availability of tobacco by restricting sales to a limited number of specific store types. Recommendation 12 The New Zealand Government should follow the lead of the United States and Singapore, and introduce a smokefree generation policy. Recommendation 13 The New Zealand Government should encourage retailers and small businesses to stop selling smoked tobacco products, and instead diversify into the sale of healthier products. Recommendation 14 The New Zealand Government should support reducing the nicotine in smoked tobacco products to very low levels. The New Zealand Government should also prohibit the use of menthol in tobacco products. Recommendation 15 The New Zealand Government should support prohibiting filters in smoked tobacco products. 4 Recommendation 16 The New Zealand Government should have the flexibility of prohibiting tobacco product innovations through regulations. Recommendation 17 The New Zealand Government should increase the tobacco tax rate, establish a new tax on e-cigarettes, as well as set a minimum price for tobacco products. The New Zealand Government should also look to take action in respect of any tax evasion by tobacco companies and e-cigarette companies. Recommendation 18 The New Zealand Government should include smoke-free policies in its Smokefree Aotearoa 2025 Action Plan. Recommendation 19 The New Zealand Government, the corporate sector, and civil society should further expand tobacco divestment policies. Recommendation 20 The New Zealand Government needs to ensure that its tobacco endgame measures – and its proposals for Smokefree Aotearoa 2025 Plan - are safeguarded against the threat of tobacco interference. 5 1. HELEN CLARK’S LEGACY OF THE SMOKE-FREE ENVIRONMENTS ACT 1990 (NZ) As Minister for Health, the Hon. Helen Clark introduced the Smoke-Free Environments Bill into the New Zealand Parliament on the 17 May 1990. It is worthwhile recalling the aims and ambitions of this initiative. Clark observed: ‘This Bill will ensure that New Zealand takes its proper place in the global efforts against the death and suffering that are being caused by tobacco.’1 She discussed the scope of the bill: The Bill aims to protect young people from being exposed to false images of tobacco as a healthy and desirable product. The Bill will create a social environment that encourages young New Zealanders to remain non-smokers and protects non-smokers from the effects of tobacco smoke. It will also set up a new health sponsorship council that is specifically established to promote health and healthy life-styles through the sponsorship of sport, the arts, and cultural or recreational events. It will provide alternative sources of funds for those groups currently reliant on tobacco.2 Clark observed: ‘Experience here and abroad shows that a multipronged strategy is needed to succeed, and educational, fiscal, and legislative strategies reinforce and complement each other.’3 Clark highlighted the death and disease attributable to smoking in New Zealand: 1 Helen Clark, ‘Speech on the Smoke-Free Environments Bill’, New Zealand Parliament, 17 May 1990. 2 Ibid. 3 Ibid. 6 Every year more than 4000 New Zealanders are dying from diseases directly attributed to their smoking of tobacco, and 273 of them do not smoke at all but are dying from other people’s smoke. That clearly makes tobacco-smoking by far the biggest single preventable cause of death and chronic illness in New Zealand.4 Clark said that the New Zealand Government was ‘appalled by the suffering, not just of those with smoking-related illnesses, but also of their families and friends who watch helplessly as lung cancer and emphysema take their toll.’5 Clark commented that the legislation would bring a number of public health benefits to New Zealand: The public health will be greatly improved by effective measures to reduce the leading cause of preventable death in New Zealand. Hospital beds will be freed for people with less preventable diseases. Workers will benefit from breathing cleaner and less smoky air. Employers will benefit from having cleaner work-places and workable policies on smoking in the workplace that establish clear guidelines on where and when people may smoke. Sports, arts, recreational, and cultural groups will benefit from having access to health sponsorship consistent with their own objectives. Families will be able to enjoy sports, arts, recreation, and culture free of incompatible tobacco disease messages. Children will grow up free of commercial pressure to smoke. With this bill, the children of 1990 have a real chance of being the first true smoke-free generation.6 4 Ibid. 5 Ibid. 6 Ibid. 7 She observed: ‘Inaction on this issue would be as irresponsible as doing nothing in the face of any other public health epidemic.’7 Reflecting upon her political career in 2020, former Prime Minister Helen Clark singled out her work on tobacco control as one of the political achievements, which she was most proud of.8 She reflected: ‘Thirty years ago, New Zealand dreamed a big dream – to prevent the harm and death caused by tobacco smoking.’9 Clark noted the danger posed by smoking at that period to the public health of New Zealand: ‘At the time, one in three adult New Zealanders – adults and youth – smoked regularly.’10 Clark observed that smoking was an exceptional danger: ‘In comparison to other health risks we face, smoking is uniquely harmful to the health of individuals, whānau, the health services and society as a whole.’11 She noted: ‘When used as directed by the manufacturers, up to two-thirds of people who smoke die early from smoking tobacco, and one-third of those deaths are in middle-aged people who lose, on average, more than twenty years of life.’12 7 Ibid. 8 Helen Clark, ‘New Zealand's Smoke-free Gains Among My Proudest Achievements, But There's More Work To Do’, Stuff, 23 August 2020, https://www.stuff.co.nz/national/health/300087854/helen-clark-new-zealands-smokefree-gains-among- my-proudest-achievements-but-theres-more-work-to-do 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 8 Helen Clark explained the legislative design of the regime: The Smoke-free Environments Act was passed under my leadership
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