Packaging & Labeling Legislation: Essential Elements

International Legal Consortium (ILC)

Packaging and Labeling Measures

Presentation Outline

1. Pack and product as promotional tools 2. Effective health warnings and messages 3. Misleading packaging, labeling, and product 4. Constituents and emissions information 5. Australia’s plain packaging measure

2 Point of View: The Industry

The Tobacco Industry:

• The pack is the least expensive form of advertising. • It is the manufacturers’ last chance at a customer. • Pack design is the single biggest factor at point of sale.

– “Our final communication vehicle with our smokers is the pack itself. In the absence of any other marketing messages, our packaging … is the sole communicator of our brand essence. Put another way: When you don’t have anything else, our packaging is our marketing.” » Philip Morris Executive 3

Point of View: Public Health

Public Health Advocates: • A pack-a-day smoker sees warnings at least 7300 times per year. • Package presents an educational opportunity.

4 Points of View: Side by Side

5 Anatomy of a Cigarette Package

6 Innovative Packaging

Additional interior surfaces that can be used for promotion (“X-Pack”)

Packs with unconventional openings, shapes; use of tear tape Tear tape boasts: “The World’s First Side-Opening Glow in the dark Pack” 7 Special Edition Packs

Collectable packs telling a story (France)

“This” teamed up with a men’s fashion magazine 2008 for this limited Beijing edition – 1,650 Olympics packs available for only three weeks (China) (South Korea) 8 Targeting

Each stick has an image of Che’s face printed on it Named after Che Guevara, major figure in the Cuban Camel Rock – “rebel Revolution attitude”

9 Anatomy of a Cigarette Package

“All aspects of the pack, including the pack outer, cellophane, tear tape and inner cards, maximise the ways in which the pack itself can be used to communicate with consumers” - Internal Industry Document1

 Article 11 is about more than just health warnings 10 Packaging and Labeling Measures

Presentation Outline

11 Health Warnings

What do you notice about these health warnings?

12 Effective Health Warnings

To be effective, warning labels must be:

• Large

• Clear

• Visible

• Legible

(Thai examples) 13

Features of Health Warnings

1. Placement/Location 2. Size 3. Composition/Content 4. Rotation 5. Color 6. Language

12 (1) Placement/Location Contrast: Side Panel vs. Front/Back

15 (1)Placement/Location Contrast: Top vs. Bottom

16 (1) Placement/Location

DESCRIPTION IMPACT

• On principal display areas (PDAs) • If the message is in a (front and back—the largest panels prominent location, it is more of the package). likely to be noticed.

• Best location: On the upper portion parallel to the top edge of each PDA.

• Concealing or obscuring the warning is prohibited. • Not permanently interrupted by normal opening. • Not obscured by tax stamps or other required markings. (Singapore examples) 17

(2) Size Contrast: Small Area vs. Large Area

18 (2) Size Contrast: Small vs. Medium vs. Large

Pakistan (40%) Thailand (55%) Uruguay (80%)

19 (2) Size

DESCRIPTION IMPACT

• 50% or more, but no • Large messages more less than 30% of the likely to be noticed principal display areas • Does not include • Label effectiveness borders increases with size

• Large labels provoke emotional responses and increase quit motivation

20 (2) Size

Countries with the Largest Graphic Health Warnings Thailand 85% Australia 82.5% Sri Lanka 80% Uruguay 80% Brunei Darussalam 75% Canada 75% Nepal 75% Jamaica 75%

21 (3) Composition/Content Contrast: Text vs. Picture and Text

22 (3) Composition/Content

DESCRIPTION IMPACT

• Text • Pictures draw attention • Full color pictures and are likely to be remembered • Warnings should address smoked and smokeless • Pictures are important in tobacco products regions with low-literacy

• Textual messages highlight harmful effects Smoke contains benzene, nitrosamines, of tobacco and provide formaldehyde, and hydrogen cyanide. public health information

23 (3) Composition/Content

1. Argentina 21. France 40. Macau (S.A.R., Over 70 countries or 2. Australia 22. Georgia China) jurisdictions have 3. Bahrain 23. Guernsey 41. Madagascar 4. Belgium 24. Honduras 42. Malaysia passed laws requiring 5. Bolivia 25. Hong Kong 43. Malta graphic health warnings 6. Brazil (S.A.R., China) 44. Mauritius 7. Brunei 26. Hungary 45. Mexico  becoming the 8. Burkina Faso 27. Iceland 46. Mongolia international norm 9. Canada 28. India 47. Nepal 10. Cayman Islands 29. Indonesia 48. New Zealand 11. Chile 30. Iran 49. Niger 59. Saudi Arabia 69. Ukraine 12. Colombia 31. Ireland 50. Norway 60. Seychelles 70. United Arab 13. Congo 32. Jamaica 51. Oman 61. Singapore Emirates 14. Costa Rica 33. Jersey 52. Pakistan 62. Spain 71. United Kingdom 15. Denmark 34. Jordan 53. Panama 63. Sri Lanka 72. United States 16. Djibouti 35. Kazakhstan 54. Peru 64. Suriname 73. Uruguay 17. Ecuador 36. Kosovo 55. Philippines 65. Switzerland 74. Venezuela 18. Egypt 37. Kuwait 56. Qatar 66. Taiwan, China 75. Viet Nam 19. El Salvador 38. Latvia 57. Romania 67. Thailand 76. Yemen 24 20. Fiji 39. Liechtenstein 58. Russia 68. Turkey

(4) Rotation Example: Variety of Messages

25 (4) Rotation

DESCRIPTION IMPACT

• Multiple health warnings and • Provides more information messages

– appear at the same time • Prevents overexposure and – are changed periodically – • Accounts for different every 12-36 months. reactions to messages

• Prevents the tobacco industry from choosing the least effective warning for a market share 26

Example of a Rotation Schedule

• Two sets of warnings – A and B • Each set contains 8 warnings • Each set appears for one year, including a four-month transition period Set(s)

January 2014 February 2014 March 2014 April 2014 A 2 0 May 2014 June 2014 July 2014 August 2014 A 1 4 September 2014 October 2014 November 2014 December 2014 A and B

January 2015 February 2015 March 2015 April 2015 B 2 0 May 2015 June 2015 July 2015 August 2015 B 1 5 September 2015 October 2015 November 2015 December 2015 B and A 27 (5) Color Contrast: Distinct Text Color vs. Blending into Background

28 (5) Color Warning Text is Same Color as Other Text

29 (5) Color Contrast: Three Colors vs. Full Color

30 (5) Color

DESCRIPTION IMPACT

• Full color • Maximizes visibility and printing for comprehension pictures

• Text color contrasts with background color

31 (6) Language

Need photo of English warning on Chinese cigarettes

32 (6) Language

DESCRIPTION IMPACT

• Label should be in the • Using all principal country’s principal languages ensures a language(s). broader reach.

New Zealand – Belgium – warnings Brunei – Malay on front, English on back warnings in English in Dutch, French, 33 and Maori and German Features of Health Warnings

To Align with FCTC Art. 11 Features and its Guidelines • Principal display areas (plural) – typically front 1. Placement/location and back • 50% or more, but no less than 30% of principal 2. Size display areas

3. Composition/content • Text and pictures

• Multiple messages at any given time 4. Rotation • Sets should rotate every 12-36 months • Full color pictures 5. Color • Contrast between text and background color 6. Language • Principal language(s) 34 Spot the Loophole #1

How could the industry technically comply with the law while minimizing the impact of health warnings? “The text and pictures comprising the health warnings and messages shall occupy no less than 50% of the package, not counting the space taken up by any border surrounding the health warnings and messages.”

(Hint: there are at least two loopholes)

35 Spot the Loophole #1(a)

 Text and picture components could be separated – text on front, picture on back 36 Spot the Loophole #1(b)

How could the industry technically comply with the law while minimizing the impact of health warnings? “The text and pictures comprising the health warnings and messages shall appear together and shall occupy no less than 50% of each principal display area of the package, not counting the space taken up by any border surrounding the health warnings and messages.”  Entire warning could be placed on 100% of the back, covering an average of 50% of the pack 37 Spot the Loophole #2: Issue of the Supply Deadline

How could the industry technically comply with the law while minimizing the impact of health warnings?

“Article 6: All tobacco packages fabricated in or imported to Mexico must show the new health warnings within 9 months from the date on which the Secretariat publishes the health warning designs in the Official Gazette of the Federation.”

38 Spot the Loophole #2: Issue of the Supply Deadline

“Article 6: All tobacco packages fabricated in, imported to, or sold in Mexico must show the new health warnings within 9 months from the date on which the Secretariat publishes the health warning designs in the Official Gazette of the Federation.”

 Because the law addresses only fabricating and importing products (and not sale), the industry could produce/import as many packs as possible before the 9-month deadline, and continue to sell packs that meet the old requirements after the deadline

The law must establish the supply deadline – the date after which non-compliant products cannot be sold 39

Packaging and Labeling Measures

Presentation Outline

Problem: Tar & Nicotine Yields:

• They are measured by machines that purport to emulate human smoking

• No relation to the amount of tar and nicotine actually delivered to smokers. FTC/ISO testing method 42 Tobacco manufacturers have designed their products to:

1.) intentionally cheat the smoking machine tests; and

2.) deliver a precise amount of nicotine to maximize addiction.

45 The role of additives in the “low tar”/ “light” deception • Ammonia technology - “free nicotine”

• Smoothers and flavorants – also control nicotine absorption

• Other flavorants - flavor compensation in “low tar” products (also are attractive to youth)

• Cocoa - expands airways - higher nicotine and tar intake

46 Cigarette Manufacturing Summary

Summary: “Low Tar” Fraud

• Testing machines do not mimic how real people smoke

• Tobacco industry designs cigarettes to cheat the smoking machines

Marketing the fraud

“All work in this area should be directed towards providing consumer reassurance about cigarettes and the smoking habit.”

“This can be provided in different ways, e.g., by claimed low deliveries, by the perception of low deliveries and by the perception of ‘mildness.’”

49 50 Target Markets for Deception

Global sales increased from 423 billion cigarettes in 1998 to nearly 756 billion in 20084

Internal BAT document, circa 1997 51 “Those who smoke low tar and nicotine cigarettes generally do so because they believe such cigarettes are ‘better for you.’” “In effect, the Marlboro 85 smokers in this study did not achieve any reduction in the smoke intake by smoking a cigarette (Marlboro Lights) normally considered lower in delivery.” 52 Using packaging and labeling to perpetuate the fraud

Misleading descriptors/terms 53 Misleading numbers 54 Misleading colours 1 4 6 Misleading colours and numbers 56 The industry continuously adapts

Color coding inside the pack 57 Misleading pack shape/size

Spelling out the change to consumers

Soon your Derby is going to change the name of its versions King Size, Suave (Mild) and Lights. Now besides the different yields, the traditional colours are going to mark the difference among them:

Red for those that prefer a more intense taste Blue for those who want mildness Silver light taste, the lighter of the family 59 Communications to retailers

60 Impact of the “low tar” fraud

• Deceives consumers – Believe tar numbers reflect actual exposure6

• Encourages consumption – Believe “low tar” cigarettes are less harmful7

• Discourages/delays quitting – “Low tar” brand smokers much less likely to quit. 8 • Deeper inhalation - more adenocarcenoma61

The “low tar”/“light” cigarette fraud

“Defendants falsely marketed and promoted low tar/light cigarettes as less harmful than full flavor cigarettes in order to keep people smoking and sustain corporate revenues” (emphasiss added)1

Hon. Gladys Kessler, US District Court Judge

62 FCTC Requirements

• Prohibit packaging and labeling that promotes a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions • Including any term, descriptor, trademark, figurative or any other sign that directly or indirectly creates the false impression that a particular tobacco product is less harmful (FCTC Art. 11.1(a)) • Emissions yield numbers should not be allowed because they are misleading (Art. 11 Guidelines)

Uruguay’s Measures

• Single brand presentation requirement

• 80% graphic health warnings

64 4. Constituent and emissions information

65 FCTC requirements for constituents and emissions

• Package must contain information on relevant constituents and emissions (FCTC Art. 11.2)

• Information should be descriptive only (Guidelines, paras 32-35)

• Emission yields/figures should be prohibited because they are misleading (Guidelines, paras 32- 35)

66 Descriptive versus quantitative information

67 Packaging and Labeling Measures

Presentation Outline