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Submissions: Inquiry Into Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009

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Submissions: Inquiry Into Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009 Submission to the Inquiry into Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009 Dr Patrick Basham1 Democracy Institute2 30 April 2010 SUMMARY This submission examines two aspects of the plain packaging issue. First, the empirical evidence that such packaging will, in the language of the legislation, “reduce initiation of tobacco use, consumption and quitting relapse” and “enhance the effectiveness of package warnings”; and, second, the feasibility of plain packaging given the framework of international intellectual property law. It is concluded that, in many instances, the empirical evidence fails to meet the minimal standards of accepted social science research and therefore fails to provide robust and reliable support for the claims that plain packaging of tobacco products will reduce smoking initiation, consumption, and quitting relapse. More specifically, the empirical evidence fails to provide any evidence of a causal link between plain packaging and youth smoking initiation. Additionally, it is found that the empirical evidence provides no support for the claim that such packaging enhances the effectiveness of package warnings beyond that of the current warnings used in Australia or employed elsewhere. Finally, this submission 1 Director of the Democracy Institute; Adjunct Scholar, Cato Institute; author, British Medical Journal tobacco policy blog; author Butt Out! How Philip Morris Burned Ted Kennedy, the FDA & the Anti‐Tobacco Movement Democracy Institute 2009; coauthor Hidden in Plain Sight: Why Tobacco Display Bans Fail Democracy Institute 2009. 2 2nd Floor 145‐157 St John Street London EC1V 4PY UK www.democracyinstitute.org 1 argues that plain packaging is a violation of intellectual property trade agreements (see Submission Part II). INTRODUCTION There are a considerable number of issues relating to the requirement that tobacco products be sold only in “plain packages”. This submission confines itself to an examination of two: first, the empirical evidence that supports claims that such packaging will reduce tobacco initiation, reduce prevalence and consumption, prevent quitting relapse, and enhance the effectiveness of the health warnings, and second, the feasibility of plain packaging within the framework of international intellectual property law. Because so much of the research and argument in favour of plain packaging has been produced in Australia, we concentrate on this material. The plan of the submission is as follows. We first note the reasons cited in the legislation for requiring plain tobacco packaging. Second, we examine the published empirical evidence supporting each of these reasons, focusing especially on its conformity with the international standards of applied social research. Finally, we examine whether plain tobacco packaging runs afoul of the international intellectual property law. THE CASE FOR PLAIN TOBACCO PACKAGING The proponents of plain packaging have advanced a number of arguments in favour of such packaging requirements for tobacco. However, in this submission we focus only on those advanced in the Object of the legislation: specifically, reduce initiation of tobacco use, tobacco consumption and quitting relapse; enhance the effectiveness of package warnings; and remove the package’s ability to mislead and deceive consumers. These claims are based, according to the legislation, on a fact, namely that “the tobacco 2 industry’s use of colour, novelty packaging and other imagery enables it to target particular market segments and convey brand character.” The implication is that these normal marketing activities in the pursuit of building brand share are somehow inappropriate and must be remedied by plain packaging. But this represents confusion. The fact that tobacco packages use colour or distinctive packaging to build a brand for legal consumers does not in itself justify plain packaging since these activities are only inappropriate and thus supportive of plain packaging if they target underage consumers. In short, the use of colour and novelty packaging and the targeting of particular market segments in the pursuit of brand share are features of normal marketing and by themselves do not justify plain packaging. For these normal brand marketing activities to be supportive of plain packaging they must be shown to be directed to or affecting underage consumers. A REVIEW OF THE EMPIRICAL EVIDENCE SUPPORTING PLAIN PACKAGING Methodological Issues Before examining the individual studies cited as evidence supporting plain packaging, we first set out several methodological issues which occur throughout the research on plain packaging. These methodological issues are in many instances so substantial that they undermine any credibility that the studies may claim in providing evidence of a connection between smoking and plain packaging. Measurement A basic requirement of science is its ability to warrant that its measurements (data in the case of social science research) are accurate. If a scientific report cannot warrant the accuracy of its data, then it cannot warrant the accuracy of its conclusions. The 3 literature about plain packaging is full of measurements that cannot be warranted as accurate since, for instance, they are based on the unverified self‐reports of subjects, particularly about smoking status, or probabilistic estimates of subjects’ future beliefs and actions. Self‐reports are subject to a number of accuracy problems. For instance, self‐reported data may be inaccurate because of certain situational factors associated with the social desirability of the behaviour, such as smoking, being studied. The research literature notes that self‐reports are plagued by social desirability bias where subjects report what they believe the interviewer wishes to hear or what is the socially preferred option rather than what is actually the case. This is particularly likely to occur when the purpose of the research or the research sponsor are known to the subject. (As is the case in the Environics research on packaging and tobacco warnings. The subjects were told that Health Canada was the research sponsor.) Luepker et al (R Luepker et al ‘Validity of telephone surveys in assessing cigarette smoking in young adults’ American Journal of Public Health) found that “reported quitting [smoking] by telephone was an unstable category because of relapse and misreporting with 35 percent of self‐described quitters in the telephone interview admitting to being smokers in a face‐to‐face interview.” Self‐reported data is also often inaccurate because of the cognitive processes that underlie the survey process. Research has found that least four different cognitive processes are involved in answering survey questions, including comprehension of the question, retrieval of the required information, decision‐making as to whether the retrieved information matches the question, and, finally, providing the response. Errors can occur at each stage in this process, as well as through unconscious rationalization and outright deception. Some studies have shown that the likelihood of untruthful responses rises with the degree of threat posed by the question. 4 As Brener et al (N Brener et al ‘Assessment of factors affecting the validity of self‐ reported health‐risk behavior among adolescents: evidence from the scientific literature’ Journal of Adolescent Health) observe: It has been hypothesised that error potentially arises at each of these stages, which in turn contributes to validity problems…[B]ecause the specific cognitive operations employed in responding to a question may differ depending on such factors as the length of the reference period and the type of response required…validity can vary from question to question.” In short, a subject’s self‐reported data then, assuming that it is not self‐consciously deceptive, is always at least two removes from an objective and accurate report in that they can only report what they remember seeing, doing, believing, and what they think they saw, did, or believed, both of which can be different from what they in fact they did see, do, or believe. As Agostinelli and Grube note “People are notoriously inaccurate in making attributions for the causes of their behaviour.” (G Agostinelli and J Grube ‘Tobacco counter‐advertising: A review of the literature and a conceptual model for understanding effects’ Journal of Health Communication 2003) Yet, an extraordinarily large amount of the plain packaging research literature is in fact based on taking those self attributions at face value. That this undermines the conclusions of much of the research on plain packaging is accepted by even an advocate of such packaging, Goldberg, who notes that the influence of packaging on smoking “cannot be validly determined by research that is dependent on asking consumers questions about what they think or what they might do if all cigarettes were sold in the same plain and generic packages.” (Goldberg et al 1995 When Packages Can’t Speak; Possible Impacts of Plain and Generic Packaging of Tobacco Products Health Canada) There are corrective estimation techniques that can address some of these issues of measurement accuracy, but it is not clear the studies examine here have used them. 5 Alternative Explanations & Confounding Variables All of the plain packaging studies fail to consider other explanations for the results that they report. The research literature on smoking initiation generally suggests that smoking, like other adolescent instances of risk‐taking,
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