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Regulatory Chills: Tobacco Industry Legal Threats and the Politics of Tobacco Standardised Packaging in New Zealand Eric Crosbie, George Thomson

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Regulatory Chills: Tobacco Industry Legal Threats and the Politics of Tobacco Standardised Packaging in New Zealand Eric Crosbie, George Thomson ARTICLE Regulatory chills: tobacco industry legal threats and the politics of tobacco standardised packaging in New Zealand Eric Crosbie, George Thomson ABSTRACT AIMS: To describe the process of enacting tobacco standardised packaging (SP) amidst tobacco industry legal threats in New Zealand. METHODS: Relevant government and NGO documents, and media items were reviewed. Policymakers and health advocates in New Zealand were interviewed. The data were triangulated and thematically analysed. RESULTS: In 2011, the New Zealand Government announced the goal of becoming a smokefree country (reducing smoking prevalence to 5%) by the year 2025, and considered adopting SP. In April 2012, the Government announced it would introduce SP, but tobacco companies threatened the Government with litigation in international courts for violating investment and intellectual property rights. In response, the Government adopted a ‘wait and see’ approach, waiting until two legal challenges against Australia’s SP law were resolved before it enacted its legislation in September 2016. Health advocates, limited due to funding constraints, attempted to alter the Government’s approach to the legal threats without success. Interviews with policymakers and health advocates confirmed these threats helped produce a regulatory chill, delaying the policymaking process by three years. CONCLUSION: The New Zealand case illustrates how the threat of a potential international lawsuit can create a chilling e ect by helping delay the implementation of public health policies. he constantly evolving nature of trade on tobacco control policies.8 This emerging governance in the 21st century is literature highlights how tobacco companies increasingly having a profound impact have used trade agreements to try and T 9,10 on public health and the development of block innovative public health proposals, public health policies globally.1 New rules and how the threat of legal action can help governing international trade are increas- dissuade governments from implementing ingly affecting access to medicines,2 alcohol progressive policies.11,12 3 4 control and nutrition regulations. In partic- The ‘regulatory chill’ hypothesis suggests ular, these issues are highly contentious in that governments may weaken or withdraw 5 trade and tobacco control. public policies due to concerns over While much of the focus of the trade and capital fl ight or potentially costly trade tobacco control literature has concentrated and investment lawsuits.13 Some critics of on commercial aspects of trade liberali- this hypothesis argue policymakers are sation on tobacco consumption6 and legal unaware of trade and investment law, and implications of trade agreements on public consequently do not take these laws into health,7 recent studies have examined the consideration when making legislative and political implications of trade agreements regulatory decisions.14 Other critics argue NZMJ 13 April 2018, Vol 131 No 1473 ISSN 1175-8716 © NZMA 25 www.nzma.org.nz/journal ARTICLE it is diffi cult to prove that legal threats in accordance with a protocol approved alter the regulatory process and produce by the University of California, Santa Cruz a chilling effect.15 However, recent studies Committee on Human Research. We also illustrate policymakers are increasingly interviewed one offi cial from the Ministry aware of trade and investment law and of Foreign Affairs and Trade who requested incorporate these understandings into the anonymity. In the Results below, inter- policymaking process.16 viewees are cited by initials, with a key This article examines the politics of to the initials given in the online supple- regulatory chill and the reactions of a mentary material (Supplementary Table nation-state to industry legal threats, by 1). Results from these sources were trian- analysing the policy process for tobacco gulated and thematically analysed through 19 standardised packaging (SP) in New Zealand standard process tracing frameworks. (2010–16). Instead of testing the regulatory chill hypothesis (whether a policy is enacted Results or weakened), this paper investigates the A series of delays to SP occurred from extent to which industry legal threats signifi - November 2010 to September 2016. All 23 cantly contributed to political delays that interviewees (policymakers and advocates) have a profound impact on public health. confi rmed that industry legal threats were In September 2009, the Māori Affairs either the most signifi cant or a primary Select Committee of the New Zealand reason for delays (Supplementary Table parliament started an inquiry into the 1).AI, BS, DS, LW, MF, FT, ILG, JS, KW, SS, SO, tobacco industry and the disproportionate TUF, CB, EC, GL, JK, LR, PS, RB, SB, SE, ME, LD. harm of tobacco use to the Māori popu- Introduction of standardised lation. In November 2010, the committee recommended New Zealand become packaging (SP) From November 2010, the Cabinet ‘smokefree’ (interpreted as reducing considered the SP recommendation and in smoking prevalence to 5%) by 2025.17 The April 2012 agreed in principle to introduce committee recommended several policies to SP20 (Figure 1). However, the New Zealand enable this goal, including SP. Over the next Government was divided on the issue of six years, tobacco companies pressured the introducing SP. Associate Health Minister New Zealand Government with legal threats and Māori Party (an indigenous rights party to the SP proposal. We examine the effects of within government) Member of Parliament this pressure. (MP), Tariana Turia, was highly supportive of introducing SP, stating it was “a powerful Methods tool” to reduce the appeal of tobacco We reviewed New Zealand Government products and smoking in general. Turia and health group documents, and New also stated SP would fulfi ll New Zealand’s Zealand media items from offi cial and commitment to the World Health Organiza- media websites using standard snowball tion’s Framework Convention on Tobacco searches,18 beginning with search terms Control treaty (FCTC).20 The National ‘plain packaging’, ‘standardised packaging’, Party-led coalition Government had dele- ‘international trade’, ‘intellectual property’, gated responsibility for tobacco control to ‘tobacco companies’, ‘threats’, as well as Turia, who was a Minister outside Cabinet. using key dates and specifi c actors. Between In New Zealand, an Associate Minister’s January and June 2015, we attempted to delegated authority is constrained, as policy recruit via email and telephone 38 New decisions are controlled by the Health Zealand interviewees closely involved in Minister and Cabinet. the SP process. Twenty-three agreed to be Meanwhile some members of Cabinet interviewed, 10 declined, and fi ve never were less optimistic and more cautious responded to multiple requests. Of the 23 about SP, including Health Minister interviewees, six were tobacco control Tony Ryall, who lacked a demonstrated advocates, four were academics, 11 were commitment to the Smokefree 2025 goal.21 members of parliament (MPs) and one Prime Minister Key told reporters that was a Health Ministry offi cial. The inter- Government was “likely” able to introduce viewees agreed to waive their anonymity NZMJ 13 April 2018, Vol 131 No 1473 ISSN 1175-8716 © NZMA 26 www.nzma.org.nz/journal ARTICLE SP legally, but that it was “not absolutely disagree.co.nz), which reiterated industry clear cut” and no “slam dunk”22 (Supple- arguments submitted during the consultation mentary Table 2). National Party Trade period. Their television advertising achieved Minister Tim Groser also said there were very high reach and frequency of exposure, “some complexities” concerning the and presented arguments that were either proposal’s legality needing to be addressed.23 unsound or demonstrated fallacies.28 The Health Ministry, which is respon- Health group support sible for drafting and implementing the SP The main public health groups in New legislation, held a 60-day public consultation Zealand, and international health groups, period on the draft (the interim version is lawyers, activists and academic scholars called a ‘Bill’) between August and October submitted comments supporting the 2012. Bill.29 They argued SP reduced the appeal Tobacco industry initial opposition of tobacco products by removing the British American Tobacco (BAT) (68.3% glamorisation and contributed to the de-nor- market share in New Zealand), Imperial malisation of tobacco, especially for youth Tobacco (20.0%) and Philip Morris Interna- and vulnerable populations. Health groups tional (PMI) (7.1%) opposed SP. As with the also identifi ed there may be domestic and opposition against SP in other countries, international legal implications associated including Australia, Ireland, France and with SP, but did not see these as a reason the UK,24 their comments centred around not to proceed. Instead, they argued SP was arguments that SP: 1) would not work, 2) a justifi ed public health action and met the would increase illicit tobacco trade, 3) would Government’s commitments to the FCTC. create unnecessary problems for retailers Ministry of Health regulatory and 4) would violate domestic laws and impact statement and reports to international treaties governing intellectual property and investment.25–27 Cabinet In November 2012, the Health Ministry The industry claimed the proposal would: presented their report on the submissions,29 a) deprive them of intellectual property mentioning that several submitters argued rights by degrading the value
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