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14. the Tobacco Endgame: Experiences from Finland Milka Sormunen and Sakari Karjalainen

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14. the Tobacco Endgame: Experiences from Finland Milka Sormunen and Sakari Karjalainen 14. The tobacco endgame: experiences from Finland Milka Sormunen and Sakari Karjalainen 1. INTRODUCTION The objective of tobacco control policies can be formulated either in terms of reducing tobacco consumption or ending the use of tobacco products. The latter approach, commonly called the ‘tobacco endgame’, shifts the focus from tobacco control towards a vision of a tobacco-free future where smoking prev- alence is brought to near-zero levels. The tobacco endgame concept refers both to a process – the final stage of the process of ending tobacco use – and a goal.1 The concept is radical in that it shifts regulatory focus to the supply side of the market, the tobacco industry.2 The origins of endgame strategies lie in an article published by Benowitz and Henningfield in 1994 where the authors proposed that nicotine in cigarettes be gradually reduced to non-addictive levels.3 The idea has been further developed by scholars, but only in recent years has there been research about the explicit notion of seeking an endgame for smoking.4 In 2010 Finland was the first country in the world to include the tobacco endgame as the objective of its national tobacco regulation. Prior to this, the objective of Finnish tobacco regulation was to reduce tobacco use but not to end it completely. The Finnish Tobacco Act recently underwent a comprehen- sive reform after which the current Tobacco Act (549/2016) came into force 1 George Thomson, Richard Edwards, Nick Wilson and Tony Blakely, ‘What Are the Elements of the Tobacco Endgame?’ (2012) 21 Tobacco Control 293. 2 Cynthia Callard and Neil E Collishaw, ‘Exploring Vector Space: Overcoming Resistance to Direct Control of the Tobacco Industry’ (2012) 21 Tobacco Control 291; Bryan P Thomas and Lawrence O Gostin, ‘Tobacco Endgame Strategies: Challenges in Ethics and Law’ (2013) 22 Tobacco Control i55. 3 Neal L Benowitz and Jack E Henningfield, ‘Establishing a Nicotine Threshold for Addiction. The Implications for Tobacco Regulation’ (1994) 331 New England Journal of Medicine 123. 4 Kenneth E Warner, ‘An Endgame for Tobacco?’ (2013) 22 Tobacco Control i3. 223 Milka Sormunen and Sakari Karjalainen - 9781788974820 Downloaded from Elgar Online at 09/25/2021 08:37:30AM via free access 224 Human rights and tobacco control in 2016. Finland now aims to be smoke free by 2030, meaning that 5 per cent or less of the population will use tobacco products daily by that year.5 The Tobacco Act begins by describing the objective of the Act (section 1): (1) The objective of this Act is to end the use of tobacco products and other nicotine-containing products that are toxic to humans and cause addiction. (2) To achieve the objective referred to in subsection 1, this Act lays down measures to prevent people from taking up the use of tobacco products and developing a nicotine addiction, to promote the cessation of the consumption of tobacco products and similar products and to protect the population from exposure to smoke from such products.6 This chapter provides an analysis of the endgame objective of the Finnish Tobacco Act from a human rights perspective, with a special focus on chil- dren’s rights. The chapter first discusses the legislative history of the endgame objective in the Finnish context. By analysing the preparatory works of the Finnish legislation as well as other relevant materials, the chapter focuses on reasons for which the objective was set, especially on the role of fundamen- tal and human rights arguments.7 During the drafting of the legislation, the endgame objective was not supported by human rights-related arguments; on the contrary, concerns were raised that the objective would allow for interpretations that would restrict fundamental and human rights of those using tobacco products as well as rights associated with the tobacco industry. Another concern was that the means presented in the Tobacco Act would not be suitable for achieving the aim.8 Despite these concerns, endgame became the objective of tobacco regulation. In response to the initial concerns, the latter part of the chapter analyses the endgame objective in the light of human rights obligations and focuses on children’s rights because children are dependent on 5 Government Bill 15/2016, 52. See ‘Smoking in Finland’ (National Institute for Health and Welfare, 14 March 2018) https:// thl .fi/ en/ web/ alcohol-tobacco -and -addictions/tobacco/ smoking -in -finland, accessed 24 July 2019, stating that the preva- lence of daily smoking among people aged 20–84 in 2017 was 13 per cent for men and 10 per cent for women. According to the latest Adolescent Health and Lifestyle Survey (2017), 7 per cent of boys and girls aged 14–18 smoked daily. 6 Unofficial translation by the Finnish Ministry of Social Affairs and Health. The Act is legally binding in Finnish and Swedish only. 7 In Finland the Parliament enacts most legislation on the basis of Government Bills. Government Bills are considered weakly binding sources of law – Finnish sources of law are customarily divided into strongly binding, weakly binding and admissible – and are used to interpret legislation since they are considered to reflect the intent of the drafters. 8 Constitutional Law Committee Opinion 21/2010, 6; Constitutional Law Committee Opinion 17/2016, 2. Milka Sormunen and Sakari Karjalainen - 9781788974820 Downloaded from Elgar Online at 09/25/2021 08:37:30AM via free access The tobacco endgame: experiences from Finland 225 adults and are more susceptible to the dangers of smoking and being exposed to smoke.9 The analysis shows that human rights obligations can be interpreted as permitting and even requiring a tobacco endgame or other similar strategy aiming at reducing smoking as much as possible. 2. TOBACCO ENDGAME AS THE OBJECTIVE OF THE FINNISH TOBACCO ACT Finland has been building an active tobacco policy since the early 1970s. The Tobacco Act (693/1976) that came into force in 1977 introduced measures with the objective of reducing use of tobacco products, for instance prohibition of advertising. Prohibition of indirect advertising was adopted in 1994. The idea of a tobacco-free Finland was first presented in 2006 by former Prime Minister and then-speaker of the Parliament from the Social Democratic Party, Paavo Lipponen.10 In 2008 the Tobacco-free Finland 2040 project, which later became the Tobacco-free Finland 2030 Network, was established. In 2010 the objective of the Tobacco Act was changed to ending tobacco use by 2040.11 In the 2016 reform of tobacco legislation the target was set to 2030 and the objective was broadened to all non-medical nicotine products.12 When analysing the preparatory works of the Tobacco Act, Opinions of the Constitutional Law Committee of the Parliament, the prime authority of con- stitutional interpretation and review in Finland, are essential. Finland does not have a constitutional court, and the judiciary has traditionally played a limited role in reviewing the constitutionality of legislation. The Constitutional Law Committee is a political body reviewing constitutionality of legislative propos- als ex ante before they are passed. The Committee is composed of Members of Parliament. The mandate of the Committee includes issuing statements on the constitutionality of legislative proposals and other matters brought to its consideration as well as on their relation to international human rights treaties (section 74 of the Constitution). The Committee hears experts in constitutional law but is not obliged to follow their advice. The Opinions of the Committee determine whether a legislative proposal may be enacted in accordance with 9 US Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (Atlanta: US Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health 2006). 10 Yle Uutiset, ‘Lipponen kieltäisi tupakan myynnin’ (Yle, 30 October 2008) https://yle .fi/ uutiset/3 -5755546, accessed 24 July 2019. 11 Government Bill 180/2009, 18. 12 Government Bill 15/2016, 53–58. Milka Sormunen and Sakari Karjalainen - 9781788974820 Downloaded from Elgar Online at 09/25/2021 08:37:30AM via free access 226 Human rights and tobacco control the ordinary legislative procedure through a majority of votes cast or whether it has to be enacted through a qualified procedure for constitutional enactments due to its conflict with the Constitution or human rights treaties (section 73 of the Constitution). The qualified procedure is rarely used; instead, the Committee may require certain changes to be made in order for the proposal to be passed in accordance with the ordinary procedure. The Committee may also identify issues of interpretation and guide the interpretation without requiring the use of the qualified procedure.13 In the Government Bill proposing the endgame as the objective of tobacco legislation it is explained that smoking has not decreased as much as assumed, which is why it is necessary to enhance the measures aimed at reducing tobacco consumption. The Government Bill mentions as an objective that more young people would not consider starting smoking before adult age and would therefore give up the idea of starting to use tobacco products in the first place.14 The new objective, ending consumption of tobacco products by 2040, had been proposed by the working group that started the preparation of the legislative proposal.15 In the Government Bill it is explained that the objective is intended to be achieved so that young people would not even start smoking as well as so that current smokers would reduce tobacco consump- tion and eventually quit smoking. The Government Bill explains that public interventions are justified because of the harmful health and economic effects of tobacco.
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