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What Next for Tobacco's Legal War Against Regulation?

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What Next for Tobacco's Legal War Against Regulation? BMJ 2014;349:g5770 doi: 10.1136/bmj.g5770 (Published 23 September 2014) Page 1 of 2 Feature BMJ: first published as 10.1136/bmj.g5770 on 23 September 2014. Downloaded from FEATURE BRIEFING What next for tobacco’s legal war against regulation? Worldwide, the tobacco industry is engaged in more legal action against product controls than ever before, Adrian O’Dowd reports Adrian O’Dowd freelance journalist, London, UK What is the latest legal challenge from the application of the legislation. The challenges do not force the tobacco industry in the UK over tobacco Australian government to suspend or reverse its policy in the meantime. They do, however, make other countries considering control measures? introducing similar legislation more likely to wait and see what happens. Philip Morris, the UK affiliate of one of the largest tobacco firms in the world, Philip Morris International (PMI), is strongly Judith Mackay is coauthor of the Tobacco Atlas, a joint opposed to government’s plans to introduce standardised publication from the World Lung Foundation and American packaging of tobacco products.1 Cancer Society that graphically details global tobacco use, 2 progress made in tobacco control, and the latest products and In its response to a recent Department of Health consultation http://www.bmj.com/ tactics being deployed by the tobacco industry. She says: “You on the regulations governing introduction of such packaging, can apply the famous ‘scream test’—if the industry screams (as Phillip Morris said such a move was equivalent to taking away 3 it does for tax, advertising bans and smoke-free areas) then we its intellectual property without compensation. know that these work.” “Standardised packaging is a euphemism for government-mandated destruction of property. It is unlawful, Will standardised packaging reduce the disproportionate, and at odds with the most basic requirements of the rule of law. If necessary, however, PMI is prepared to number of smokers? on 29 September 2021 by guest. Protected copyright. protect its rights in the courts and to seek fair compensation for The UK has run various consultations and seems convinced that the value of its property,” said the response. the policy will reduce the number of people smoking. The latest independent review, carried out in April by Cyril Chantler, a Why is the tobacco industry so opposed former paediatrician and past chair of the academic health to standardised packaging? science centre, University College London Partners, supported standardised packaging.4 Australia was the first country to introduce standardised In addition, there seems to be growing evidence that it has packaging for tobacco products, in December 2012. Three of worked in Australia. Recent data from there show a decline in the largest tobacco companies launched a constitutional the rate of smoking from 15.1% of the adult population in 2010 challenge to its plain packaging laws, claiming that their to 12.8% in 2013.5 Data from the Australian Treasury also show intellectual property had been acquired and that the law would a 3.4% fall in tobacco sales by volume in the first year after the encourage fake products to enter the market. The challenge was introduction of standardised packs.6 rejected by Australia’s High Court. Mackay says, “If the British government were to introduce plain But the Australian government is still fighting challenges over packaging, then it would encourage other countries to follow. plain packaging from Philip Morris Asia over the bilateral Low and middle income countries simply do not have the trade, investment treaty between Australia and Hong Kong, and from legal, and economic expertise to fight the tobacco industry and several countries who have complained it breaches World Trade trade threats.” Organisation agreements. Hearings for the Philip Morris Asia challenge are due to take place in February 2015. If successful, the Australian government may have to suspend enforcement of the legislation and compensate the company for loss suffered through compliance with the legislation, or compensate it for loss suffered as a result of the enactment and continued [email protected] For personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribe BMJ 2014;349:g5770 doi: 10.1136/bmj.g5770 (Published 23 September 2014) Page 2 of 2 FEATURE Is the tobacco industry becoming more probably is more legal action now globally than there has been BMJ: first published as 10.1136/bmj.g5770 on 23 September 2014. Downloaded from litigious? previously, but this reflects mainly that there is much more tobacco control activity around the world than there used to be, The tobacco industry has a long history of legal challenges over which is largely being driven by tobacco control now being a the introduction of new laws and regulations that restrict global endeavour through the WHO framework convention.” smoking. As early as 1969, Philip Morris began discussing legal strategies to counter tobacco control media campaigns in the Are these legal challenges successful? US. In 1969, the US Congress enacted the Public Health Cigarette Smoking Act, which required the warning: “The In terms of delaying changes, they are, according to Liberman: Surgeon General has determined that cigarette smoking is “They tie up government resources and increase the costs of dangerous to your health” to be added to packaging. This bill, tobacco control, but on the whole they are not successful when signed into law by then president, Richard Nixon, in April 1970, judged on their substance.” was the result of more than a year of fighting among tobacco Mackay says: “These challenges are surprisingly unsuccessful. companies, broadcasters (who feared they would lose advertising However, they delay the legislation they are challenging and income), the Federal Trade Commission, the Federal intimidate other countries from introducing such measures.” Communications Commission, and US Congress. Today, more action is happening globally to reduce smoking, Is the tobacco industry ever likely to stop so the industry is responding in turn. The 2012 Tobacco Atlas using legal challenges over tobacco 7 said that legal challenges had recently been mounted in 18 countries. control measures? Similar numbers of countries are facing challenges today, Amanda Sandford, research manager at the campaigning according to Mackay: “It is a global phenomenon and not just organisation Action on Smoking and Health (ASH), says: standardised packaging by any means. There are dozens of “Based on past practices, they will probably still continue to further examples,” she says. fight and challenge measures. But who can say, it may come to the point where the market is so small in the UK and Western On what other grounds are tobacco countries that the industry will turn its attention to the poorer countries that have fewer controls and less strong measures in companies making legal challenges? place. It may shift the balance of where they apply their legal Brazilian tobacco lobbying group Sinditabaco recently brought challenges.” an action to stop the National Health Surveillance Agency (ANVISA) from implementing a ban on additives and Competing interests: I have read and understood BMJ policy on http://www.bmj.com/ flavourings, arguing that ANVISA lacked legal authority and declaration of interests and have no relevant interests to declare. the rule was not supported by scientific evidence. Provenance and peer review: Commissioned; not externally peer There has also been a large lobbying campaign to weaken the reviewed. European Union’s Tobacco Products Directive, while in South 1 O’Dowd, A. UK government may face legal challenge from Philip Morris over plain cigarette Africa in 2012, the Constitutional Court dismissed an appeal packaging. BMJ 2014;349:g5172. by BAT (British American Tobacco) after a lower court had 2 Department of Health. Consultation on the introduction of regulations for standardised ruled against its claim that the Tobacco Products Control Act packaging of tobacco products. 2014. www.gov.uk/government/consultations/standardised- packaging-of-tobacco-products-draft-regulations. on 29 September 2021 by guest. Protected copyright. was unconstitutional. The court found that the hazards of 3 Philip Morris. Response to the consultation on “standardised packaging”. 2014. www.pmi. smoking outweighed the interests of smokers and that South com/eng/tobacco_regulation/submissions/Pages/uk_standardised-packaging- submission0812-2285.aspx Africa was obliged to observe the World Health Organization 4 Kmietowicz Z. Government is “minded” to introduce plain packaging—after another Framework Convention on Tobacco Control. consultation. BMJ 2014;348:g2596. 5 Kmietowicz Z. Australia sees large fall in smoking after introduction of standardised packs. In the same year in Scotland, Imperial Tobacco lost its challenge BMJ 2014;349:g4689. to a ban on cigarette vending machines and point-of-sale 6 Australian Department of Health. Commonwealth Treasury tobacco clearances data 2013. 8 www.health.gov.au/internet/main/publishing.nsf/Content/tobacco-kff. displays. The Supreme Court stated the law was designed to 7 American Cancer Society. Tobacco Atlas. 4th ed. 2012. www.tobaccoatlas.org/uploads/ protect public health by reducing the attractiveness and Images/PDFs/Tobacco_Atlas_2ndPrint.pdf. 8 Christie B. Ban on tobacco display to go ahead in Scotland after court ruling. BMJ availability of products, not prohibiting their sale. 2012;345:e8490. Jonathan Liberman, director of the McCabe Centre for Law and Cancer, Cancer Council Victoria, and Union for International Cite this as: BMJ 2014;349:g5770 Cancer Control (UICC), in Melbourne, Australia, says: “There © BMJ Publishing Group Ltd 2014 For personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribe.
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