Monthly Archives: February 2015

Plain packaging: Ireland vs Big Tobacco

February 25, 2015

New Zealand, France, Norway and Finland are all considering plain cigarette packaging legislation

The government is facing down legal threats from Big Tobacco over plans to introduce standardised packaging for cigarettes, with Japan Tobacco International (Ireland) threatening the government over it immimnent plans.

The tobacco industry has already demonstrated its ability to inflict expensive litigation in Australia, which is fighting tobacco giant Philip Morris over similar restrictions to those planned by the Irish government.

The Australian government has faced a number of separate legal challanges – domestically and internationally.

The World Trade Organisation is expected to rule on a legal challenge against Australia in 2016, according to a statement from Philip Morris.

That will have implications for Ireland, which may also face international challenges. Of more immediate concern to the Irish government is the expected domestic challenge. The tobacco industry has already claimed that standardised packaging tramples over intellectual and other property rights. This is expected to form the basis of its legal challenge.

Barrister James Bridgeman, an international arbitrator who specialises in intellectual property law, said: “There are strong arguments on both sides of this. On the one hand, the Trademarks Act protects the property right in registered trademarks. That is reinforced by Article 43 of the Constitution, which expressly protects the right to private property. On the other hand, the Constitutional right to private property is not absolute and it must be exercised in accordance with social justice and the exigencies of the common good.

Brand Down Under

The Irish government’s attempt at regulating cigarette packaging follows a landmark bill in Australia, which passed in 2012.

The Australian legislation is the strictest in the world, and has become the subject of a major onslaught by tobacco companies desperate to hold on to some vestige of brand control.

In Australia, all packs are a drab brown-green colour, with prominent health warnings and graphic images of carcinogenic doom. Brand names are in tiny lettering that is barely visible without close scrutiny

“Much of this industry is about image. It is not about tobacco,” said Robert Stumberg, a US professor of law who has analysed tobacco regulation and litigation around the world.

The Australian government’s move infuriated tobacco companies like Imperial Tobacco Group, Philip Morris and British American Tobacco, which put forward an array of arguments in response.

They argued that the move violated free speech; encouraged illegal, unregulated sales; expropriated the value of trademarks; and went against international free trade agreements. They also claimed that standardised packaging merely persuades smokers to switch between brands and that advertising does not affect overall consumption.

Anti-smoking groups like Ash (Action on Smoking and Health) have disputed this. They argue that tobacco packaging is the industry’s “silent salesman” – especially as advertising and sponsorship is prohibited in so many countries.

While the Australian government won the initial legal battle in its domestic courts, its legal challenges have not ended there. Philip Morris is suing it for extensive damages, basing its case on Australia’s bilateral investment treaty with Hong Kong. Without its branding, Philip Morris is arguing that “its products will not be readily distinguishable to the consumer from the products of its competitors”.

A number of countries, including Indonesia, Cuba, Ukraine, Honduras and the Dominican Republic, are also challenging Australia’s cigarette packaging legislation at the World Trade Organisation. They argue that Australia’s legislation is a barrier to trade and restricts intellectual property. Some of these challenges are partly financially supported by Big Tobacco.

The battle of David and Goliath

Australia was the first country in the world to introduce such restrictive laws, but Uruguay had already made huge strides. Since 2009, cigarette packages in the South American country must be 80 per cent covered by health warnings, including graphic photos of cancer sufferers.

Uruguay, however, is also facing a major legal challenge.

Philip Morris, whose brands include Marlboro, launched a legal action claiming that the law violated Uruguay’s 1988 bilateral investment treaty with Switzerland, where Philip Morris is headquartered. Philip Morris is demanding $25 million in compensation for damage to its brands. It claims that these damages “are the direct result of Uruguay’s decision to disregard its commitments to investors, and its failure to respect and protect investments in intellectual property in accordance with the treaty”.

Stumberg said expensive litigation was a “key element” in the tobacco industry’s strategy to “create a chilling effect on progressive tobacco measures.

“The industry has a history of litigating theories that will lose just to inflcit pain on the defending country,” he said.

Silvina Echarte Acevedo, the legal advisor leading the Uruguayan case, likened it to David and Goliath. Uruguay’s annual gross domestic product is dwarfed by the $80 billion that Philip Morris took in last year. Uruguay has stated that it would not have been able to fight the legal case if the foundation of Michael Bloomberg, the former mayor of New York, had not provided financial support.

Many nations have been frightened off by Big Tobacco’s wealth and legal muscle. Many developing countries are at a disadvantage as they did not have the resources or special legal expertise to fight.

Even developed countries like Canada and New Zealand have backed away from planned changes in the face of investment treaty claims, although a number of countries are revisiting the idea again. In January, the British government said it would offer MPs a free vote on standardised packaging before May’s general election.

New Zealand, France, Norway and Finland are also considering plain packaging legislation.

Free trade agreements often exempt rules meant to protect public health.

Professor Stumberg and others believe the claims could turn on whether plain packaging rules can be shown to reduce tobacco use. That could also be important in a domestic court case here.

Does plain packaging reduce consumption?

Unsurprisingly, health officials and anti-smoking activists differ from the tobacco industry’s viewpoint when it comes to assessing the impact that plain packaging has on consumption.

The Australian Institute of Health and Welfare, a government body, published a report in July 2014 which found that daily smoking rates had fallen at their fastest pace for two decades between 2010 and 2013. The survey found that young people were delaying taking up the habit, and that the number of cigarettes smoked per week had fallen.

It is difficult to establish a direct causal link to standardised packaging. Smoking has been declining in Australia for more than two decades, and tobacco taxes rose recently.

A study published in the British Medical Journal in 2013 found that smokers who bought plain packs were more likely than branded pack smokers to perceive their cigarettes as of lower quality, and more likely to think about quitting the habit.

Last week, the scientific journal Addiction published a collection of peer-reviewed research papers and reports on standardised packaging, in which the researchers concluded that standardised packs were likely to reduce smoking rates.

What transpires in Ireland will be closely oberved by other countries. If the onslaught in Australia is anything to go by, the battle has barely begun.

Source: Susan Mitchell, Southeast Asia Tobacco Control Alliance (February 24, 2015)

Bangladesh: Pictorial warnings to appear in 1 year, 6 of 7 images disgarded

February 25, 2015

The deadline for implementing pictorial warning on tobacco packets has been increased for two months, and for that the tobacco companies have got one year to implement the pictorial warning on tobacco packets after passing the Tobacco Control Rules, and among the seven types of pictorial warnings now only one will be used, reads a report on the Daily Bhorer Kagoj on February 25, 2015 by Tutul Rahman, an ATMA member and Swapna Chakrabortee. The report reads that the draft over the issue is on finalization stage and although the draft was formulated about two year ago, the pictorial warning could not be enforced yet because of the interference from the tobacco companies. A Health Ministry official, following the report, seeking anonymity said that the deadline extension of implementing pictorial warning on tobacco packets is highly harmful for public health.

The draft tobacco control Rules underwent extensive analysis for several months at the Health and Law Ministry where the tobacco companies have manipulated the Draft after their benefits, and even the Health Minister had met with the representatives of multinational tobacco company which is completely illegal according to the international anti-tobacco treaty FCTC, but the Health Minister, denied the allegation with an excuse that he is able to meet anyone as a public representative, read the report.

Earlier, the tobacco companies appointed different consultant (e.g. printer’s owners association) to advocate them with the excuses that pictorial warning implementation will be delayed as the required machineries will have to be bought from international market, and thus they sought 10 months from the Health Ministry official to implement the pictorial warning.

The report also mentions that the amendments on the tobacco control law are important but could not be enforced for the negligence of the relevant officials. A neighboring country – Pakistan has also implemented the pictorial warning and the tobacco companies in the country are using 40 per cent of the total space of the packets while it will be 85 per cent from March of this year, reads the report. Anti-tobacco experts, after the news, are on the view that implementing pictorial warning on tobacco packets is not a difficult one for Bangladesh and if the frightening images are on the packets, it will be helpful to uphold the negative consequences of tobacco use among the commoners.

The report also says that researchers have found that such pictorial warnings will be able to attract attention of smokers for about 7000 times in average annually that will be helpful to help them giving up smoking.

The detail of the report, including an image of the pictorial warning, is available on the following link:

Kenya to introduce pictorial health warnings

February 12, 2015

Cigarette manufacturers, distributors and importers will not be allowed to put brand names or trademarks on cigarette packages and wrappers starting June this year.

According to the new Tobacco Control Regulations 2014 published by the Ministry of Health on Monday, the cigarette packages will instead carry health warnings and pictograms on the front and back respectively.

“A person shall not manufacture, sell, distribute or import a tobacco product for sale in Kenya, whose package carries a name, brand name, text, trademark or pictorials or any representation or sign which suggest that the tobacco product is less harmful to health rather than other tobacco,” a section of the regulations stated.

The pictogram is required to be printed in full colour, contrasting with the background to ensure noticeability while the health warning messages will be printed in black and white.

The health warning message on the front of the package will be printed in English while the back package will be in Kiswahili.

“The manufacturer, seller, distributor or importer of the tobacco product shall ensure that the health warnings and messages shall be printed on both the wrapper and the packet,” the regulations published by Health Cabinet Secretary James Macharia said.

The cigarette packets will also contain a batch number to determine the place, manufacturing date and country of origin.

“A manufacturer shall, upon request, provide the Cabinet Secretary with information to enable him interpret the code marking on a tobacco product…”

The new regulations build up on the Tobacco Control Act of 2007, requiring manufactures to submit to the Ministry toxicological data on the ingredients and leaf used for the products.

While implementing investment and tax laws and other policies related to tobacco, the Ministry of Health says priority will be to tackle the adverse health, social, economic and environmental impacts of tobacco growing, manufacture, sale and consumption in Kenya.

Meanwhile the Ministry of Agriculture has now been urged to put in place viable economic alternatives for tobacco farmers.

“The Cabinet Secretary for the time being responsible for agriculture shall pursuant to section 13(1) of the Act put in place policies to promote appropriate, economically and viable alternatives for tobacco growers.”

Source: Margaret Wahito, Capital FM Kenya (February 2, 2015)

Pakistan to introduce pictorial warnings that cover 85% of pack

February 12, 2015

Minister for National Health Services, Regulations and Coordination, Saira Afzal Tarar on Wednesday announced that new pictorial warning will cover 85 percent of cigarette packs on both sides in the country.

Addressing a press conference, the minister said that the tobacco companies would start implementing this decision from March 30 and efforts will be made to apply this decision on all cigarettes stock by May 30 in the country.

She said that the government has also decided to further enhance taxes on tobacco items, adding, a concerned committee has been constituted in this regard with participation from WHO and Federal Board of Revenue aimed at stopping tobacco use.

She said that the ministry will announce national health policy within two months. She also announced that the government will soon announce country’s first drugs policy.

She said that Pakistan will be the third country in the world besides Thailand and India to have enhanced pictorial health warning to 85 percent. She added this new large size of pictorial health warning on cigarette packs will encourage smokers to quit smoking.

She said that it is a major stride forward in curbing tobacco use as the size of the warning has also been more than doubled from 40 percent to 85 percent.

She said that the matter of introducing the new enhanced pictorial warning was initiated in 2011. The ministry has started process of consultation with the provinces in 2013 to revive the tobacco control programme and strengthen it.

She said that Pakistan has fulfilled it obligation under Article 11 of the Frame Work convention of Tobacco control and become a world leader for the other countries to follow.

The minister said that tobacco use is a major cause of deaths world-wide and in Pakistan. The world has seen 100 million deaths in the 20th century from tobacco related causes. In Pakistan 100,000 people lose their lives every year from tobacco related diseases, she added.

Pictorial warning on tobacco packs is the most effective means of communication with tobacco users as according to research, a smoker looks at this picture at an average of 7,000 times in a year.

Moreover, those who intend to initiate smoking are discouraged by the warning where as it encourages those to intend to quit smoking. she added.

Under the new measure, cigarette manufactured in the country, sale in the country and imported into the country will be required to have the new pictorial warning on their packs mandatory by March 30, 2015.

The minister added that any manufactures, importer, distributer or retailer who will violate the new law will be dealt according to law. She expressed the hope that all shareholders including the provincial governments will ensure full implementation of the new measure.

Source: Business Recorder (February 11, 2015)

Norway: Government to consult on proposal for plain packaging

February 10, 2015

The Government proposal means that all tobacco products sold in Norway will have standardised packaging. The goal is to prevent tobacco use among children and young people.

We know that young people are influenced by the appearance of tobacco packaging. Packaging may be what makes them try tobacco for the first time, or what deters them from it. No one wants young people to use tobacco, and it’s time to stop the marketing of tobacco products to young people, says Minister of Health and Care Services in Norway Bent Høie.

Smoking remains one of our most significant public health challenges. Every year, about 6600 people in Norway die from diseases caused by smoking. Snus (smokeless tobacco) is also harmful to health and can cause cancer, type 2 diabetes and increased mortality connected to a number of diseases. Snus use during pregnancy increases the risk of premature birth and stillbirth.

Smoking among young people has declined over the past decade, and five percent of 16-24 year olds smoke. We have however seen a sharp increase among young people who use snus in the last decade. One third and just under every fourth young woman use snus. 18 percent of 16-24 year olds use snus daily. Among boys, 23 per cent use snus every day. 12 percent of girls do the same.

The large increase in snus use among youth started after the snus industry began developing products that appeal to young people, including snus boxes with new designs, new colors and flavorings such as vanilla, menthol and licorice. My goal is to prevent children and young people from using tobacco, says Høie.

The Ministry of Health and Care Services will publish a consultation on the proposal to standardise all tobacco packaging and tobacco products at the end of February 2015.

The proposal would standardise all tobacco packaging by specifying mandatory colors (dark/dull green) as well as specifications concerning other package design elements. In addition specified text such as brand and variant name must be standardized, including the color, font, size and location on the package. The manufacturer’s logo and other design elements, such as color, signs or symbols will not be allowed either on the packaging or on the products.

The European Tobacco Products Directive, which comes into force in May 2016, will include implementation of further tobacco control measures. These include larger combined picture and text health warnings to cover 65 % of the front and the back of packages of tobacco products for smoking and larger text health warnings for snus and other smokeless tobacco products.
Standardised tobacco packaging was introduced in Australia in 2012. It is proposed in England, Ireland and New Zealand and is being considered in Finland and France.

Source: Norwegian Government (February 9, 2015)