A wrap of reaction to the High Court decision on plain packaging
Update, 16 Aug: more reaction has been added at the bottom of the post
Today’s High Court finding on plain packaging of cigarettes has provoked an outpouring of public health air punching.
The President of the Australian Council on Smoking and Health, Professor Mike Daube, is quoted in the SMH describing it as ”the global tobacco industry’s worst defeat”.
The SMH also reports that the High Court has awarded costs against the tobacco companies that are estimated to run into hundreds of thousands of dollars.
You can read the High Court statement here (reasons for the decision to be published at a later date), stating that Australia’s world-first plain tobacco packaging legislation is constitutional.
The Court rejected claims by British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris that plain packaging is an ‘acquisition of property’ requiring the payment of compensation to the tobacco industry.
Below is a wrap of reaction to the decision (don’t miss the BATA statement), and towards the bottom of the post is an analysis of the local and global implications from Professor Simon Chapman, first published at The Conversation.
The post concludes with some of the immediate Twitter reaction (for more see #plainpackaging).
1. Wrap of reaction
The director of the McCabe Centre for Law and Cancer, Jonathan Liberman, said the Court’s decision would resound across the world, with plain packaging under consideration in several countries including India, New Zealand and the UK.
The High Court’s decision would embolden other countries to pursue plain packaging in the face of tobacco industry legal threats and challenges.
Mr Liberman said that plain packaging remains the subject of consultations in the World Trade Organisation and a challenge brought by Philip Morris Asia under a bilateral investment agreement between Australia and Hong Kong.
‘The consensus among independent legal experts is that plain packaging will survive challenge in each of these forums, just as it has in the High Court of Australia,” he said.
Quit Victoria Policy Manager Kylie Lindorff said: ”This world-first reform means the next generation of Australians will never be exposed to or deceived by tobacco advertising and that step will go a long way towards ensuring the nation’s youth will not be seduced into taking up this deadly habit,” she said.
Cancer Council Victoria CEO Todd Harper said the landmark decision would provide hope and confidence to other governments around the world who were considering plain packaging including the United Kingdom and New Zealand.
“This world-first legislation has been upheld despite the tobacco industry’s best efforts to overturn it in a bid to recruit a new generation of smokers and future cancer sufferers,” he said.
Mr Harper said today’s decision was proof governments around the world must stand strong in the face of intimidation by litigation from Big Tobacco.
“The tobacco industry will continue to use the legal system to undermine public health policy that protects people from the deadly effects of tobacco,” he said.
Australian Fair Trade and Investment Network responds
Dr Patricia Ranald, Convener of the Australian Fair Trade and Investment Network, welcomed the High Court decision but said the Government still faces two more legal challenges from big tobacco, which is desperate to stop Australia setting an example by implementing the plain packaging recommendations of the World Health Organisation.
“Some trade agreements have clauses which allow foreign investors to sue governments, on the grounds that a law or policy ‘harms’ their investment. The Australian government policy is to oppose these clauses in current and future trade negotiations. However, they do exist in some past trade agreements, and big tobacco is taking full advantage of this,” explained Dr Ranald.
“The Philip Morris tobacco company is currently suing the Australian government over its tobacco plain packaging legislation, using an obscure 1993 Hong Kong- Australia investment treaty. Philip Morris is actually a US-based company, but could not sue under the US-Australia Free Trade Agreement, because public opposition kept this clause out of the agreement. Philip Morris rearranged its assets to become a Hong Kong investor in order to use an obscure treaty. This shows how giant global companies can abuse such clauses in trade agreements,’’ said Dr Ranald.
“Big tobacco is also reportedly providing legal advice and funding to the Ukraine and Honduras Governments which have launched a complaint in the World Trade Organisation (WTO) on the grounds that the Australian legislation is contrary to a WTO intellectual property agreement. WTO complaints must be made by Governments, not companies,” added Dr Ranald.
“Big tobacco and other global corporations are lobbying hard to include the right of foreign investors to sue governments in the current negotiations for a Trans-Pacific Partnership Agreement (TPPA) between the US, Australia, New Zealand and six Asia-Pacific countries,” said Dr Ranald.
A win for developing countries too, says National Heart Foundation of Australia
Dr Lyn Roberts, National CEO of the Heart Foundation, said the decision was a significant milestone in the global fight against the carnage caused by smoking.
“Australia has been a world leader in reducing smoking rates with this innovative legislation – and this win today is a signal across the world that we are on the right track,” Dr Roberts said.
“Many nations, including the UK, New Zealand and India, have been watching this case closely, and many will now seek to implement their own legislation. The win will be most keenly felt in developing countries where smoking rates are especially concerning.
“On this day, we should remember that the tobacco epidemic is one of the biggest public health threats the world has ever faced. It kills nearly six million people a year. Approximately one person dies every six seconds due to tobacco and this accounts for one in 10 adult deaths.
“Up to half of current users will eventually die of a tobacco-related disease. Nearly 80% of the more than one billion smokers worldwide live in low- and middle-income countries, where the burden of tobacco-related illness and death is highest.
“These figures demonstrate the significant global contribution Attorney General (and former Health Minister) Nicola Roxon has made in pursuing these laws against considerable pressure from industry.”
Australian Medicare Local Alliance welcomes “boring, ugly” image for cigarettes
AML Alliance Chair, Dr Arn Sprogis, said the Gillard Government has delivered one of the most controversial and toughest pieces of legislation that has many other countries baulking, until now.
“While we are yet to fully appreciate the High Court’s reasoning behind its decision today, which is due later this year, today’s decision has placed Australia, internationally, as a gutsy nation and the nation to follow when it comes to tobacco control,” Dr Sprogis said.
“By December 1 this year, tobacco companies selling cigarettes in Australia will have to standardise the marketing of their cigarette packs in an ordinary olive-brown colour featuring large graphic health warnings with minimal space for their specific brand name.
“Cigarette packs will be marketed as boring, ugly products that cause harm. In effect the tobacco industry’s marketing power has been stymied significantly.”
BATA press release (PDF alert)
British American Tobacco Australia (BATA) spokesperson Scott McIntyre today said the Tobacco Plain Packaging Act (TPP) was a bad piece of law that would have serious unintended consequences.
He said it would “only benefit organised crime groups which sell illegal tobacco on our streets”, and “will actually increase smoking rates particularly in young people who’ll have greater access to cheap illegal cigarettes”.
He said: “Even though we believe the government has taken our property from us we’ll ensure our products comply with the plain packaging requirements and implementation dates.”
2. What can we expect now?
Simon Chapman writes:
This morning Australia’s High Court dismissed the plain tobacco packaging case brought against the Australian government by the world’s largest tobacco companies. The companies had challenged the government’s new law – due to be fully implemented from December 1 this year.
Reasons for the decision will be published soon. But it is thought that the Court may have released its decision in advance of the detailed reasons because this Friday, British American Tobacco Australasia is due in another court on a related matter. That involves the company’s efforts to obtain documents dating back to the Keating government (1991-1996) under freedom of information laws. The High Court may have considered that the company’s interest in these documents might now be judged a fool’s errand and are giving it a chance to reconsider.
Like the mortally wounded Black Knight fighting on in Monty Python and the Holy Grail, Big Tobacco will now be hoping that, despite losing its right arm and buckets of blood (just flesh wounds), two other cases will see off the scourge of plain packs against all the odds.
Three governments, Ukraine, the Dominican Republic and Honduras have filed complaints with the World Trade Organization against the Australian government’s law. None of these nations have any significant trade of any sort with Australia, let alone in tobacco products.
For all Big Tobacco’s bluster and its success in whistling up sternly worded submissions from a variety of US-based trade associations, it is telling that these three puppets are the heaviest hitters it could convince to run its case with the WTO. China, the United States and Indonesia are all big tobacco manufacturers with major strategic ties to Australia.
But Indonesia and the United States are two countries conspicuous among basket-case nations (such as Somalia, Zimbabwe and Malawi) absent from the 175 countries that are party to the WHO Framework Convention on Tobacco Control. They might have been expected to complain about the precedent that Australia has set. But instead, Big Tobacco’s best team are global minnows. Specialists in global trade law give the challenges little prospect of success.
A third case is being brought by Philip Morris Asia (based in Hong Kong) via a bilateral trade agreement between Australia and Hong Kong signed in 1993. The timeline of this case is fascinating.
On April 29, 2010, the Australian government announced its intention to introduce plain packaging. At the time Philip Morris tobacco products in Australia were manufactured by Philip Morris Australia. On 23 February 2011, Philip Morris Asia purchased Philip Morris Australia and on 27 June, 2011 – a full 14 months after knowing the government intended to introduce plain packs – Philip Morris Asia served its notice of claim to the Australian government.
Imagine someone considering purchasing a property and learning 14 months before the sale that the property would be badly affected by a new freeway being built nearby. Then imagine them going ahead and purchasing the property and then taking the government to court for compensation over damage to their investment. Philip Morris Asia’s case would seem to have the same prospects, quite apart from all the arguments against the idea that a trade treaty should be able to override any government’s sovereignty in public health matters.
What to expect
So what can we expect locally from Big Tobacco? First, we will see dramatic price falls in the retail price of tobacco. Many will think “these [famous name brand] cigarettes are costing me $3 to $4 a pack more than cheap unknown brands in exactly the same packaging except for the small brand name. They taste pretty much the same as cheap brands, so why should I pay out all the extra?”
Tobacco companies today chase the “value market” because they know that total sales volume is steady and the margins on high-end brands is where they profit most. A leaked BATA internal staff development DVD from 2001 explains how the company then needed to sell five packs of budget brands to get the same profit from one premium brand pack. Plain packaging strips the industry of this vital source of revenue while gutting its ability to distract smokers from thinking about what they are buying.
Australia is a tiny market for Big Tobacco, and it may well be willing to treat us in the way as when supermarkets place drastically reduced “loss leader” items on special to get customers into the store. The industry will be so desperate to demonstrate to watching nations that plain packs “don’t work” that it might even be prepared to wear local losses for a year or so.
But the Australian government can simply raise tobacco tax overnight as often as it needs to effectively maintain a floor price for cigarettes that will deter smokers from buying more than they could have afforded previously.
Second, stand by for lots of “independent” reports by tame academics from obscure universities or corporate consultancies, purporting to demonstrate that the new packaging has not affected smoking. The rhetoric will oxygenate ignorant community assumptions that plain packaging was somehow going to dramatically cut smoking across the community overnight. The reality of the historical fall in smoking over the last 40 years is that annual declines have been fractions of 1%, driven by the combined effects of all policies and programs.
Plain packaging may amplify this downward trend, but no one expects it to dramatically increase it among adults who consume 98.2% of all tobacco sold. The main goal of plain packaging has always been to deglamourise smoking among children.
The last significant vestiges of local tobacco advertising ended in 1992. So anyone aged 20 today, has grown up never exposed to domestic tobacco advertising. Today’s smoking rates by youth are the lowest ever recorded. Plain packaging is designed to turbo-charge that decline and make smoking history for future generations. Quick and dirty Big Tobacco surveys months after its introduction will never capture that effect.
• This article was first published at The Conversation
3. From the Twitterverse…
Update, Aug 16: More reaction
Statement by WHO Director-General, Dr Margaret Chan
The World Health Organization (WHO) strongly welcomes the landmark decision from Australia’s High Court to dismiss a legal challenge from the tobacco industry, and calls on the rest of the world to follow Australia’s tough stance on tobacco marketing.
Several major tobacco companies challenged Australia’s legislation to require cigarettes and other tobacco products to be sold in plain packaging without any branding. But the industry’s attempt to derail this effective tobacco control measure failed. As of December 2012, Australia will be the first country to sell cigarettes in drab, olive-green packaging without branding.
With Australia’s victory, public health enters a brave new world of tobacco control. Plain packaging is a highly effective way to counter industry’s ruthless marketing tactics. It is also fully in line with the WHO Framework Convention on Tobacco Control. The lawsuits filed by Big Tobacco look like the death throes of a desperate industry. With so many countries lined up to ride on Australia’s coattails, what we hope to see is a domino effect for the good of public health.
The case is being watched closely by several other countries who are considering similar measures to help fight tobacco.
The evidence on the positive health impact of plain packaging compiled by Australia’s High Court will benefit other countries in their efforts to develop and implement strong tobacco control measures to protect the health of their people and to stand resolute against the advances of the tobacco industry.
Tobacco use is one of the most preventable public health threats. Tobacco products will eventually kill up to half of the people who use them – that means nearly six million people die each year. If governments do not take strong action to limit exposures to tobacco, by 2030 it could kill more than eight million people each year.
The WHO Framework Convention for Tobacco Control entered into force in 2005. Parties are obliged over time to take a number of steps to reduce demand and supply for tobacco products including: protecting people from exposure to tobacco smoke, counteracting illicit trade, banning advertising, promotion and sponsorship, banning sales to minors, putting large health warnings on packages of tobacco, increasing tobacco taxes and creating a national coordinating mechanism for tobacco control. More than 170 countries are Parties to the Convention.
An important legal precedent
Matthew Rimmer, ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University, says the decision will be an important precedent in Australia and the rest of the world, and is also a boost for the World Health Organization and its Framework Convention on Tobacco Control.
He writes at The Conversation: “The High Court ruling will embolden countries – such as the United Kingdom, New Zealand, Norway, India and the United States – contemplating plain packaging of tobacco countries.
AMA President, Dr Steve Hambleton, hailed the decision as a victory for common sense and public health.
Dr Hambleton said that the tobacco industry should accept the Court’s decision and get to work on adhering to the plain packaging legislation.
“The tobacco industry’s complaints have been found to have no reasonable basis. They have tried to delay the introduction of plain packs so they could continue to put profits ahead of the health of millions of people,” Dr Hambleton said.
“The AMA has been a strong supporter of plain packaging and congratulates the Government, particularly Nicola Roxon, on promoting this world leading public health initiative and getting a big win in the High Court.
“We look forward to seeing the plain olive green packs with graphic health warnings appear on shelves as soon as possible to act as a further deterrent to people taking up the killer habit of smoking.
“The AMA hopes that the High Court decision builds momentum around the world for other countries to stand up to Big Tobacco.”
Public Health Association of Australia & Australian Council on Smoking and Health LAIN PACKAGING DECISION A MASSIVE WIN FOR HEALTH
Yesterday’s High Court decision that tobacco plain packaging can proceed is a massive win for public health. It is also the global tobacco industry’s worst defeat yet, and will have global ramifications.
President of the Australian Council on Smoking and Health, Professor Mike Daube (who chaired the Federal Government’s expert committee that recommended plain packaging) said, “This is a massive win for public health – and the worst defeat yet for Big Tobacco. The global tobacco companies have opposed plain packaging more ferociously than any other measure we have seen. They know that plain packaging will have a major impact on smoking here – and that other countries will now follow.”
“The High Court has slammed the door on the tobacco industry’s desperate attempts to oppose a measure they know will reduce their sales and Australia’s tobacco death toll. We know from the companies’ own internal documents that packaging is a crucial part of their marketing. They have now lost their last means of promoting smoking to adults and children. This truly is a life-saving victory for public health.”
“The High Court decision is absolute vindication of the Government’s position. Since we learned about the dangers of smoking, cigarettes have killed one million Australians, in large part because of the activities of the world’s most lethal industry. With advent of plain packaging in December, Australia can look forward to leading the world in becoming smoke-free. ”
CEO of the Public Health Association of Australia, Michael Moore said, “We should celebrate the victory of public health over a toxic industry. Tobacco companies have used every possible trick and mechanism to oppose plain packaging, which will help prevent children from starting to smoke and encourage adults to quit.”
“We can take immense heart from knowing that even the massive resources of a global industry cannot buy government policy or High Court decisions. Yesterday was a great day for public health in Australia, and for the politicians of all parties and coalitions of health groups who worked so hard to make it happen.”
Mr Justin Mohamed, Chair of NACCHO representing over 150 Aboriginal Community Controlled Health Organisations today welcomed the decision of the High Court of Australia to reject the legal challenge by big tobacco companies, but cautioned that changes in packaging would have only minor impact in reducing the current Aboriginal (15 yrs.+) smoking rate of 47% (non Aboriginal rate 15.1%).
“Tobacco smoking is the single greatest preventable cause of premature death amongst Aboriginal people, impacting on the health of individuals and contributing to the devastation of our communities. It accounts for one out of every five (20%) of deaths among Aboriginal Australians and for 17% of the health gap between Aboriginal and non-Aboriginal people.Tobacco-related diseases such as cancer, cardiovascular and respiratory disease account for one third of all deaths’’ Mr Mohamed said.
Mr Mohamed explained it is important to understand that smoking is not a single issue for Aboriginal people but is interwoven with other factors such as poverty, low levels of education, lack of employment opportunities, poor nutrition, disempowerment and stress.
“In many Aboriginal communities where stress is a lived daily reality it is therefore not surprising that smoking rates remain high especially with the unemployed and others on various welfare subsidies and that children are exposed to smoking behavior, “ Mr Mohamed said.
“Our NACCHO Talking about the Smokes (TATS) research partner Menzies School of Health Research recently cautioned that efforts to tackle high smoking rates amongst Aboriginal and Torres people must not add to the stigma often faced by these groups. They stated that Australian’s should blame the industry, not the people who suffer from its products. This High Court decision goes a long way to support this argument.”
“The efforts of hard-working staff across our member services, to address the depth and the complexity of health issues facing our communities, is inspirational but they are battling to Close the Gap within a generation if the governments at all levels do not address the wide range of social issues faced by many Aboriginal Australians.”
In closing Mr Mohamed said NACCHO would especially acknowledge the work of Minister Nicola Roxon who in her former role as Health Minister and her current role as Attorney-General has driven this.
The Australian Health and Hospitals Association (AHHA) today welcomed the decision by the High Court to uphold the Government’s plain tobacco packaging legislation.
“Nicola Roxon and the Government are to be congratulated on this win for public health which ensures that Australia continues to lead the world in tobacco harm reduction policies,” Ms Prue Power AM, AHHA CEO said today.
“One of our great public health success stories of recent decades has been the massive shift in community attitudes towards tobacco use and a consequent reduction in the health and social impact of smoking. While smoking rates are now at historic lows, it is vital that we continue this progress by reducing the capacity of the tobacco industry to market their products, in particular to young people.
“Despite our success in reducing smoking rates, tobacco use is still the single most preventable cause of ill health and death in Australia, according to the Australian Institute of Health and Welfare (AIHW). It contributes to more hospitalisations and deaths each year than alcohol and illicit drug use combined and is a major risk factor for many serious illnesses such as heart disease, stroke and several types of cancer.
“Every year, we lose around 15,500 Australians to tobacco-related conditions and thousands more experience the pain and suffering associated with smoking-related illnesses. These preventable conditions put additional pressure on our already stressed public hospitals and are a significant cost burden on the health system. In fact, tobacco smoking is estimated to cost Australian society around $31.5 billion a year in tangible and intangible costs.
“By upholding the plain packaging legislation, the High Court has sent a clear message to the tobacco industry that Australia does not support the marketing or promotion of tobacco products to young people and others who may be persuaded to take up the habit.
“AHHA welcomes this decision and congratulates the Government on its continued efforts to reduce the harmful effects of tobacco use on the Australian community,” Ms Power said.
• Australia unveils grotesque cigarette labels, reports The Atlantic.
• CBC News is asking Candians whether they’d like to adopt plain packaging.
And (somewhat belatedly), here is the joint statement from Nicola Roxon and Tanya Plibersek
The Hon Nicola Roxon MP
Minister for Emergency Management
The Hon Tanya Plibersek MP
Minister for Health
The Gillard Government today welcomed the decision of the High Court of Australia to reject the legal challenge by big tobacco against Australia’s world-leading plain packaging of tobacco laws.
This is a victory for all those families who have lost someone to a tobacco related illness. For anyone who has ever lost someone, this is for you.
No longer when a smoker pulls out a packet of cigarettes will that packet be a mobile billboard.
This decision is a relief for every parent who worries about their child picking up this deadly and addictive habit.
The Government recognises the importance of good health and we know that preventative health measures work.
Plain packaging is a vital preventative public health measure, which removes the last way for big tobacco to promote its deadly products. Over the past two decades, more than 24 different studies have backed plain packaging, and now it will finally become a reality.
Plain packaging will restrict tobacco industry logos, brand imagery, colours and promotional text appearing on packs. Brand and product names will be in a standard colour, position and standard font size and style.
All tobacco products sold in Australia must be in plain packaging by 1 December 2012.
Big tobacco threw everything they could to try to stop this reform.
But, the highest Australian court has upheld an Australian law to protect Australians from the harm of smoking.
Tobacco companies should now stop trying to stymie this reform internationally and get on with implementing this important change.
This is a watershed moment for tobacco control around the world. Australia’s actions are being closely watched by governments around the world, including by Norway, Uruguay, UK, EU, NZ, France, South Africa and China. Other countries might now consider their next steps.
The message to the rest of the world is big tobacco can be taken on and beaten. Without brave governments willing to take the fight up to big tobacco, they’d still have us believing that tobacco is neither harmful nor addictive.
Today should be a clarion call to every country grappling with the costs and harm of tobacco and hopefully encourage them to take the next tobacco control steps appropriate for them.
A fact sheet about plain packaging of tobacco and information about tobacco use in Australia is attached.
Facts about plain packaging of tobacco
The Australian Government’s world first legislation to require all tobacco to be sold in plain packaging received the Royal Assent on 1 December 2011.
The Tobacco Plain Packaging Act 2011 requires that all tobacco products for retail sale in Australia are in plain packaging by 1 December 2012.
The legislation restricts the use of logos, brand imagery, symbols, other images, colours and promotional text on tobacco products and tobacco product packaging. The packaging must be a standard drab dark brown colour in matt finish.
The only thing on the packs to distinguish one brand from another will be the brand and variant name in a standard colour, position, font size and style.
The legislation is consistent with the obligations and recommendations of the World Health Organization Framework Convention on Tobacco Control.
Plain packaging is a crucial part of the Australian Government’s comprehensive suite of tobacco control measures. The Government’s range of initiatives to reduce smoking and its harmful effects include:
- an increase in the tobacco excise of 25 per cent in April 2010;
- legislation and regulations to restrict internet advertising of tobacco products in Australia;
- more than $85 million in anti-smoking social marketing campaigns, including $27.8 million for campaigns targeted at high-risk and highly disadvantaged groups who are hard to reach through mainstream campaigns; $5 million in additional support for the Quitline (131 848) in 2010;
- extended listings of nicotine replacement therapies and other smoking cessation supports on the Pharmaceutical Benefits Scheme;
- record levels of support for Indigenous communities to reduce smoking rates, through the Indigenous Tobacco Control Initiative and the COAG closing the Gap in Indigenous Health Outcomes National Partnership Agreement;
- a reduction in the duty free allowance for tobacco products from 250g to 50g per person, from 1 September 2012;
- stronger penalties for people convicted of tobacco smuggling offences; and
- the tobacco plain packaging measure.
The Government is committed to reaching the performance benchmarks set under the COAG National Healthcare Agreement of reducing the national smoking rate to 10 per cent of the population by 2018 and halving the Aboriginal and Torres Strait Islander smoking rate.
Cigarettes are toxic and poisonous, containing more than 4,000 chemicals.
An estimated 15,000 Australians die every year from tobacco related diseases. Tobacco consumption remains one of the leading causes of preventable death and disease in Australia.
In 2010, approximately 3.3 million Australians still smoked, which is equivalent to about 15.1% of Australians aged 14 years and over. This is down from 30.5% in 1988.
The social and economic costs of smoking in Australia are estimated to be $31.5 billion annually.
Indigenous smoking rates remain high.
Approximately 47% of adult Indigenous Australians smoke.
Smoking causes about 20% of Indigenous deaths.
Further information about plain packaging is available from the Your Health website:
And a graphic reminder of what it’s all about….