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).
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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.
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A plus for international public health efforts
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.
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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.
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The AMA’s response is here http://ama.com.au/media/plain-packaging-challenge-runs-out-puff
by John Flannery on Aug 15, 2012 at 2:51 pm
The High Court has violated my Freedom of choice and my Constitution.
This Government is stripping our Freedom. Well when the big war comes and its coming, you go and fight it without me because I conscientiously object to everything you say and do.
No Guns, No Camping, No Fire, No Hunting, No Fishing, No Smoking, No Drinking, No Protests, No Freedom, No Jobs, No Free Speech, No Life.
by Dingoes Breakfast on Aug 15, 2012 at 4:55 pm
I haven’t seen any good evidence or convincing arguments to support the claims being made about the impact of this measure. My view is that it is largely symbolic and will have little or no impact on usage and the consequent health impact of smoking. I appreciate that symbolics are important and agree that this measure may go some way towards creating an environment that discourages smoking among some groups but feel that the time, resources and political capital that have been expended on this could have been put to better use.
by Jennifer Doggett on Aug 15, 2012 at 4:57 pm
Of course plain packaging will cut back on smoking. What’s the proof? The Tobacco industry’s reaction for a start. I have no sympathy for Big Tobacco – they have been knowingly marketing addictive poison to minors for at least 40 years. Have you ever heard of an adult non-smoker taking up the habit. They use the packaging as their last allowable glossy advertising to recruit new smokers, to discourage those already hooked from giving up and to recapture those who have managed to quit. Smoking is a dying industry in more ways than one. The Tobacco industry should give up and concentrate on servicing their remaining customers as the industry winds down over the next few decades.
by Steve777 on Aug 15, 2012 at 5:12 pm
I agree with many of your comments, Steve777, and have no sympathy for Big Tobacco either. But I don’t agree that its reaction to plain packaging provides any evidence for the impact of this measure on uptake among minors. I’ll be very happy to be proved wrong though!
by Jennifer Doggett on Aug 15, 2012 at 7:13 pm
I believe that tobacco is still legal, Dingoes Breakfast, it just doesn’t have fancy graphics associated with its cigarette packets. You’re still free to choose, you just have to remember the name of the brand you smoke.
by Holden Back on Aug 16, 2012 at 12:57 pm
I admit to having some sympathy with Jennifer’s views and have been especially interested to see how it was argued in the light of requirements at the State/Territory level to end the display of tobacco products at the retail point of sale. I am aware of studies (or perhaps I am remembering tobacco industry admissions?) indicating that the pack image provides constant reinforcement for the smoker whenever the pack is taken out and handled.
As an aside, it seems to me that plain packaging is orimarily a fundamental matter of consumer protection — ie, there is no justification for attractive packaging or any form of marketing, for that matter, of a product that kills when used as intended — and the fact that it hasn’t been strongly promoted as such is a striking reminder of Australia’s lack of a consumer movement.
In terms of assessing the impact of reducing the visibility of attractive pack images, I suppose you could consider the point of sale prohibition as Step 1 and the plain packs as Step 2. Have there been any studies attempting to gauge the impact of Step 1?
by Margo on Aug 17, 2012 at 3:33 pm
Is it inevitable that tobacco consumption in Australia will move to total prohibition?
If we continue down the path we are on it seems inevitable. I am a Cigar smoker. You may think…same evil…and you’re probably correct. So how is plain paper packaging going to affect me.
Well. I simply will not be able to buy Cigars in Australia after the plain paper packaging comes in. Really…I hear you say. Aren’t they all the same? What’s the big deal? Why should you care?
Cigars are very much like wine. There are 1000′s of types/ styles/ sizes and prices and all have different taste / feel / enjoyment. When they remove all identification how will I know what I am buying? Oh sure…I’ll be able to buy a big one…or a small one but that’s no good. This is exactly what is going to happen to my beloved Cigar. Buyers like me will no longer be able to differentiate between the various brands / tobacco growing regions etc. Cuban vs Nicaraguan vs Ecuadorian and retailers will be left with little to sell other than a stick of tobacco that they can’t even tell me what it is!
To put this into perspective imagine what would happen to the wine industry if all Brands / labels / identification of any sort was removed from wine bottles. You would be left with a choice of a red or white bottle and no way of telling a good red from a shit red or even a chardonnay from a Riesling. Would retailers of wine really be able to survive under these conditions? I doubt it. I very much doubt that the Cigar retailers left will be able to survive under these new laws either. Some of you won’t care if tobacco is totally banned but in a democratic state you should care.
For me I feel like the state has now moved from a “protecting innocent bystanders from smokers” phase with legislation like banning smoking in public places etc (which given the knowledge we have about the dangers of smoking and passive smoking I actually applaud, because it is not my right to affect others health through my actions) onto the banning or prohibition phase with this plain paper packaging phase. This phase now directly affects my choice…in exactly the same way as it would effect the choice of a wine drinker were they to ban all wine packaging.
Why should you care. Well history shows, and I have seen it already in the many forums, opinions etc that the healthcare lobbyists will, once tobacco is banned, move onto other choice items such as alcohol, fatty foods etc (anything that the medical people can statistically demonstrate is bad for us – which is a lot!). Should we ban all negative health activities? Are you really going to sit there and tell me that you would be happy if the govt legislated against alcohol….or fatty foods….or sugar…or all of everything that we already know is bad for us? Should we really give them that right?
Through this legislation they have distinctly moved from a taxing and informing us of the dangers (and protecting Joe public) to actively prohibiting the sale of smoking products and thereby severely limiting personal choice. I fear, and you should too, that they will not stop at tobacco and if no one stands up and says “No, you can’t interfere with my personal choice” they may move to curtail or limit our personal choice in any number of arenas simply because they believe it is in our best interests to do so.
I’m going to miss being able to select what type of Cigar I choose to smoke every evening or so. Lets hope you won’t be saying that too in your lifetime if you’re a wine drinker.
Ben
by Ben1968 on Sep 15, 2012 at 2:27 pm