This week, we have seen yet another example of tobacco industry intimidation tactics being used to stop a government from enacting laws that will save lives and protect the public health.
The Irish government announced that it is introducing plain packaging legislation, following through on its goal of becoming the first country in the European Union to ban branding on cigarette packets.
Immediately, the tobacco industry attacks. Geneva-based multinational company Japan Tobacco International (JTI), owner of the Camel, Mild Seven, Benson & Hedges and Silk Cut brands, has threatened to take the government to court if it doesn’t stop the passage of the legislation.
The general manager of JTI Ireland said that the company has informed the government that “we stand ready to file legal proceedings should it continue pushing for a ‘cut and paste’ policy that has failed in Australia.” And that “plain packaging puts politics before evidence.” Politics before evidence? A failed policy?
The Australian plain packaging policy has stood up to a constitutional law challenge in the highest court, has gained significant public support including among smokers, and is the subject of ongoing studies showing its effectiveness. Just last week, the journal Addiction released a collection of scientific papers suggesting that plain packaging can deter non-smokers from taking up smoking, and may cut down the number of cigarettes smoked by existing smokers. The real-life impacts have also been measured, and show dramatic declines in smoking rates since the measures were introduced.
Though the success of these measures is incredibly encouraging, it makes you wonder why we need so much evidence and data before a democratically elected government can regulate a product that kills 6 million people every year, and in the United States, is the number one preventable cause of death and disease.
No amount of evidence is ever enough for big tobacco
What we’re seeing is that regardless of the ever-increasing evidence and consensus among the non-tobacco funded scientific community, industry will continue to challenge and demand that “governments need to conduct more robust research before considering such a policy” or that “the scientific studies… have failed to produce credible evidence supporting its efficacy.”
Why? Because relentlessly demanding more and more evidence to prove what is already well established is a long-standing industry tactic to delay or prevent effective tobacco control measures from ever being implemented. Moreover, regardless of the evidence, the industry knows that threats of legal action have been effective at dissuading countries to act. And the tobacco companies also know that challenging effective tobacco control measures in court or in international trade tribunals (even when they do not have a chance to win) can delay the implementation of the tobacco control laws even when they are enacted.
The tobacco industry spent AU$14 million (approximately US$13.3 million) in 2011 alone fighting the Australian measures, and British American Tobacco Australia (BATA) itself launched a campaign arguing against the measures on the basis that the Australian government will have to spend millions of taxpayer dollars defending the legislation, and possibly billions more compensating the industry for acquiring their trademarks.
That’s right, the industry itself said the plain packaging law is a bad idea because they would make the Australian taxpayers pay billions of dollars defending it – from them. Much like a school bully helpfully advising their victims that if they complain to the teacher, there’ll be hell to pay.
Unfortunately, they’re right. On top of the domestic legal challenge, Australia is continuing to spend even more money defending World Trade Organization and Investor-State Dispute Settlement challenges, which, as Phillip Morris itself pointed out, can last years.
It’s not hard to see why the body of evidence supporting the tobacco control laws doesn’t matter to relatively poor countries such as Namibia, Togo and Uganda when faced with threats of million dollar tobacco industry lawsuits. Such industry threats to governments have become so common that they drew the attention of satirist John Oliver last week, who ridiculed the threatening and factually incorrect letters received by the governments of some of the poorest countries in the world when they proposed similar tobacco control measures.
Even in the UK, similar proposals have been delayed for years due to threats from industry. The UK government’s initial consultation into plain packaging was bombarded by industry submissions challenging every aspect of the evidence presented by the public health community. The result was a decision to wait for ‘more evidence’, particularly for evidence emerging from the Australian policy. Last month, following another consultation, the UK government finally expressed support for the policy, and said it would try to pass the legislation this year.
Yet again, industry was quick to show outrage and dismiss the ever-increasing evidence, with Phillip Morris describing the measures as “government censorship” that “blindfolds consumers” and is “legally questionable.” Imperial Tobacco also chimed in, saying that “More than two years into the failed plain packaging experiment in Australia there are no meaningful grounds to believe it is achieving its stated objectives. Do we need more scientific research into the health impacts of tobacco? The ridiculous legal costs aside, because of expected industry legal attacks, regulatory agencies worldwide are continuing to spend more and more money and time on scientific studies into tobacco harm and tobacco control. Meanwhile, the death toll from smoking continues to grow.
Even in the US, where the Food and Drug Administration can use tobacco industry user fees to fund research for the public health, it seems slightly absurd that much of the basic science being carried out is still aimed at showing the harms and addictive nature of smoking, or creating more support for regulatory policies such as plain packaging to help withstand challenges from industry. Especially when considering the significant flaws and abuse of statistics in industry-funded research on plain packaging.
How much more time, money and resources will we spend trying to prove the harms of tobacco and the need for regulation? What standards of certainty are we striving for? We have known about the harms since the 1950s, and the addictive nature since the 1960s. We also have strong evidence about what kinds of new restrictions and requirements will save lives and reduce unnecessary smoking-caused disease and suffering. Yet to this day the industry keeps drawing us back into the debate, challenging the existing evidence, demanding more research and more certainty, and thereby stalling new initiatives to reduce the terrible toll from tobacco use, knowing that many countries will give into their demands.
It’s time to step back, not waste any more time developing evidence that is redundant or excessive, and demand that domestic and international courts and tribunals respect each country’s sovereign right to protect the health of their citizens.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.