11.10 Packaging as promotion

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By Michelle Scollo and Dr Becky Freeman, updated October 2012

This section explores the concept of packaging as a promotional tool (11.10.1) and describes recent trends in the packaging of cigarettes and other tobacco products (11.10.2 and 11.10.3). It summarises the history of plain packaging as a policy response (11.10.4). It briefly outlines research that suggests that plain packaging would increase the effectiveness of health warnings, reduce false health beliefs about cigarettes, and reduce brand appeal especially among youth and young adults (11.10.5). Subsection 11.10.6 describes the response to Australia's legislation mandating plain packaging and Subsection 11.10.7 discusses the main arguments against the legislation. Sub sections 11.10.8 to 11.10.10 set out major milestones in adoption of the legislation, legal challenges and international flow-on effects. Section 11.10.11 briefly describes initial responses by Australian tobacco companies observed during the implementation period to attempt to mitigate the impact of plain packaging legislation.

11.10.1 The pack as a promotional tool

Packaging 'act(s) as a promotional tool in its own right.'
Palmer A. The product. In Palmer, AJ, eds, In: Principles of marketing. 2000 1 p215

 

'The package, sometimes referred to as the 'silent salesman', makes the final sales pitch, seals the commitment and gets itself placed in the shopping trolley.'
Underwood and Ozanne Journal of Marketing Communication 1998 2 p208

'… if you smoke, a cigarette pack is one of the few things you use regularly that makes a statement about you. A cigarette pack is the only thing you take out of your pocket 20 times a day and lay out for everyone to see. That's a lot different than buying your soap powder in generic packaging.'
Brown and Williamson employee 3 p5

The concept of a mix of marketing functions was conceived by Professor Neil Borden of the Harvard Business School. Perhaps the best known definition of this mix is that proposed by McCarthy who talked of the 'four Ps' of marketing.4 In the later years of the 20th century packaging increasingly has been regarded as a fifth 'P' in the marketing mix.5 Packaging differentiates brands, being particularly important in homogenous consumer products such as cigarettes.6 i It can also help to increase the appeal of the product. Colours and typeface have long been known to elicit particular responses in consumers, often shaped by strong social and cultural forces. Imagery and symbols also exert powerful effects, linking desirable attributes with particular brands. The world's most popular cigarette brand, Marlboro,7 can readily be identified through its iconic red chevron. Sociologically, a symbol acts as a stimulus eliciting a particular response based on people's understanding of meaning (see Jefkins, 1987, p298 8). The heraldic coat of arms on Benson and Hedges packs for instance is an abstract wordless symbol that imparts notions of status and attested quality.

With the advertising of tobacco increasingly banned in more and more forms throughout the world, the pack has fast become the most important promotional vehicle for reaching potential and current smokers.9–15

The Government of Norway introduced what was the world's most comprehensive ban on advertising in 1975, and yet a qualitative study conducted in 2003 of young adult Norwegian smokers aged 18–23 (born five to ten years after the ban came into place) highlights how tobacco products continue to be marketed to this demographic group through persuasive cigarette pack design. The study showed how cigarette brands and cigarette package designs give meaning to personal characteristics, to social identity and to positions in hierarchies of status. In the young smokers' accounts, brands appeared to add 'an extra dimension to the social meaning of smoking in their daily life'.16

More recently several nations have banned the open display of tobacco products in retail locations. These jurisdictions have reasoned:

'Power walls and counter top displays are highly visible and eye-catching. They present an unavoidable and unfortunate spill of promotional imagery and product reminders to vulnerable consumers including young people, former smokers … and smokers of all ages who are trying to quit'.
Health Canada Tobacco Control Programme, 2006 17 p8

With removal of point of sale as an opportunity for promotion Philip Morris has predicted that, in the future, pack design alone will drive brand imagery.18 Unless governments impose further restrictions on packaging, bans on the retail display of tobacco will encourage a further shift in industry investment towards innovative pack design, with the pack functioning as one of the last remaining vehicles for product promotion.

A long-term panel study by Moodie and Hastings19 found that packaging has been a very strong theme in the tobacco trade press and that smokers have been particularly attentive to value-based packaging.

Pack design doesn't just communicate the 'personality' of a cigarette brand to the smoker... it also allows smokers to project these characteristics to others when they handle and display the package throughout their daily routines.15 Just as designer clothing, accessories and cars serve as social cues to style, status, values and character, so too can cigarette packs signify a range of attributes about users. As 'badge products', cigarettes can reinforce the characteristics conjured by brand image.3,15,20–23 This behaviour not only affects the single consumer but also exerts a powerful effect on their friends, associates and even casual contacts. Consumer theory and research has demonstrated that incidental consumer brand encounters (ICBEs) powerfully affect buying patterns in ways in which the consumer is not fully aware. A series of four studies by Ferraro, Bettmand and Chartrand published in the Journal for Consumer Research in 2008 for instance found that repeated exposure to simulated ICBEs:

'increases choice of the focal brand among people not aware of the brand exposure, that perceptual fluency underlies these effects and these effects are moderated by perceivers automatic responses to the type of user observed with the brand.'
Ferraro et al, Journal of Consumer Research 2008 24 p729

Hoek et al 25 describe the marketing literature concerning brands and the importance of brand imagery for young people in the process of shaping their public persona in the world. This process of identity creation allows tobacco manufacturers to sell status, social acceptance, glamour and adventure. Young people can use cigarettes to help convey these attributes as part of a social persona they wish to convey to their peers.16

Individuals who place a great deal of significance on the visual aesthetics of design—Bloch, Brunel and Arnold26 refer to this as the 'centrality of visual product aesthetics' (CVPA)—tend to be the people who set the trends in fashion, architecture and consumer goods. Branding and pack design would appear to be particularly important to young people.

'...young smokers in particular are packaging and design literate'.
Market researchers for Silk Cut brand Haslam Drury Partnership27

Unique among industries, the tobacco industry has long claimed that it has no interest in attracting new customers (i.e. non-smokers) but is interested only in stimulating brand-switching and in maintaining brand loyalty in current customers.28 However internal industry documents candidly acknowledge the vital importance of attracting new (predominantly young) smokers.29–34 Young smokers are important to the long-term viability of the tobacco industry:

'Brands must have high penetration among young adult smokers, as success in this segment confirms a brand's image as 'younger' and ensures longer-term usage of the brand by those consumers.'
Lambat Tobacco Reporter, February 20077

11.10.2 Packaging to increase product appeal

In the early 1900s before the advent of television, collectable cigarette cards were a major form of in-pack promotion.35 In the latter decades of the 20th century tobacco companies recognised very quickly that greater attention would need to be paid to packaging in an environment where advertising was becoming increasingly restricted.36

'In a future where increasingly the product may have to sell itself through the pack, a fuller understanding of the way in which perception of such packs affects perception of their contents is desirable ... imagery powerfully and measurably modifies the perceived smoking characteristics of the cigarettes associated with it. Further research is intended to determine both underlying bases of pack image influence (e .g . colour, pattern, etc .) and levels of responsiveness within the consumer population to the influence of imagery.'
Ferris, British American Tobacco, 198036

Internal industry documents confirm that companies invested significant research effort into pack design in order to communicate specific messages to specific demographic groups, including young people.15,29,37 In the early 1990s a presenter addressing marketing staff at Philip Morris remarked that smokers:

' ... are ready for change' and 'once exposed to innovative {packaging} especially young adults see their current packaging as dated and boring.'
Anon, 1992, Philip Morris document collection38 p2

The presenter went on to encourage…

'Packs aimed at younger women should be 'slick, sleek, flashy, glittery, shiny, silky, bold.'
Anon, 1992, Philip Morris document collection38 p9

The tobacco industry trade magazine, World Tobacco, contains numerous examples of frank appeals to manufacturers to utilise packaging as an advertising vehicle.12–14,39–42 Tobacco manufacturers are advised:

'if your brand can no longer shout from billboards, let alone from the cinema screen or the pages of a glossy magazine … it can at least court smokers from the retailer's shelf, or from wherever it is placed by those already wed to it.'
Eindhoven, World Tobacco 199910 p17

One packaging firm urged tobacco companies to skirt 'Draconian legislation' by using pack over-wrapping to create an in-store advertisement:

'Where cigarette advertising is banned by law' says the company, 'the retailer can 'quite coincidentally' stack up a kind of billboard using the products at the point of sale if, for example, the cigarette cartons of a particular brand bear different parts of an overall design, which complete a puzzle or a caption when stacked up.'
Anon, World Tobacco 2006 43 p38

Advances in printing technology enabled printing of on-pack imagery on the inner frame card,44 outer film and tear tape,42 and the incorporation of holograms, collectable art, metallic finishes,43 multi-fold stickers,13 photographs, and retro images in pack design. 45,46,47 One manufacturer commented in the trade press that:

'With the uptake of printed inner frame cards what we will increasingly see is the pack being viewed as a total opportunity for communications—from printed outer film and tear tape through to the inner frame and inner bundle. Each pack component will provide an integrated function as part of a carefully planned brand or information communications campaign.'
Mawditt, World Tobacco 2006 44 p37

Moodie and Hastings19,48 and Ford, Moodie and Hastings5 in a comprehensive report for the Centre for Tobacco Control Research at the University of Stirling49 document numerous changes in packaging evident in the British market following the introduction of legislation that banned print and outdoor advertising, promotion and sponsorship. Packaging strategies include:

  • value-based packaging
  • image-based packaging
  • novel or 'innovation' packaging
  • 'green' or environmentally sustainable packaging.

Examples of each form of packaging drawn from these papers are described below together with a number of Australian examples.

11.10.2.1 Value-based packaging

Value-based packaging has included:

  • selling products in smaller pack sizes
  • selling products in pack sizes larger than the traditional 20 cigarette and 12.5 grams of tobacco
  • revamping packaging of brands traditionally seen as 'value'
  • simple designs which communicate 'value-for-money'
  • price-marking (printing the price on the brand) to imply a 'special' low price.

Selling products in smaller pack sizes

In the United Kingdom, Imperial Tobacco has packaged small classic filter cigars in packs of five for £1.39 (The Grocer, 2002).19 Various brands of cigarettes have been marketed in packs of 14 (for instance Camel in 2006 and Benson and Hedges featuring the number '14' in Lego-style packaging).

In Australia, the traditionally conservative John Player Premium brand (sold in Australian in packs of 35s and later 30s) was revamped and re-launched as John Player Special in packs of 25s in 2009. In late 2011, the brand was extended to JPS Superkings sold in packs of 20s.

Selling products in pack sizes larger than the traditional 20 cigarettes and 12.5 g of smoking tobacco

In the United Kingdom 'supersizing' has included Royals 24s and Golden Virginia and Amber Leaf smoking tobacco in packs of 25 and 50 grams.

In Australia, in addition to the 30s, 35s, 40s and 50s that have been on the market for several decades—refer Chapter 13, Section 13.3—packs have recently come onto the market as 22s (Holiday 22s in February 2012) and 26s (Bond Street 26s, February 2012).50

Revamping packaging of brands traditionally seen as 'value'

In the United Kingdom, examples include redesign of Gallaher's Mayfair brand and British American Tobacco's Royals and Windsor Blue with a new silver logo in January 2006.

In Australia, Longbeach, traditionally a value brand, introduced a more elegant looking Slims (first noted on price lists) in February 2010.51

Figure 11.10.1.jpg

Figure 11.10.1
Philip Morris Australia's Longbeach Slims

Source: Quit Victoria 2010

Simple designs which communicate 'value-for-money'

In the United Kingdom, the Royal brand was simplified in May 2006.

In Australia, the simple packaging of Philip Morris Choice cigarettes (introduced in 2006) supports its image as a 'value' brand and the simple red packaging and name 'Deal' encapsulates the 'value' message for the Coles home brand.

 

Figure 11.10.2.JPG

Figure 11.10.2
Deal cigarettes, imported from Germany by Coles as a 'home brand' 52

Source: Quit Victoria 2012

 

Figure 11.10.3

Figure 11.10.3
British brand, Royals, with bonus 4 cigarettes, and price-marked John Player Specials

Source: Moodie and Hastings48

Price-marking (printing the price on the brand) to imply a 'special' low price

Price-marking has not been observed in Australia, but in the United Kingdom it has included Basic Superkings in 2005, John Player Specials and King Edward Coronets in 2006 and Golden Virginia smoking tobacco in 2008.19

11.10.2.2 Image-based packaging

Image-based marketing has included design of packs to appeal to various segments of the market, in particular younger and female smokers.

Companies in both the United Kingdom and Australia redesigned the livery of many brands between 2004 and 2010. Moodie and Hastings have compiled extensive materials highlighting changes in brands documented in the British advertising trade press over that period.19 Gallaher's Silk Cut released a new Slims variant in eye-catching packaging which featured an embossed Silk Cut logo in the brand's trademark purple. In March 2005 The Grocer magazine noted that Hamlet's new Smooth variant heralded 'a new era' of packaging design. In June 2006 The Convenience Store magazine noted the introduction of new pack design in the Richmond cigarette range. Shortly afterwards Imperial Tobacco unveiled a new pack design for Embassy No 1, replacing the traditional red and maroon stripe with a figure 'One'. The Forecourt Trader reported in August 2008 that two of Imperial Tobacco's top brands, Windsor Blue and Golden Virginia were to be redesigned, Windsor Blue with a more vibrant blue colour and silver lettering to suggest premium status, and Golden Virginia in a new metallic pack. In October 2008 also in the United Kingdom, The Forecourt Trader reported that Benson and Hedges was to feature five different gold-themed designs—Gold Disc, Gold Standard, Gold Mine, Gold Rush and Gold Credit Card. In the same month, Off Licence News reported that Camel packaging was to add an embossed logo and refreshed imagery to appeal to 'style conscious adult smokers in urban areas'.19

In January 2009, The Grocer reported that Gallahar was 'tweaking' the design of Benson & Hedges Gold and Silver in the United Kingdom. The redesigned brands featured a modernised typeface and logo. And the brands' red seal was replaced with a new triangle design.19 In Australia subtle changes to cigarette packs and trademarks were also observed on Benson & Hedges packs as early as 2002.53 When researchers called the company to enquire about the changes, an employee said they were 'playing with the logo because we can't do any advertising any more' (p154).53

One of the most striking examples of package re-design is that of Dunhill. In June 2005 in the United Kingdom, The Grocer magazine reported that a new Dunhill logo had been created and that the royal coat of arms had been simplified and reduced in size.54 According to the article, Dunhills' rebranding included a new look and taste aimed at 20–35 year old smokers. The packaging was designed to give a modern aspirational image.19, 54

British American Tobacco Australia also experimented extensively with packaging for Dunhill in Australia since 2006. Over the years, conservative packaging for Dunhill was replaced with a slick, contemporary metallic range of packs similar to the material used in ultra-modern consumer goods such as I-pods.

 

Figure 11.10.4a.jpg

Figure 11.10.4a
Original style Dunhill cigarettes compared with updated metallic Dunhill packs, purchased Australia 2010

Source: Simon Chapman collection and Quit Victoria

 

Figure 11.10.4b.jpg

Figure 11.10.4b
Updated metallic Dunhill packs, full set, purchased Australia 2010

Source: Quit Victoria

An exceptionally small pack containing 20 small cigarettes, Dunhill Essence, came onto the market in Australia in early 2007. Resembling a slim-line package of scent and containing super-slim cigarettes, the brand appeared to be targeted at young females. This brand extension remained on price lists until January 2012.50

 

Figure 11.10.5.jpg Figure 11.10.5b.JPG

Figure 11.10.5
Dunhill packs, Premier Red (left) compared with Dunhill Essence Red, purchased 2010 and Dunhill Essence Red in packs and in tins (right)

Source: Quit Victoria

New package formats and collectable series with special packaging apparently aimed at a more youthful market were vigorously promoted to retailers—see Figures 11.10. 12 and 11.10.13 below.

Targeting younger and female smokers

Several other brands sold in Australia are quite clearly designed to appeal to young female smokers—tall, slim packets of Vogue Superslims by British American Tobacco and Davidoff with its elegantly bevelled edge sold by Imperial Tobacco, both imported from Germany, being notable examples.

 

Figure 11.10.6.JPG

Figure 11.10.6
Female brands Davidoff, Vogue Superslims and Dunhill Essence

Source: Quit Victoria, August 2011

Other brands would seem to appeal to an even younger female market. Trojan Tobacco Company's DJ Mix Special Feel Strawberry (pictured at the bottom right below), Lemon Fresh and Ice Green Apple appeared in the Australian Retail Tobacconist price lists between August 2005 and January 2012.50 Peel Menthol Orange flavoured cigarettes (top left) appeared between August 2005 and January 2009. Sobranie brightly coloured novelty cocktail cigarettes (each cigarette a different colour) appeared on price lists in February 2007 and was still listed in July 2012.55 Red Fortune Bamboo manufactured by Imperial Tobacco with its 'Asian chic' package design was introduced early in 2011.56

 

Figure 11.10.7.JPG

Figure 11.10.7
Novelty brands Trojan Tobacco's Peel Menthol Orange and DJ Mix and Sobranie Cocktail cigarettes; Imperial Tobacco's Davidoff (top right) and Red Fortune Bamboo (bottom left)

Source: Quit Victoria August 2011

11.10.2.3 Novel packaging (sometimes called gimmick packaging)

As cited by Ford, Moodie and Hastings:5

'Jugger (1999) argues that the best way to obtain competitive advantage in an overloaded consumer goods market is through innovation in packaging. Innovative packaging is thought to change perceptions and create new market positions (Rundh 2005) and represents a shift in focus from graphic design towards the structural design of packaging (van den Beg-Weitzel and van de Larr, 2006)'
Ford, Moodie and Hastings, 20125 p 341

Moodie and Hasting19 and Ford, Moodie and Hastings5 outline numerous innovations in packaging design:

  • Novel ways of opening the pack
  • Novel shaped and sized packs
  • Novel pack materials
  • Themed packs to encourage collection of sets.

Novel ways of opening the pack

British trade magazine, Convenience Store reported in 2006 that Benson and Hedges had introduced a silver pack which replaced the conventional flip top box with a pack that slid open horizontally, to which manufacturer Gallahar later attributed a 46.5% increase in sales of that brand.5 In the same month, The Forecourt Trader reported that Golden Virginia smoking tobacco had been launched in 14 gram cigarette-style box packs, each containing two individually wrapped blocks of tobacco. The design allowed the box to hold rolling papers, filter tips and lighter once one of the blocks was removed.

British American Tobacco Australia introduced split Dunhill packs in October 2006.57 The pack could be split along a perforated line to create two mini packs, easily shared between two smokers perhaps unable to afford a full pack (Figure 11.10.8). Once split, one of the two packs did not bear the mandatory graphic health warning. British American Tobacco Australia was forced to remove the packets from the market when it was found to be in breach of tobacco product labelling laws.58 It also marketed a range with spring-loaded lids with internal pop-ups as well as double-sided cases.

 

Figure Dunhill Open pack

Figure 11.10.8
Split package of Dunhill cigarettes

Source: ASH Australia, 2006

A study by Borland, Savvas, Sharkie and Moore conducted in Australia in 201159 found significant differences between packs of different shapes on attractiveness, perceived quality and distraction from graphic health warnings. Standard packs were ranked less attractive and of lower quality than bevelled and rounded packs. Standard packs were less distracting to health warnings and pack openings were perceived as different on quality of cigarettes contained and extent of distraction to warnings. The standard flip-top was rated significantly lower in distracting from warnings than all other openings.

Novel pack materials

Convenience Store reported in September 2006 that Amber Leaf tobacco would be available in the United Kingdom in retro-style tins. Special edition Lambert & Butler tobacco has also been sold in tins.19

In February 2006, one month prior to the adoption of picture-based warnings on tobacco packages in Australia, Peter Stuyvesant cigarettes were being sold in 'trendy retro-style tins' which, unlike soft packets of cigarettes with on-pack printed warnings, had health warning stickers that were easily peeled off (p151)60 (Figure 11.10.9). Retailers reported that the tins were very popular with younger smokers.

 

Figure Peeloff StuyvSticker

Figure 11.10.9
Peter Stuyvesant cigarettes packed in a tin container with a removable warning

Source: ASH Australia, 2006

 

Figure 11.10.10.JPG

Figure 11.10.10
Peter Stuyvesant without the label, and Winfield and Dunhill Essence , also sold in tins

Source: Quit Victoria

Novel pack shapes and sizes

Convenience Store reported in March 2007 that British brand Silk Cut Graphite would be sold in a pack with a silver bevel edge designed to give a masculine appeal. The Grocer in November 2008 introduced a limited edition pack in a hexagonal shape.19 Later Silk Cut was released in textured packaging as a 'touch' pack (Off Licence News 2010 cited in Ford, Hastings and Moodie).5

Production of limited edition series

In the United Kingdom, images of motor car racing on limited edition packs of Marlboro were noted in June 2005.5 The Sovereign brand was produced in a series of 'Cityscapes' themed designs in 2009. In May 2006 Camel Art packs featured an eye-catching art-deco design attempting to emphasise the style and quality of the brand.61 In May 2008, Off Licence News reported that Lambert & Butler had produced a special edition holographic pack to mark 10 years as one of the leading cigarette brands in the United Kingdom.62 In January 2009, The Forcourt Trader reported that Golden Virginia smoking tobacco was being sold in a series of limited-edition 14 gram packs featuring eight different leaf designs.63

Winfield experimented with limited edition packs in Australia with its 'blokey' series in 2004, then again with its summer series in 2010.

Dunhill also experimented with limited edition series such as the Signature series, and the My Mixture collectable set.

 

Figure 11.10.11.jpg Figure 11.10.11b.jpg

Figure 11.10.11
Winfield limited edition series, 2004 and circa 2010

Source: Quit Victoria, 2010

 

Figure 11.10.12.jpg Figure 11.10.12b.JPG

Figure 11.10.12
Dunhill Signature series and My Mixture series

Source: Quit Victoria, 2009

 

Figure 11.10.13.jpg Figure 11.10.13b.jpg

Figure 11.10.13
Dunhill My Mixture series

Source: Quit Victoria, 2009

In India in 2012, Imperial Tobacco Company introduced collector packs for the Flake brand featuring artwork by prominent artist Paresh Maity.64

 

Figure 11.10.14.jpg

Figure 11.10.14
Collector packs with artwork by Paresh Maity, produced by Imperial Tobacco Company in India in 2012

Source: Reproduced with the kind permission of the Business Standard, India

11.10.2.4 Green environmentally friendly packaging

Ford, Moodie and Hastings document a number of cases of sustainable packaging, for instance use of papers from plantation forests.5 In the United Kingdom, Rizla rolling papers are certified by the Forest Stewardship Council (FSC), with the scheme's logo marked on packaging.ii 5

11.10.3 Package design to distract from consumer information

Packaging design can distract from consumer information in at least two ways: first by communicating information about harm other than that prescribed by legislation, and secondly by distracting from health warnings.

11.10.3.1 Packaging that conveys varying levels of harm

The descriptive terms 'light' and 'mild' were removed from packs in Australia in 2005 following settlement of legal action concerning misleading advertising by tobacco companies initiated by the Australian Competition and Consumer Commission—see Chapter 16, Section 16.2.1. The industry responded by developing colour-coded packages with new terms:

'Now your Horizon customers can get their favourite brand in an exciting new look pack. With new descriptors and clearer numbers all our packs are much easier to identify. Research proves that your customers will find the new pack more appealing and a lot easier to recognize'.
King and Borland 2005,65 p214 citing Imperial Tobacco Australia advertisement in the Australian Retail Tobacconist66

 

Figure 11.10.15.JPG Figure 11.10.15b.JPG

Figure 11.10.15
British American Tobacco's Winfield 25s and Philip Morris Australia's Peter Jackson 30s in full range of variants, 2010

Source: Quit Victoria, 2011

11.10.3.2 Overshadowing or camouflaging health warnings

International packaging manufacturers and designers remained optimistic about opportunities to increase the appeal of cigarette packs despite the intrusive health warnings starting to be introduced in many countries from the early 2000s—see Chapter 12A1 Health warnings, Section 12A1.2.

In January 2006, packaging consultant Christian Rommel wrote in the World Tobacco magazine of several possible approaches to dealing with the 'eyesore that is the death notice'... 'First, to ignore it, second to conceal it, third, to caricature it.' With regard to the first option, he writes:

'... in order to produce an attractive counterpoint to the omnipresent and gloomy warning statements, designers dig deep into the refinement box. Working with elaborate blind or imprinted laminations, special neon, metallic or fluorescent colourings, pearlescent print underneath or overprinting, iridescent laminations, haptically appealing serigraphy, three-dimensional holograms, solid-coloured papers or even cuttings.'
Rommel, World Tobacco January 2006 14 p 17

With regard to the second option Rommel describes concealing the pack through 'labels or carton covers in the necessary size, colour format and design' or by offering for sale refillable 'plastic, aluminium or leather cigarettes cases for an extra charge.' 14 p17

Regarding the third option—caricature—Rommel states:

Is it even acceptable to make fun of the health warnings? Is it politically correct to ridicule them? Is it allowed to make persiflage of these warnings which with respect to human health are absolutely justified? Obviously the act of smoking involves playing with fire, but do we really need to utilize this fact in the package design? On the other hand, why not?'
Rommel, World Tobacco January 2006 14 p 17

Rommel's proposed solution to the problem of the health warnings is to 'actively engage with its limitations'.

'The motto could read:"Do not exclude but incorporate." The health warnings could be used as elements within the design. Instead of desperately trying to ignore or conceal them, it could be an entirely novel approach to engage creatively with them.'

 

'It might even be the case that the force of government legislation will bring about an entirely new breed of fascinating cigarettes packages that might once again be worth collecting.'
Rommel, World Tobacco January 2006 14 p 18

The package design of many major brands in Australia changed subtly in typeface, colour or design in or shortly after 2006, following the introduction of graphic health warnings taking up 30% of the front of cigarette packs—see Chapter 12A.1 Health warnings.

 

Figure 11.10.16.JPG

Figure 11.10.16
Winfield Extra Mild, later known as Winfield Blues (top selling brand in Australia), purchased Carlton Melbourne Australia circa 1993, 2008 and July 2012

Source: Cancer Council Victoria collection

In line with Rommel's proposition, several brands included slogans on packaging which appeared to flout the idea of reducing risks to health, for instance the inclusion of the 'Force No Friend; Fear No Foe' motto on the side of Winfield packs newly designed in 2010. The motto 'I Force No Friend; I Fear No Foe' previously appeared in earlier pack designs (in packs bearing the 1996-style warnings) in very small lettering underneath the Winfield crest.

 

Figure 11.10.17.JPG Figure 11.10.17a

Figure 11.10.17
'Force No Friend, Fear No Foe' motto printed underneath the Winfield crest in the 1996 pack design, and more prominently on the side of the pack in this Winfield Blue, purchased July 2012

Source: Quit Victoria collection

11.10.4 Plain packaging as a solution to the misleading and promotional power of packaging

The idea of plain packaging was first conceived in Canada in the late 1980s during a legal challenge to Canadian legislation banning tobacco advertising. Tobacco control advocates were struck by testimony of an Imperial Tobacco executive who agreed during questioning that smokers were generally unable to discriminate between brands when blind-tested and that packaging was vital.67

'It's very difficult for people to discriminate blind-tested. Put it in a package and put a name on it, then it has a lot of product characteristics'.
Aubin, British American Tobacco 1989 67 p1

This corroborated an earlier comment by a British American Tobacco official that:

' ... one of every two smokers is not able to distinguish in blind (masked) tests between similar cigarettes … for most smokers and the decisive group of new, younger smokers, the consumer's choice is dictated more by psychological, image factors than by relatively minor differences in smoking characteristics.'
British American Tobacco 1978 68 p5

Proposals for plain packaging were put to governments on several occasions over the following two decades.

In its comprehensive review of the impact of tobacco promotion on tobacco use, the Department of Health's Toxic Substances Board recommended in 1989 that cigarettes be sold in New Zealand in white packs with simple black text and no colours or logos.69 New Zealand health advocates in 199069 noted that restrictions in tobacco advertising would only be partly successful as the 'pack itself is a powerful form of advertising'.69

In Australia in 1992, the Centre for Behavioural Research in Cancer recommended on the basis of its findings about the impact of packaging on the effectiveness of warnings that 'regulations be extended to cover the colours, design and wording of the entire exterior of the pack' (p18).70 In 1995, Canadians Cunningham and Kyle argued for the plain, 'generic' packaging of tobacco products, stressing that the pack was a key promotional vehicle and as such should be subject to the same controls that apply to all forms of tobacco advertising.71

Plain packaging was advocated by several New Zealand public health specialists in 2008.72 In 2008, the Australian national Preventative Health Taskforce included recommendations for plain packaging in its draft discussion paper outlining a range of possible measures to make Australia the healthiest country in the world by 2020.73,74 The proposal was included in the strategy released in 2009.75 Late in 2009, in an editorial concerning one of the numerous studies published between 2008 and 2011–see Section 11.10.5–Moodie and Hastings76 called for the introduction of plain packs of identical shape, method of opening, base colour, devoid of 'all' promotional items.

At their meeting 17–22 November 2008, Parties to the Framework Convention on Tobacco Control adopted guidelines on advertising and package labelling that recommend the use of plain packaging.77

Commentators suggested that plain packaging would require the removal of all brand imagery from cigarette packs, permitting manufacturers to only print the brand name in a mandated size, font and place, in addition to health warnings and other legally required product information such as toxic constituents, tax-paid seals, or package contents.71 The size and shape of the package would also need to be regulated in order to outlaw novelty pack shapes. All Australian states and territories already prohibit sale of single cigarettes and mandate the minimum number of cigarettes in a pack (20 cigarettes), reasoning that small packs, being less expensive, are more attractive to youth. Advocates argued that plain packaging should encompass pack interiors and the cigarette itself, given the demonstrated potential for manufacturers to use colours, bandings and markings and different length and gauges to make cigarettes more 'interesting' and appealing. Legislation to mandate plain packaging that covered all aspects of cigarette and pack design would, advocates argued, effectively standardise the appearance of all cigarette packages and cigarettes, greatly reducing the status-signalling roles and appeal of cigarettes.78

11.10.5 Predicted effects of plain packaging

As plain packaging has never before been legislated prior to 2011, evidence about the possible impact had been necessarily derived from experimental studies where subjects were typically presented with both branded and mocked-up plain packs and asked about associations and preferences.

In 1995, an expert panel provided to the Canadian Department of Health a comprehensive review of the likely effects of plain packaging entitled When Packages Can't Speak: Possible Impacts of Plain and Generic Packaging of Tobacco Products.79

To that time, four studies had been conducted on plain packaging of cigarettes:

  • the so-called Marlboro study (Trachtenberg, 1987)80
  • the New Zealand study (Beede and Lawson, 1991and 199281, 82; Beede et. al., 199083)
  • the Australian study (Centre for Behavioral Research in Cancer, 1992)84 and
  • the University of Toronto study (Centre for Health Promotion, 1993).85

The expert panel found that all four studies produced some evidence to support the hypothesis that plain and generic packaging made cigarettes less attractive and appealing. No comparable study providing contrary evidence was known to exist.79

The research objectives of the Canadian expert panel were:

  • to assess the potential impact of plain and generic packaging of cigarettes on the likelihood of smoking uptake
  • to assess the potential impact of plain and generic packaging of cigarettes on the recognition and recall of health warning messages on cigarette packages
  • to assess the potential impact of plain and generic packaging of cigarettes on the likelihood of cessation of smoking
  • to evaluate alternative designs for plain and generic packaging of cigarettes in terms of their potential impact on the uptake or cessation of smoking
  • to project possible industry responses to plain and generic packaging by examining historical evidence and theory of competition regarding the actions of companies in industries characterized by increasing commoditisation.

To tackle these five overall objectives, the expert panel conceived, conducted and analysed findings of a battery of six different studies employing five methodological approaches.79

Study Method
1) National Survey of Adolescents Survey - direct questioning / within-subject design
2) Word Image Survey Survey - direct questioning / within-subject design
3) Visual Image Experiment Experiment - direct questioning / within and between-subject design
4) Recall and Recognition Experiment Experiment - direct questioning / between-subject design
5) Conjoint Experiment Experiment - indirect questioning / within-subject design
6) Analysis of Industry Effects Analysis of precedents of industry competitive and strategy activities in commodity industries

The national survey of adolescents demonstrated that teenagers were highly aware of cigarette brands. Around 90% were able to recognise the two major Canadian brands even when brand names were removed from packaging, with experimenters on average able to recognise 2.9 brands and regular/frequent smokers 5.9 brands. For all brands, 'package approaches' were the first thing mentioned by the majority of respondents who correctly identified the brand as methods by which companies promoted awareness of brands. While teenagers rarely admit to the likelihood of promotional strategies affecting them, a surprisingly large proportion reported that having cigarettes available only in plain packaging would bother them a lot (23.8%). Many respondents believed that having cigarettes available only in plain and generic packages would have an effect on the number of teenagers who would start smoking. More than one third (35.8%) believed that a few less would start smoking and 13.5% believed that a lot fewer would start smoking. Almost forty per cent (38.2%) believed that plain packaging would prompt more teenagers to stop smoking.79

The word image survey aimed to assess the associations teenagers made about products and about smokers through comparing the packaging of a popular and less well-known brand to plain packaging. The current, branded packaging was associated with a more positive image than the plain white packaging. The researchers concluded that while plain packaging would not reduce the ability of teenagers to use cigarettes to convey an image of being a teen smoker, packaging cigarettes in plain and generic packages would reduce the abilities of brands to differentiate themselves from each other and therefore the ability to link personal image with the brand. To the extent that teens attempt to use a particular cigarette brand as a badge of their own self-image, a particular brand would become a less useful instrument.79,86

The visual image experiment indicated that teens are much less likely to associate specific brands with specific personal characteristics when packs are plain, and even less so when plain packs also featured a photo of a lung.79 The researchers conclude that:

Denuding cigarette packages of major elements of their brand markings (other than their name) appears to limit teenagers' capacity to associate specific images with specific brands. Under these circumstances, these brands lose their badge value and self-defining characteristics. When these characteristics represent key motivators in teenagers' decisions to smoke, then it seems reasonable to conclude that plain and generic packaging can be a useful strategy in attempting to demarket cigarettes to teenagers because it would make it more difficult to build or maintain brand equity.
Canadian Expert panel report 79 Section 6.3.4, p 101

The recall experiment found that at least one warning, 'Smoking can kill you,' was better remembered when it was on the plain package where the rest of the package had fewer 'competing' messages. The teens favourite brand, du Maurier, was recalled less when it was in a plain package as opposed to the familiar red package.

Conjoint analysis is a multivariate technique used specifically to understand how consumers develop preferences for products and services based on the simple premise that consumers evaluate the utility of a product or service idea (real or hypothetical) by combining the separate amounts of utility provided by each attribute. While price was found to be the most important contributor to decisions about smoking, researchers concluded that plain packaging would also influence decisions about uptake of smoking and quitting.

On the basis of a detailed analysis of the findings of all five of these studies—see chart 1, pages 152–5—, the expert panel concluded:

Virtually all the findings of these five studies converge on the following conclusions: Plain and generic packaging of tobacco products (all other things being equal), through its impact on image formation and retention, recall and recognition, knowledge, and consumer attitudes and perceived utilities, would likely depress the incidence of smoking uptake by non-smoking teens, and increase the incidence of smoking cessation by teen and adult smokers. This impact would vary across the population. The extent of change in incidence is impossible to assess except through field experiments conducted over time.
Canadian Expert Panel report 79 p158

Since the Canadian expert review, further research has been conducted in Canada,87–91 Australia,92–96 the United Kingdom, 49,97–102 New Zealand25,103,104 France105 and Norway.106 This research has focussed on the effects of plain packaging on awareness, recall and impact of health warnings,82,84,90,104 on perceptions of riskiness of tobacco products,91,98 and of the appeal of brands and products.25,81,83,87,92–94,101,103,105

In a review of evidence on the effects of plain packaging conducted up to 2009, Hammond concluded:107

Tobacco packaging and labeling policies have emerged as prominent and cost-effective tobacco control measures. Although packaging policies have primarily focused on health warnings, there is growing recognition of the importance of packaging as a marketing tool for the tobacco industry. The current paper reviews evidence on the potential impact of standardizing the color and design of tobacco packages—so called 'plain' packaging. The evidence indicates three primary benefits of plain packaging: increasing the effectiveness of health warnings, reducing false health beliefs about cigarettes, and reducing brand appeal especially among youth and young adults. Overall, the research to date suggests that 'plain' packaging regulations would be an effective tobacco control measure, particularly in jurisdictions with comprehensive restrictions on other forms of marketing.
Hammond, 2010 107 pS226

A systematic review of the literature including all of the studies above published up to 2011 and including a number of unpublished manuscripts (not cited here) was published in 2012 to assist the British government with consultation on its proposal to introduce standardised packaging in the United Kingdom.108 The literature review analyses the findings of 37 studies in detail and provides a full technical commentary on the strength of the evidence for plain packaging.

Findings of some of the major studies are described below.

11.10.5.1 Effects of plain packaging on effectiveness of health warnings

Plain packaging research shows consistently that pack brand imagery distracts from and therefore reduces the impact of health warnings. Students have an enhanced ability to recall health warnings on plain packs.82,90 Health warnings on plain packs are seen as being more serious than the same warnings on branded packs, suggesting that brand imagery diffuses the overall impact of health warnings.89 A multi-country survey examining the effectiveness of warnings showed that smokers in Canada, who were at the time of the study exposed to large, picture-based warnings, were significantly more likely to report thinking about the health risks of smoking, to stop themselves from having a cigarette, and to think about quitting because of the health warnings.109 The same study also showed that the larger and more prominent a health warning, the more likely it was to be recalled. Plain packaging would free up more space on the pack that could be used for larger health warnings and other consumer health information.

An eye-tracking study by Munafo and colleagues found that among non-smokers and non-daily cigarette smokers, plain packaging appeared to increase visual attention towards health warning information and away from brand information.99 Research commissioned by the Australian Government Department of Health and Ageing to assist with specification of design of plain packaging also detected greater attention to health warnings with increasingly plainer packaging.110

11.10.5.2 Effects of plain packaging on perceptions of harmfulness

Unregulated package colouring and imagery contributes to consumer misperceptions that 'light and mild' brands are safer.15,18,91,111 The colour of the pack is also associated with perceptions of risk and brand appeal. Compared with Marlboro packs with a red logo, Marlboro packs with a gold logo were rated as a lower health risk by 53% and easier to quit by 31% of adult smokers in a British study.98 Researchers concluded that removing colours from packs (plain packaging), as well as terms such as 'smooth' 'gold' and 'silver' would significantly reduce false beliefs and increase compliance with existing legislation. In an on-line study of young adults aged 10–17 years in the United Kingdom, lighter coloured packs were typically viewed as the 'least harmful'.101 In another on-line survey involving 947 16- to 19-year-old female subjects in the United Kingdom, participants were randomised to view 10 cigarette packs designed according to one of four experimental conditions: fully branded female packs, the same packs without descriptor words, the same packs without brand imagery or descriptors ('plain' packs), and branded non-female brands. Plain packs were associated with fewer false beliefs about health risks compared with branded packs. Removing brand descriptors from packs significantly reduced measures of appeal and taste, particularly for brands with flavour descriptors, such as 'cherry' and 'vanilla'.102

Research conducted for the Australian Government96 indicated that plain packs in the darker candidate colours being tested were perceived as being harder to quit and more harmful to health than branded packs, particularly those currently in lighter colours.

11.10.5.3 Effects of plain packaging on appeal of products

The appeal of tobacco products can be understood in terms of the appeal of the pack, perceptions about the sensory appeal of the product (in terms of taste, smoothness etc) and the types or characteristics of people likely to use particular brands.

An Australian study published in 2008 involving more than 800 adult smokers examined the effects on the appeal of tobacco products when progressively reducing the amount of pack branding design information. As illustrated in Figure 11.10.18, the plainest packs were seen as less attractive (brand/pack characteristic), smokers of the packs were seen as significantly less stylish and sociable (smoker characteristic) and the cigarettes in the packs were thought to be less satisfying and of lower quality (sensory perception).93

 

Figure 11.10.18

Figure 11.10.18
Level of attractiveness of increasingly plainer tobacco packaging

Source: Wakefield et al 200893

A similarly designed study involving adolescents published in 2009 found that progressively removing brand elements such as colour, branded fonts and non-health warning or brand imagery from cigarette packs, resulted in adolescent smokers seeing packs as less appealing, having more negative expectations of cigarette taste and rating attributes of a typical smoker of the pack less positively.94

A Canadian study published online in 2011 examined the effects of removal of brand imagery on young female smokers aged 18–25 years.112 Participants were asked to view female-oriented brands as currently packaged; images of the same packs with brand names but without descriptors; the same brand without brand imagery or descriptors in plain white colouring; and fully branded non-female brands. They were then asked to rate each pack for appeal, taste, health risks and tar levels. The highest-rated female pack, Capri Cherry, was rated 'more appealing than other brands' by almost 67% of participants. The researchers found that removing descriptors and colours from packs substantially reduced the appeal of female-oriented brands for female smokers: for example, the appeal of Capri Cherry fell from 67% to 17% among women who viewed plain packs without the word 'Cherry'. Plain packs were also associated with significantly fewer positive characteristics than fully branded packs, including glamour, being slim, popular, attractive and sophisticated.112

Of particular note, young women in the plain pack condition were significantly less likely to believe that smoking helps people stay slim compared to participants in the no descriptors condition (ß= –0.31, p= 0.03).

Table 11.10.1
Pack ratings of appeal, taste, tar level and health risk for individual packs (n=512)

 

'A little' or 'a lot' more appealing than other brands (percentage agreement)

Standard

66.7a

66.0a

60.3a

60.3a

55.3a

47.5

38.3

27.7

No descriptors

64.0b

52.0a

56.8

49.6a

46.0b

35.2

31.5

29.6

Plain

16.5ab

14.8a

44.3a

14.8a

19.7ab

36.9

31.7

21.3

'A little' or 'a lot' better taste than other brands (percentage agreement)

Standard

58.2a

58.9a

22.7

17.0

31.9a

24.8

9.9

10.0

No descriptors

26.4a

28a

31.2

20.8

23.4

25.8

12.9

17.7

Plain

8.2a

5.7a

19.4

12.3

15.6a

23.4

9.0

14.5

'A little' or 'a lot' less tar than other brands (percentage agreement)

Standard

9.2

9.9

14.9

3.5

16.3

14.9

14.9

3.6

No descriptors

17.6a

12.1

20.0a

8.0

18.4

16.8

8.8

7.2

Plain

7.4a

9.9

10.7a

9.0

12.4

13.9

13.1

5.7

'A little' or 'a lot' less health risk than other brands (percentage agreement)

Standard

5.7

5.0

5.0a

2.1

7.8

7.1

7.1

0.7

No descriptors

12.8a

8.8

14.4ab

5.6

9.6

9.6

5.6

7.2

Plain

3.3a

4.1

6.6b

6.6

4.1

8.2

8.2

4.1

Note: Letters are used to indicate statistical significance between values in the same column. Values with the same letter are significantly different at the p<0.05 level.

Source: Doxey and Hammond, Tobacco Control 2011112

A small naturalistic pilot study in Glasgow in Scotland (n=18) in which smokers used their own cigarettes in brown plain packs constructed by the researchers found that in comparison with branded packaging, plain packaging increased negative perceptions and feelings about the pack and about smoking.100

' Plain packaging also increased avoidant behaviour (hiding the pack, covering the pack), certain smoking cessation behaviours, such as smoking less around others and forgoing cigarettes, and thinking about quitting. Almost half (n=8) of those in the post-study interview, predominantly women (n=6), reported that the use of plain packs had either increased avoidant behaviour or reduced consumption.'
Moodie et al, 2011100 p 367

A study of adult smokers and non-smokers in France using computer-assisted personal interviewing found that plain packs were less likely than regular packs and particularly limited edition packs (with novel designs or innovations) to be considered attractive, attention grabbing and likely to motivate youth purchase. 105 Plain packs were also rated as the most effective in convincing non-smokers not to start and smokers to reduce consumption and quit.

More than half of the young people in an on-line study of British teenagers aged 10–17 years indicated that product packaging was an 'important' or 'very important' influence in young people's choice of cigarettes.101 Narrow perfume style packs and slide packs that opened from the side were noted as particularly attractive. Plain packs were rated as unattractive by more than 90 per cent of participants. More than two-thirds agreed that the users of plain packs could be described as 'unfashionable' or 'old'.

The research study conducted for the Australian Government to guide the development of plain packaging legislation96 indicated that plain packs in the darker candidate colours being tested were perceived as containing cigarettes of lower quality and ones that smokers would be less likely to consider smoking (Study 4).96

In a series of focus groups exploring brand symbolism and social identity among young adult smokers in New Zealand, Hoek et al25 used thematic analysis of transcript data to explore how plain packaging would affect the symbolic status of cigarette brands. They concluded that replacing branding with larger health warnings weakened the social benefits that brands conferred on users. Plain packaging undermined the aspirational connotations of cigarette brands by breaking the connection between the brand and desirable social attributes and admired social groups.25

Hammond et al's on-line study of young female smokers published in 2012102 found that plain packs were significantly less likely than fully or partially branded products to be associated with positive images, such as glamour, sophistication, and slimness. Most importantly, 'respondents were significantly less likely to accept a pack of cigarettes when offered only plain versus branded packs'. 102 p1

11.10.5.4 Combined effect of plain packaging and health warnings on product appeal

Might it be possible to reduce product appeal without resorting to plain packaging, just by increasing the size of the health warning?

A New Zealand study published in Tobacco Control in 2010103 examined the combined effects of health warnings and plain packaging on the appeal of tobacco products. Packs with the greatest number of branding elements were still preferred even with a 50% warning but were less likely to be chosen with a 75% warning. Plain packs with 75% health warnings were significantly more likely to elicit cessation-linked behaviours than were branded packs with the current 30% front-of-pack warnings.

Is there any advantage in requiring health warnings larger than 75% of the front of the pack?

An Australian study funded by the National Health and Medical Research Council, results of which were presented at the 2011 meeting of the Society for Research in Tobacco and Nicotine and later published in the journal Addiction, further examined the impact of plain packaging and health warnings on pack appeal95.95 Consistent with previous research,93 plain packaging was found to decrease taste expectations and the positive image of brands and increase the negative aspects of brand image, and reduce purchase intention. While larger health warnings have been found to be more noticeable, memorable and likely to elicit cessation-related attitudes and behaviours—refer Section A12.1—, this study found that removing the colour and design features of packaging was more effective than increasing health warnings in reducing the appeal of brands. Once packs were plain, increasing the size of health warnings beyond a certain point (from 75 to 90%) did not further reduce brand appeal.

11.10.6 Australian announcement of plain packaging legislation

On 29 April 2010, in what was heralded as a new benchmark in global leadership for tobacco control,113 the Australian Government announced that it would be developing legislation to introduce mandatory plain packaging of tobacco products in 2012.114 The announcement was part of the Government's response to the National Preventative Health Taskforce which recommended a range of initiatives to reduce tobacco smoking, under 11 key action areas. Recommendation 5.2.1 called for the Government to end promotion of tobacco products through package design.75 It also followed consideration by the Senate Community Affairs Committee of a private member's bill to mandate plain packaging brought forward by Senator Steve Fielding.115

The Australian Government's response to the national Preventative Health Taskforce recommendations114 specified that the intent of the legislation, would be to:

  • increase the noticeability, recall and impact of health warning messages
  • reduce the ability of packaging to mislead consumers to believe that some products may be less harmful than others
  • reduce the attractiveness of the tobacco product, for both adults and children
  • reduce the appeal and desirability of smoking generally.

On 7 April 2011, the Australian Government released a consultation paper116 and draft exposure legislation117 prior to introduction of the bill in the Australian Parliament on 6 July 2011.118 Extensive research was undertaken to determine the optimal specifications for packaging and warnings.110

11.10.6.1 Health sector response to proposed legislation

The Australian Government's announcement about its intention to introduce plain packaging received overwhelming support from the health sector, with spokespeople describing the announcement as 'the most important national development in tobacco control since tobacco advertising was banned in the '90s119 and commenting that it was 'difficult to exaggerate the importance' of such reforms.113,120

11.10.6.2 Financial market response

While health groups and experts praised the move, financial markets appeared to view the legislation as a big risk for industry profitability. Investment bank Citigroup, immediately issued a statement expressing the view that plain packaging was the 'biggest regulatory threat to the industry, as packaging is the most important way tobacco companies have to communicate with the consumer and differentiate their products.'121

11.10.6.3 Response from retail groups

During the Australian federal election campaign in August 2010 a newly formed retail sector organisation, the Alliance of Australian Retailers, launched a counter mass-media campaign with the goal of stopping the plain packaging legislation.122 Advertisements featuring portrayals of concerned retailers saying that plain packaging would not work and would damage their business appeared nationally in newspapers, on television and radio.iii

 

Figure 11.10.19a.jpg Figure 11.10.19b.jpg Figure 11.10.19c.jpg

Figure 11.10.19
Advertisements placed by the Alliance of Australian Retailers in Melbourne Age and other Australian newspapers, 20 April to early May 2011

Days after the launch of the campaign, major retailers withdrew their support. The Australian Association of Convenience Stores (AACS) withdrew its support after being forced to do so by the national grocery retailer, Coles. Coles, which chairs the board of the AACS, forced the board to withdraw the retail group and its members, including Caltex, Shell and BP, from the campaign, after being misled on the nature of the advertisements.123 Woolworths revoked its membership to the AACS over the campaign and demanded that its $15 000 in annual fees be returned.124

Health groups responded to the media campaign by placing a national newspaper advertisement of their own (Figure 11.10.20) and filing a complaint to the Australian Competition and Consumer Commission based on the misleading nature of the Alliance of Australian Retailers advertisements.125 Despite the media campaign, the Australian Government remained firmly committed to the policy.

On the 30 August 2010, the Alliance of Australian Retailers' website appeared to have been hacked. As reported by Crikey, the Alliance website was changed to read:

'In the interest of public health and aligning with society's values, we have decided to end this campaign. All Australian Retailers operate in mixed communities, and we believe the greater good of the non-smoking majority is worth more than that of the smoking minority.

 

'Current smokers will continue to smoke regardless of packaging. We refuse to give incentive to those that don't smoke in any form whatsoever—thus we have ended our campaign against plain packaging.' 126

On 10 September 2010, Australian Broadcasting Corporation television program Lateline revealed, using leaked internal documents, e-mails and contracts, the full extent of tobacco industry influence on the Alliance of Australian Retailers campaign. 127 On the day the alliance was formed it received funds from Imperial Tobacco Australia ($1 million), British American Tobacco Australia ($2.2 million) and Philip Morris ($2.1 million). It was further revealed that in May, before the formation of the alliance, Philip Morris' Australian corporate affairs manager, Chris Argent, was seeking advice from the lobbying and public relations firm, the Civic Group. Philip Morris was seeking advice and assistance for a campaign to stop plain packaging laws during the federal election.

 

Figure 11.10.20.jpg

Figure 11.10.20
Advertisement in The Australian run by the Public Health Association of Australia, VicHealth, the Heart Foundation, the Australian Council on Smoking and Health, Cancer Council Australia and Action on Smoking and Health

The Victorian Health Promotion Foundation (VicHealth) and the Public Health Association of Australia responded to the revelations by calling on the Australian Government to legislate for complete bans on all tobacco industry advertising and to force tobacco companies to release full details of lobbying, political donations and marketing plans and budgets.128

A survey of 2 101 Victorians released in March 2011 found that the Alliance of Australian Retailers campaign failed to persuade people that plain packaging would not be effective, with 86.2% saying that it made no difference to their views about plain packaging and 8.4% of respondents claiming that the advertisement increased their support.129

11.10.6.4 Direct response by tobacco companies

Imperial Tobacco Australia

Imperial Tobacco Australia stated at the time of the Government's announcement that it would 'make every effort to protect its brands and associated intellectual property and including, if necessary, take legal action',130 and repeated this position on the release of the draft legislation.

Imperial Tobacco, whose brands include Gauloises, said it would 'robustly challenge' the move, which it described as 'disproportionate and misguided'.

'Plain packaging has not been introduced in any country in the world and there is no evidence to support the government's claim that this will reduce smoking,' the company said in a statement.'131

Philip Morris International

Presumably in anticipation of the legislation, Philip Morris International launched an entire website dedicated to plain packagingiv months prior to the announcement. The website featured video interviews with retailers from Australia and the United Kingdom, an animated clip on why plain packaging will fail, and pages promoting the views that plain packaging will not work, violates trademark rights and will increase illicit trade. In response to the release of draft legislation, Chris Argent, a spokesman for Philip Morris told AAP that plain packaging would fuel the illicit trade in tobacco products:

'We'll continue to oppose plain packaging in every way possible because of those serious issues that the government hasn't taken into account when pursuing this policy.'
Chris Argent, Philip Morris 2010 131

British American Tobacco

British American Tobacco's London-based website also included a position statement on plain packaging.132 In addition to arguing that the measure would not be effective, British American Tobacco claimed:

'Generic packaging would make it harder to prevent smuggled and counterfeit products entering a market, eroding government tax revenue and disrupting efforts to tackle the illegal trade in tobacco products that plays a significant role in funding international crime and terrorism.'
British American Tobacco website 132

In response to the Government's release of the exposure bill, British American Tobacco Australasia spokesperson Scott McIntyre stated that such legislation would result in claims for compensation that would be borne by taxpayers.133

Further details on industry reaction

For a list of media appearances and lobbying activities by tobacco industry representatives related to plain packaging, see timeline prepared by ASH Australia and the University of Sydney at http://tobacco.health.usyd.edu.au/plain-packaging-in-australia/

Extracts below:

14 June 2011: Story about the US Coalition the 'Emergency Committee for American Trade' on why they oppose plain packs (Dr Cal Cohen) ABC TV.

 

11 July 2011: Story about tobacco companies recruiting retailers to call politicians.

2 Sept 2011: Philip Morris using FOI laws to acquire information from researchers in the United Kingdom.

14 Oct 2011: BATA threatens to suspend supply of cigarettes if Australian implementation date not changed.

11 March 2012: London Economics consultancy publishes 'The role of packaging imagery on consumer preferences for experience goods: A consumer behavioural experiment' funded by Philip Morris. Suggests that 'packaging imagery is a source of information that helps consumers differentiate between alternative product characteristics'.

11.10.6.5 Extensive requests for information under Freedom of Information legislation

On 21 October 2010, Australian Greens health spokesperson Senator Rachel Siewert revealed that the Senate Estimates Community Affairs Committee had been informed that an unnamed tobacco company had made at least 19 requests through Freedom of Information provisions for information about government deliberations on plain packaging going back to 1992.134 The then Minister for Health and Ageing the Hon Nicola Roxon MP later confirmed extensive requests by all three companies.135 Between April 2010 and February 2012, the Department of Health and Ageing dealt with 64 Freedom of Information requests. The cost of processing 10 requests from British American Tobacco Australia was estimated at $643 000. v 135

11.10.7 Analysis of major industry arguments against plain packaging

Industry arguments against the introduction of plain packaging have included firstly that there is a lack of evidence that plain packaging would result in reduced smoking; secondly that it would be difficult and time-consuming for retailers in small convenience outlets, resulting in errors and delays in serving likely to result in loss of sales to supermarkets and other outlets able to sell at discounted rates; thirdly that such legislation would breach international agreements concerning intellectual property; and finally that it would facilitate illicit trade.

Health groups argue that the harmfulness and addictiveness of tobacco products is sufficient to warrant restriction of all forms of promotion and that packaging is clearly a form of promotion and therefore should not be allowed. Counter-arguments to each of the industry arguments are outlined below.

11.10.7.1 Won't work

As indicated in Section 11.10.3, plain packaging has not yet been implemented anywhere in the world, so conclusions about its likely effectiveness have to be based on knowledge about the effects of packaging in general, and studies testing the reactions of respondents exposed to different packaging options under experimental conditions. There are strong grounds for believing that current packaging glamourises smoking and that plain packaging would improve the effectiveness of health warnings, reduce misconceptions about relative harmfulness of various brands and reduce the overall appeal of tobacco products in terms of perceived attractiveness of the pack, expectations about and experience of taste and perceptions about the kinds of people believed to be likely to use particular brands. The effects could be expected to be particularly strong among young people establishing their identity and image among their peers—see Section 11.10.5.3. From an analysis of the effects of two previous sets of restrictions on advertising, economists Clark and Prentice concluded that entry into the market by competitors was unlikely to be significant and that greater consumption of illegal cigarettes was also unlikely. 136 The authors go on to state:

'Provided that tax increases offset any induced fall in prices, plain packaging will reduce cigarette consumption.'
Clarke and Prentice 2012136

11.10.7.2 Inconvenience, errors and lost trade for retailers

The Alliance of Australian Retailers has stated that plain packaging would make it more time-consuming for retailers to find cigarette packets when customers come in to make a quick purchase. The basis of these claims was the findings of a survey of a very small number of retailers, apparently fewer than ten.137 With an erosion of convenience to the purchaser, the Alliance feared that more customers would turn to supermarkets and other retailers able to sell large volumes of stock at discounted rates.138

While some retailers suggest that plain packing would involve some loss of convenience, any such effect would apply equally to discount as to convenience outlets. Containers holding stock can be clearly labelled and placed in alphabetical order to speed up identification. The draft legislation released by the Australian Government116 proposed (and the legislation adopted as law139 specified) that the brand name be permitted to be large enough to be seen by retailers. The font size specified in draft legislation was developed after research conducted for the Australian Government,96 which included face to face interviews with retailers aged 40 years and over (Study 3).

A simulation study by Carter and his colleagues found that plain packaging actually reduced transaction time and errors in pack selection, from an average of 3.17 to 2.92 seconds.140

11.10.7.3 Acquisition of intellectual property

One of the most vocal opponents of the proposed legislation was Tim Wilson of the Institute of Public Affairs. Wilson received widespread media coverage for his views that plain packaging legislation was equivalent to acquiring the intellectual property of tobacco companies and hence in contravention of Section 51 (xxxi) of the Australian Constitution and various international conventions and trade agreements.141 He argued that the Government would be forced to compensate tobacco companies up to $A3 billion dollars annually.142 The $A3b mentioned in Wilson's report appears to be very roughly calculated based on one third of the amount of total turnover of sales of tobacco products in Australia including revenue from excise and customs duty and goods and services tax.141

Wilson's views about Government liability were quickly dismissed by senior law experts. Professor Mark Davison of Monash University said this line of argument was

'... so weak, it's non-existent. There is no right to use a trademark given by the World Trade Organization agreement. There is a right to prevent others using your trademark but that does not translate into a right to use your own trademark.'
Davison cited in article by Berkovic, The Australian 2010 143

In a seminar organised by the Intellectual Property Research Institute of Australia, Professor Davison comprehensively rebutted Wilsons' arguments144 noting that countries were permitted to amend their intellectual property laws to protect public health. Professor Davison argued that plain packaging does not equate to acquiring the intellectual property of tobacco companies, because the Australian Government does not intend to use the logos and tobacco companies will still maintain full rights to their logos and brand imagery; they will simply no longer be able to use these marketing tools on cigarette packages.145

The legislation provided that in the event (which the Government considered unlikely) that preventing the use of trademarks was found to be contrary to Section 51 (xxxi) of the Constitution, then trademarks would be allowed but would have to conform to restrictions (for instance on size and placement) that would be specified in regulations.

On 15 August 2012 the High Court of Australia indicated in its brief 'pronouncement of orders' that the legislation was not contrary to the Constitution.146 The detailed reasoning for the decision released by the Court on the 5 October 2012 indicated that the legislation did not result in an acquisition of any property to which section 51(xxxi) of the Constitution applies and that it was within the legislative competence of the Parliament.147

11.10.7.4 Facilitation of illicit trade

Several companies have argued that plain packaging would facilitate illicit trade and increase use among minors.132

As is discussed in full in Chapter 13, Section 13.7, reports funded by the tobacco industry attempting to quantify the extent of illicit trade148–150 appear to have generated exaggerated estimates that do not correspond with estimates derived from Australian Government surveys151,152 or assessments by Australian Government revenue collection agencies153—see Section 13.7.4.8. A review of literature concerning illicit trade in tobacco products conducted by the International Agency for Research on Cancer154 found that illicit trade tended to be more common in countries with high levels of international trade, lax customs surveillance and where political instability facilitates corruption among government officials and reduces the probability of detection—see Section 13.7.2. None of these conditions apply in Australia. In its 2011 annual report, the World Customs Organization reported lower numbers of detections and lower quantities of illicit tobacco products seized by customs authorities in member countries compared to 2010.155

The draft legislation released by the Australian Government116 and the legislation as passed into law139 specified that anti-counterfeiting measures would be allowed on packs including alphanumeric codes and covert markings. Forensic-level differentiation of the content of the cardboard and other material is not prohibited. The Australian Government has also increased penalties for those found guilty of engaging in illicit trade in tobacco.156

11.10.8 Milestones in adoption of legislation

Legislation mandating plain packaging was passed by the Australian Parliament on 21 November 2011—see Tobacco Plain Packaging Act 2011, available from: http://www.comlaw.gov.au/Details/C2011A00148

The legislation makes it an offence to:

'... sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale, that are not compliant with plain packaging requirements. These offences apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the plain packaging requirements.157 Chapter 2 of the Act sets out detailed requirements relating to the packaging of tobacco products and the products themselves.'
Explanatory memorandum 157

The Act also provides for regulations to prescribe additional requirements:

'The effect of the requirements will be that tobacco company branding, logos, symbols and other images that may have the effect of advertising or promoting the use of the tobacco product will not be able to appear on tobacco products or their packaging. So as to identify the particular brand or variant of a tobacco product, the brand name and variant name will be allowed on packaging in specified locations, with a specified 'plain' appearance. Information which is required by other legislation or regulations, such as trade descriptions and graphic health warnings, will also be allowed to appear.'
Explanatory memorandum 157

The Act

'... prevents a trade mark from being placed on tobacco products or their retail packaging, so as to prevent trade marks from being used as design features to detract attention from health warnings, or otherwise to promote the use of tobacco products. However, {it also} ensures that its operation will not affect trade mark owners' ability to protect their trade marks from use by other persons, and to register and maintain the registration of a trade mark. Owners of trade marks in relation to tobacco products will be able to use their trade marks, other than on retail packaging and the products themselves, in ways that do not contravene the TAP Actvi or other laws, for example on business correspondence.'
Explanatory memorandum 157

For a full summary of the provisions of the Act, refer to the explanatory memorandum—Tobacco Plain Packaging Bill 2011, available from: http://www.comlaw.gov.au/Details/C2011B00128/Explanatory%20Memorandum/Text 157

For a full summary of the provisions of the Regulations, refer to the explanatory statement to the regulations—http://www.comlaw.gov.au/Details/F2011L02644/Download and to the amendments to those regulations—http://www.comlaw.gov.au/Details/F2012L00563/Download.

While the legislation was not signed into law until 1 December 2011, proposals for plain packaging in Australia date back to the early 1990s. The Australian Government approved the release of a discussion paper proposing plain packaging as one of a range of possible measures to address preventable disease, by the National Preventative Health Taskforce, on 10 October 2008.74

Major milestones in the development of this legislation are listed below.

15 Apr 1992: Australian Ministerial Council on Drug Strategy (composed of health and police ministers) proposes large new warnings and asks for a report on plain packaging.

This was after consideration of a report produced for it which recommended on the basis of its findings about the impact of packaging on the effectiveness of warnings, that 'regulations be extended to cover the colours, design and wording of the entire exterior of the pack' (p18).

Centre for Behavioural Research in Cancer. Paper 13: Adolescents' reactions to cigarette packs modified to increase extent and impact of health warnings:

24 Jul 1995: Advisor to (then) Australian Health Minister the Hon Carmen Lawrence MP is quoted in the Sydney Morning Herald as ruling out the idea of plain packaging, citing a need to explore international trade and legal issues.

15 Dec 1995: Australian Senate Community Affairs References Committee releases its (160-page) report. 'The Committee considers that, on the basis of the evidence received, there is not sufficient evidence to recommend that tobacco products be sold in generic packaging.'

Sep 1997: Australian Government formally replies to Senate Committee Report:

'In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney General's Department on the legal and constitutional barriers to generic packaging. This advice indicates that the Commonwealth does possess powers under the Constitution to introduce such packaging but that any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focussed on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia's international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under International covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).'

April 2008: Release of Freeman B, Chapman S and Rimmer M. The case for the plain packaging of tobacco products. Addiction 2008;103:580–90.

9 April 2008: Health Minister the Hon Nicola Roxon MP announces establishment of the National Preventative Health Taskforce.

10 Oct 2008: Release for consultation of the draft report of the Preventative Health Taskforce, entitled Australia: the healthiest country by 2020, including a large number of recommendations including one concerning plain packaging of tobacco products.

17–22 Nov 2008: At the third Conference of Parties in Durban South Africa, Parties to the Framework Convention on Tobacco Control adopt Guidelines on advertising, promotion and sponsorship (article 13) and Guidelines on Packaging and labelling (article 11) that recommend the use of plain packaging.

Oct to Nov 2008: Consultation sessions by the National Preventative Health Taskforce.

1 Dec 2008: Publication of report on first Australian research experiment on plain packaging. Wakefield M, Germain D and Durkin S. How does increasingly plainer cigarette packaging influence adult smokers' perceptions about brand image? An experimental study. Tobacco Control 2008;17(6):416–21.

15 Apr 2009: National Preventative Health Taskforce announces that it has considered more than 400 submissions received on its draft report released in October.

30 Jun 2009: National Preventative Health Taskforce provides final report to Government for consideration, entitled National Preventative Health Strategy – the roadmap for action.

20 Aug 2009: Australian Senator Steve Fielding introduces the Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009 which would have required plain packaging of tobacco products. This was referred for consideration to the Senate Community Affairs Committee which heard submissions and completed a report which was later tabled in the Senate on the 28 September 2010158

1 Sep 2009: The Minister for Health and Ageing, the Hon Nicola Roxon MP releases the final report of the Preventative Health Taskforce which recommends plain packaging as part of a comprehensive package of measures to make Australia the healthiest country in the world by 2020.

Preventative Health Taskforce. Australia: the healthiest country by 2020. National Preventative Health Strategy. Canberra: Commonwealth of Australia, 2009.

'Plain packaging would prohibit brand imagery, colours, corporate logos and trademarks, permitting manufacturers only to print the brand name in a mandated size, font and place, in addition to required health warnings and other legally mandated product information such as toxic constituents, taxpaid seals or package contents. A standard cardboard texture would be mandatory, and the size and shape of the package and cellophane wrapper would also be prescribed. A detailed analysis of current marketing practices78 suggests that plain packaging would also need to encompass pack interiors and the cigarette itself, given the potential for manufacturers to use colours, bandings and markings, and different length and gauges to make cigarettes more 'interesting' and appealing. Any use of perfuming, incorporation of audio chips or affixing of 'onserts' would also need to be banned.'
Tobacco Working Group. Technical report no. 2. Tobacco in Australia: making smoking history. Canberra: National Preventative Health Taskforce, 2008.

Roxon remarks at the launch of the document 'we are killing people by not acting'.

14 Oct 2009: Publication on line of Germain D, Wakefield MA and Durkin SJ. Adolescents' perceptions of cigarette brand image: does plain packaging make a difference? Journal of Adolescent Health 2010;46(4):385–92. Available from: www.jahonline.org/article/S1054-139X(09)00341-3/abstract

29 Apr 2010: The Australian Government announced its decision to implement plain packaging for tobacco products and to mandate updated and expanded graphic health warnings at the same time.

7 Apr 2011: Release by the Australian Government of an exposure draft of the legislation alongside a consultation paper, with comments to be received within the following 60 days.

23 May 2011: Review of the evidence published by Cancer Council Victoria.

29 May 2011: Release of results of research showed plain packaging of cigarettes was supported by the majority of Australians.

31 May 2011: Opposition announces it would not oppose plain packs. http://www.youtube.com/watch?v=99vJVdiqDSc&feature=related

6 Jun 2011: Over 250 submissions received by Government on draft plain packaging legislation.

6 Jul 2011: Bill introduced into House of Representatives, read and second reading moved.

7 Jul 2011: House of Representatives refers Bill to Standing Committee on Health and Ageing.

22 Jul 2011: Submissions close for House of Representatives Standing Committee on Health and Ageing Inquiry into Tobacco Plain Packaging Bill 2011.

4 Aug 2011: Hearings of the House of Representatives Standing Committee on Health and Ageing.

4 Aug 2011: Cancer Council Victoria releases updated evidence review and review of Deloitte report on illicit trade.

18 Aug 2011: Senate refers Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 to Legal and Constitutional Affairs Committee which calls for submissions (by 2 September 2011).

22 Aug 2011: House of Representatives Standing Committee on Health and Aged Care tables the report on its inquiry into Tobacco Plain Packaging.

24 Aug 2011: Second reading debate, third reading agreed to passage of legislation through House of Representatives http://www.aph.gov.au/hansard/reps/dailys/dr240811.pdf

25 Aug 2011: Bill introduced and read a first time in Senate, then second reading moved.

2 Sep 2011: Submissions received by Senate's Legal and Constitutional Affairs Committee.

13 Sep 2011: Hearings of the Senate's Legal and Constitutional Affairs Committee.

17 Sep 2011: Release of new graphic health warnings for tobacco products.

19 Sep 2011: Legal and Constitutional Affairs Committee provides report159 to Senate.

11 Oct 2011: Second reading debate in Senate commences.

2 Nov 2011: The then Minister for Health the Hon Nicola Roxon MP announces that the implementation of plain packaging will be delayed until December 1, 2012 as a result of delays in the Senate review of the bill.vii

9 and 10 Nov 2011: Bills return to Senate including revised timelines. Second reading debate continues and Second reading agreed to, Third reading agreed to. Trade Marks (Tobacco Plain Packaging Bill 2011 passes the Australian Senate.

21 Nov 2011: Final passage of amended Tobacco Plain Packaging Bill through House of Representatives

Vote on Tobacco Plain Packaging Bill as amended by the Senate. The Bill passes the Australian Parliament including amendments to extend the timeframe for implementation.

Official Hansard No 18, Monday 21 November, Forty-third Parliament, First session--Fourth period 2011:12913.

1 Dec 2011: Signing into law by Governor General of Tobacco Plain Packaging Act 2011 and Trade Marks Amendment Plain Packaging Act 2011.160

7 Dec 2011: Tobacco Plain Packaging Regulations made (registered 12 December, tabled in the House of Representatives and Senate on 7 February 2012).161

22 Dec 2011: Release of new Information Standard specifying enlarged graphic health warnings (http://www.productsafety.gov.au/content/index.phtml/itemId/991370) for tobacco products Competition and Consumer (Tobacco) Information Standard 2011.162

8 Mar 2012: Making of Tobacco Plain Packaging Amendment Regulation 2012, tabled in House of Representatives and Senate on 14 March 2012.

Oct Nov 2012: Some packs in plain packaging start to appear in retail outlets.

1 Dec 2012: From this date, all tobacco packages in Australia must appear in plain packaging as specified in the Tobacco Plain Packaging Act 2011.

11.10.9 Major milestones in legal challenges to the legislation

The Tobacco Plain Packaging Act 2011 has been challenged in several legal fora.

Constitutional challenges filed in Australia's High Court centred on section 51(xxxi) of the Australian Constitution which allows Parliament to make laws with respect to 'the acquisition of property on just terms'. These challenges were dismissed in August 2011. Other claims have been made under World Trade Organization agreements, including those dealing with intellectual property and technical barriers to trade.163 164 Philip Morris Asia Limited has also challenged Australia's plain packaging measures under a bilateral investment treaty between Australia and Hong Kong.

Major developments to date include the following:

7 Jun 2011: Dominican Republic raises concerns about legislation at the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) council meeting. Support or sympathy for the Dominican Republic came from Honduras, Nicaragua, Ukraine, the Philippines, Zambia, Mexico, Cuba and Ecuador. New Zealand, Uruguay and Norway said Australia's draft law is justified. India did not comment on the law specifically but said studies show that plain packaging does reduce smoking. India, Brazil and Cuba stressed their view that countries have the right to implement public health policies without intellectual property being an obstacle—referring directly or indirectly to the 2001 Doha Declaration on TRIPS and Public Health. Concerns were also raised at subsequent TRIPS and Technical Barriers to Trade meetings.

 

21 Nov 2011: Philip Morris Asia Limited , Hong Kong, owner of Australian affiliate, Philip Morris Limited , announces that it has begun legal proceedings against the Australian Government by serving a Notice of Arbitration under Australia's Bilateral Investment Treaty with Hong Kong.

See related documents: Attorney-General's Department. Investor-State Arbitration - Tobacco Plain Packaging. Canberra: Australian Government, 2011

1 Dec 2011: Tobacco companies told they have a full twelve months to prepare to comply with legislation.

Dec 2011: British American Tobacco, Imperial Tobacco, Japan Tobacco International, and Philip Morris Limited each file a Writ Of Summons in the High Court.

15 Dec 2011: Health Minister the Hon Nicola Roxon MP named Attorney-General in Cabinet reshuffle, vows to continue fight for plain packaging.

22 Dec 2011: Attorney-General the Hon Nicola Roxon MP accuses Philip Morris of corporate restructuring to assist its case under the Australia–Hong Kong Bilateral Investment Treaty.

14 Apr 2012: Japan Tobacco International says that Australian Government will 'benefit' if fewer people die from tobacco after plain packs. This argument was part of building a case about whether 'acquisition' of brands 'benefits' others.

17–19 Apr 2012: High Court cases heard in Canberra. High Court submissions and transcripts of proceedings (British American Tobacco: http://www.hcourt.gov.au/cases/case-s389/2011 and Japan Tobacco: http://www.hcourt.gov.au/cases/case-s409/2011)

15 Aug 2012: The High Court hands down its orders that the Tobacco Plain Packaging Act 2011 is not contrary to section 51(xxxi) of the Constitution.147

28 Sep 2012: World Trade Organization's Dispute Settlement Body agrees to establish a dispute settlement panel at the request of Ukraine, to hear a complaint brought by Ukraine against Australia regarding its plain packaging measures. A record number of 34 WTO members indicated they will join the dispute as third parties. On 15 October, Honduras also submitted a request to the Dispute Settlement Body to establish a dispute settlement panel, which Australia rejected at the WTO Dispute Settlement Body meeting on 19 November.

5 Oct 2012: High Court publishes its reasons for rejecting the constitutional challenges.146

9 Nov 2012: The Dominican Republic requests the establishment of a panel under the dispute settlement procedures of the World Trade Organization and asks that this request be included on the agenda of the WTO Dispute Settlement Body meeting on 17 December 2012.

11.10.10 International flow-on effects

Australia's legislation has been applauded by respected commentators in tobacco control165,166 and by international health authorities. It has also strengthened the resolve of several other governments to follow Australia's example.

In November 2010 the British Health Secretary Andrew Lansley issued a policy document suggesting that 'the government will look at whether the plain packaging of tobacco products could be an effective way to reduce the number of young people taking up smoking and to help those who are trying to quit smoking.'167 On 9 March 2011, the British government released a tobacco control plan which repeated its statement of intention to consider plain packaging. Healthy Lives, Healthy People: A Tobacco Control Plan for England:168

'We will consult on options to reduce the promotional impact of tobacco packaging, including plain packaging, before the end of 2011'.168 p22

On 16 April 2012, the British government opened public consultation on plain packs, including a major systematic review of evidence; impact assessment; and equality impact assessment.

In December 2010 French National Assembly member, Yves Bur (a member of the UMP party and representative of the Bas-Rhin region), introduced a Bill to implement plain packaging.169 In March 2012 he presented a report on recommended policies for tobacco control commissioned by the French minister for labour, employment and health, Mr Xavier Bertrand, which urged support for amendment of European Union regulations to mandate plain packaging.170

Belgium's health minister has also expressed support for plain packaging. In response to a question in parliament he stated:

'With plain packaging, only the brand name is displayed in a standard format. The impact of such labelling to reduce the attractiveness and increase the impact of health warning messages, especially for young new smokers, has been shown in several studies...I continue to support such measures, including at the European level.' (unofficial translation)
Transcript of remarks 171

In its response to the report of the Maori Affairs Committee which some months previously had recommended plain packaging,172 the New Zealand government stated on 14 March 2011:

'The Government is monitoring Australia's progress on its proposal to legislate for plain packaging of tobacco products in 2012, and will consider the possibility of New Zealand aligning with Australia. New Zealand Government officials have commenced discussions with respective Australian counterparts on the possible alignment. An initial report back to Cabinet is due by 30 June 2011.'
Government of New Zealand 173 p7–8

On 23 July 2012 the New Zealand Government announced agreement in principle to introduce plain packaging subject to the outcome of consultation. Comments on the legislation were received up to 12 October 2012.

Other international events of interest included the following:

19 Sep 2011: The Hon Nicola Roxon's statement to the UN General Assembly NCDs High-Level Meeting.

26 Sep 2011: World health Ministers congratulate Roxon at United Nations meeting in New York.

10–11 Jan 2012: WHO hosts world's first technical meeting on plain packaging in Brunei Durassalem, focused on lessons from Australia's efforts for other nations. Attended by delegates from Australia, Brazil, Brunei, China, Cambodia, Egypt, Malaysia, Mongolia, New Zealand, Panama, Philippines, Thailand, Turkey, United Kingdom, Uruguay and Vietnam.

12 Apr 2012: Brendan Nelson, High Commissioner to European parliament, speaks on plain packaging.

13 Apr 2012: British tobacco stocks hit by concern about plain packs.

14 Apr 2012: Health secretary Lansley says Australia has inspired the United Kingdom to consider plain packs.

11.10.11 Initial industry responses to attempt to mitigate the impact of legislation

In the months leading up to 1 December 2012 (the date after which only plain packs could be sold in Australia) tobacco companies employed a number of strategies to attempt to mitigate the effects of the legislation. These activities included reassuring smokers about the continuing quality of well-known brands, the issuing of special editions and collector packs, and the launching of a number of new brands and variants.

11.10.11.1 Assurances to smokers about product quality

British American Tobacco Australia altered the packaging of Winfield Blue in 2011 with a message emphasising its status as the top-selling brand in Australia, 'True Blue Aussie Original since 1972'.

It also provided stickers reassuring smokers that the quality of its number one brand, Winfield, would continue unchanged despite the imminent new packaging.

Philip Morris provided customers with similar assurances through pack inserts.

Imperial Tobacco Australia took a more dramatic approach with its Peter Stuyvesant brand, attempting to get in early with a 50–50 tear off design promoting the 'same on the inside' message.

 

Figure 11.10.21

Figure 11.10.21
Winfield cigarettes with message reassuring smokers about continuing quality

Source: Quit Victoria collection

 

Figure 11.10.22

Figure 11.10.22
Winfield cigarettes including sticker with message reassuring smokers about continuing quality

 

Figure 11.10.23

Figure 11.10.23
Philip Morris pack insert reassuring smokers about continuing quality

Source: ASH Australia Packwatch websitesee http://www.ashaust.org.au/lv4/MarketingPloys.htm#PACKWATCH

 

Figure 11.10.24cFigure 11.10.24 Figure 11.10.24b
Figure 11.10.24d

Figure 11.10.24
Peter Stuyvesant promotional cartons reinforcing the message 'It's what on the inside that counts'

Source: Quit Victoria

11.10.11.2 New brands, pack sizes, brand variants and brand extensions introduced prior to implementation of plain packaging

After the legislation was passed, Philip Morris and British American Tobacco both each released a brand that might be predicted to fare better than many current brands after the transition to plain packaging. The exclusively named but very plainly packaged Bond Street (an existing brand available for many years outside Australia) was introduced in plain cardboard packaging in a novel 26s pack size in February 2012. This provided an extra cigarette compared to the usual 25s and (being quite plain) was of a design that would have to change less dramatically than that of many other brightly coloured brands. British American Tobacco Australia's less elegant but 'to the point' Just Smokes was introduced in May 2012 priced well below almost every other brand on the market (Coles and Woolworths online June 2012).

 

Figure 11.10.25

Figure 11.10.25
Philip Morris Australia's Bond Street introduced February 2012 and British American Tobacco's Just Smokes, introduced May 2012

Source: Quit Victoria, 2012

British American Tobacco Australia also employed the 'extra couple of cigarettes' strategy, selling Holiday in packs of 22s. Imperial Tobacco Australia followed some months later with Horizon 21s. Winfield Gold has in the past been packaged as four packs and termed 'Slab', consistent with Australian vernacular description of beer cans purchased in bulk.

 

Figure 11.10.26

Figure 11.10.26
Winfield Gold cigarettes sold in packs of four and termed 'Slab' consistent with Australian vernacular description of beer cans purchased in bulk

Several new brand variants were launched in the period leading up to implementation of the legislation, with new menthol variants and 'hybrids' released for several major brands. The hybrids provide customers with menthol capsules in the filter that could be squeezed to add menthol to their cigarettes.

 

Figure 11.10.27 Figure 11.10.27a
Figure 11.10.27b Figure 11.10.27c.jpg

Figure 11.10.27
Philip Morris' Peter Jackson Hybrids and Marlboro Ice Blast variant; Imperial Tobacco's John Player Special Ice menthol variant.

Source: Quit Victoria 2012 and ASH Packwatch website, 2012

Late in 2011, Imperial Tobacco Australia launched an extension to John Player Special (packs for which had been re-badged 'JPS' in 2009). JPS Superkings were sold in packs of 20s and were longer than the standard JPS 25s. A further variation of JPS 20s—a much smaller pack, with 'techno'-looking packaging and a 'techno'-sounding name 'JPS Nano'was released in mid-2012. JPS Nano—was noted for sale in Melbourne stores from July 2012.

A further variation, JPS Duo, was noted from November 2012, just one month before the last date on which branded packages could be sold in Australia. The width of the packaging for JPS Nano was smaller than the minimum dimension required by the Tobacco Plain Packaging Regulations 2012.161

 

Figure 11.10.28

Figure 11.10.28
Imperial Tobacco's JPS, JPS Superkings and JPS Nano

Source: Quit Victoria 2012

11.10.12 Implementation of Act

Cigarettes and smoking tobacco in plain packaging were noted in retail outlets in Australia from October 2012.

From 1 December 2012, all cigarettes and other tobacco products sold in Australia must comply with the Tobacco Plain Packaging Act 2011.

 

Figure 11.10.29

Figure 11.10.29
Packs of British American Tobacco Australia's Winfield Blue (the leading brand of cigarettes in Australia) and Philip Morris Australia's Marlboro Red (the leading brand of cigarettes internationally) purchased in Carlton Victoria November 2012

Source: Quit Victoria 2012

 


i Portions of this material are drawn from: Freeman B, Chapman S and Rimmer M. Review: the case for the plain packaging of tobacco products. Addiction 2008;103:58090. Available from http://tobacco.health.usyd.edu.au/assets/pdfs/tobacco-related-papers/Addiction_generic.pdf

iii The television advertisements can be viewed here from http://www.youtube.com/user/analogcreative/videos?view=0
Radio advertisements can be viewed here: http://australianretailers.com.au/latestnews.html

iv http://www.plain-packaging.com (no longer operational)

v See pages 1746

vi The Tobacco Advertising Prohibition Act 1992 (Cth) Available from: www.comlaw.gov.au/Details/C2010C00100

vii For explanation of the amendments that were required in order to delay implementation of the legislation, see http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4613_ems_868b76ac-afab-4e0d-84a2-5a95d5543192/upload_pdf/361981sem.pdf;fileType=application%2Fpdf

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