The tobacco industry uses several repetitive phrases in its arguments, submissions, media releases and correspondence with policy-makers, such as ‘nanny state’, ‘adult choice’, ‘freedom of choice’, and ‘unintended consequences’. It commonly refers to the ‘ineffectiveness’ of any proposed reform — claiming it has failed elsewhere — but purports to support ‘sensible reforms’ or ‘effective reforms’. It frequently claims that proposed reforms will result in ‘smuggling’, ‘illicit trade’, or ‘black market’ activity.
10A.2.1 Freedom of choice
The term ‘nanny state’ applied to either health groups or governments is used by the tobacco industry and its allies to oppose further regulation on the basis that proposed regulations are overbearing and interfere with personal choice and freedoms.1 In August 2011, an entire Australian political party was launched on the basis of ‘freedom of choice’: The Tobacco and Alcohol Party of Australia. The party ‘objects to nanny state politics’ and was formed to act as a ‘voice for choice’ for consumers. No statistics are publicly available on membership or financial support from donors, but the official Facebook page for the party only had 31 members as of 16 August 2011, and by December 2016 had disappeared from Facebook. It is no longer registered with the Australian Electoral Commission. The Smokers’ Rights Party is registered with the AEC but only stood one candidate at the 2016 federal election and instead recommended that ‘… the Liberal Democrats have the best policy for smokers’. The Liberal Democrats had one elected Senator in 2016 who opposed increases in tobacco excise.
Proponents of government intervention to protect and support health recognise that individual choices do not happen in a vacuum but are heavily influenced by the environment in which they are made.2 The State can help to create an environment that empowers people to make their own choices. This is particularly true in the case of tobacco, where the industry acts aggressively, through persuasive marketing and product development, to recruit new consumers and keep existing ones.3
The tobacco industry seeks to portray itself as a defender of fundamental freedoms. It uses ‘freedom of choice’ arguments to enlist the support of civil libertarians, media interests and the business community in fighting against any regulation of smoking and tobacco promotion.4 ‘Freedom of choice’ arguments shift full responsibility onto the shoulders of individuals to negate the role that the industry plays in fostering unhealthy behaviours. Table 10A.2 outlines the common arguments used by ‘freedom of choice’ advocates.
10A.2.2 Economic importance
Another common argument perpetuated by the tobacco industry and its allies is that the tobacco business is a vital contributor to the health of economy. Warner has outlined the common economic myths circulated by the industry and has also provided a counter summary of the economic realities.6 See Table 10A.3 for a summary of the tobacco industry economic myths.
One of the most important economic considerations in tobacco control is that, ‘tobacco inflicts a greater harm among disadvantaged groups’.9 Smoking is both a contributor to and a consequence of poverty and disadvantage. Policies and interventions focusing on smoking prevention and cessation among the poor are an important component of national and international tobacco control.9 The imbalance between the tobacco industry’s economic strength and the typically low political power of public health authorities in low and middle income countries emphasises that focusing on the most disadvantaged must be a global effort.10
10A.2.3 Ineffectiveness of policy measures
Lack of evidence is another argument frequently used by the tobacco industry to dispute the likely effectiveness of a particular policy measure. For example, an industry website encouraging retailers to oppose regulation of the tobacco retail environment in the US claims that such regulation would be ineffective in reducing youth tobacco use because most youth obtain tobacco from social sources. A critique of the website cites evidence that decreasing the availability and increasing the price of tobacco does reduce youth tobacco use, and can also reduce cues for adult consumers to buy tobacco.11
The tobacco industry also claimed there was insufficient evidence to support plain packaging of tobacco products, suggesting that implementation of the policy was premature and risky.12 This was despite a large and robust evidence base that plain packaging reduced the appeal of smoking, particularly to young people; strengthened the effectiveness of graphic health warnings; and reduced false beliefs about the health harms of tobacco—see Chapter, Section 11.10.4.
A variation on the industry argument that a policy is ineffective is that it is unnecessary. For example, in opposing price promotions on tobacco products, the industry has claimed that this is not needed to prevent underage tobacco use because laws already ban the sale of tobacco products to minors. This ignores evidence that youth access laws are not uniformly enforced.13
10A.2.4 Unintended consequences
The tobacco industry has suggested that a multitude of unintended consequences will flow from various policy measures that it opposes.
In opposing point-of-sale display bans for retailers, tobacco industry and retail groups have predicted far-reaching consequences including a very high cost of implementation borne by retailers; a doubling of serving times leading to lost business; and substantial revenue loss for small retailers causing widespread shop closures—see Chapter 11, Section 11.9.4.2.
Similar arguments were used to oppose plain packaging of tobacco products. This included the claim that plain packs would make it difficult and time-consuming for retailers in small convenience stores to serve customers, resulting in errors and delays that would cause customers to purchase tobacco at supermarkets. Australian plain packaging law requires that the brand name is large enough to be seen by retailers, and a simulation study has shown that plain packaging actually reduced transaction time and errors in pack selection—see Chapter 11, 11.10.6.2.
The tobacco industry has claimed that both point-of-sale display bans and plain packaging encourage price competition and foster illicit trade – see Chapter 11 Sections 11.9.4.1 and 11.10.6. This argument is also commonly used to oppose increased taxes on tobacco products,13 despite evidence that increases in taxes on cigarettes are the single most effective way to reduce death and disease caused by smoking.14 There is extensive historical evidence of transnational tobacco companies’ complicity in facilitating the smuggling of their own cigarettes, including a report in the Guardian that British American Tobacco had “condoned tax evasion and exploited the smuggling of billions of cigarettes in a global effort to boost sales and lure generations of new smokers”.15
A review of literature concerning illicit trade in tobacco products conducted by the International Agency for Research on Cancer14 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 Chapter 13, Section 13.7.7.
An extension of unintended consequences arguments used by industry to oppose tobacco control measures is the ‘slippery slope’ argument, which suggests that a particular policy would set a troubling precedent that would then be applied to other products. This argument was used to oppose plain packaging in New Zealand, where a British American Tobacco advertisement featured an image of a customer facing a liquor store fridge full of beer bottles with plain wide labels, and displayed the text ‘I don’t mind if alcohol is next’.12
The slippery slope argument was used to argue against warning labels on tobacco products as far back as the 1970s when the chairman of Rothmans of Pall Mall (Australia) stated: “The precedent is one which could easily come to affect other industries. For instance, a number of medical scientists claim that butter and milk are dangerous to the health of some people. It is recognised that drinking too much liquor or reckless driving are hazards to life... can we expect all these products to carry a ‘danger’ label ...?”16
10A.2.5 Advocacy for weak policies and programs
Youth smoking prevention programs have often been promoted by tobacco companies as an alternative to other, more effective policies. An analysis of tobacco industry documents has shown that the purpose of such programs is not to reduce youth smoking, but to meet other objectives including preserving the industry’s access to youths. Industry programs portray smoking as an adult choice and fail to discuss the health dangers of smoking. There is no evidence that these programs decrease smoking among youths, but they can serve the industry’s political needs by preventing effective tobacco control legislation and creating allies within policymaking and regulatory bodies.17
An approach used by the tobacco industry in the past has been to suggest voluntary self-regulation when legislation appears unavoidable. Industry agreements to regulate tobacco advertising failed in countries around the world, according to one observer, “for the simple reason that they were never intended to succeed”. Such agreements were worthless because their wording was loosely phrased; they failed to curb some of the industry’s worst excesses; there were no penalties for breaches; and the agreements were not widely publicised and therefore attracted few complaints.18
10A.2.6 Illegality of tobacco control measures
The tobacco industry has initiated litigation against governments to obstruct the implementation of evidence-based, effective tobacco control measures by claiming such measures are unlawful – see Chapter, Section 16.5.
Claims that plain packaging of tobacco breached tobacco companies’ intellectual property rights were made to oppose the policy in various countries. In New Zealand, a British American Tobacco advertisement depicted a sign with the slogan “If I create it, I should own it”. A critique of the advertisement describes this argument as a “straw man fallacy” since trademarks allow owners to prevent others from using their intellectual property, and plain packaging does not remove this right. Instead, plain packaging imposes some limits on how tobacco companies may use their intellectual property. Governments can and do restrict rights to possess and use dangerous items.12
In Australia, Tim Wilson (then working at the Institute of Public Affairs) received widespread media coverage for his views that plain packaging legislation was equivalent to acquiring the intellectual property of tobacco companies and hence contravened Section 51 (xxxi) of the Australian Constitution. 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 – see Section Chapter 11, 11.10.6.3.
International trade agreements have also been used by the tobacco industry to mount legal challenges to tobacco control policies, particularly plain packaging. Three sets of challenges were brought against the plain packaging legislation: a constitutional challenge in the High Court of Australia brought by British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris; an investment challenge by Philip Morris Asia under the Hong Kong – Australia bilateral investment treaty, and a set of WTO disputes brought by Ukraine, Honduras, the Dominican Republic, Cuba and Indonesia.19
Tobacco companies and retailers have also attempted to overturn laws banning point-of-sale displays of tobacco products in various countries, including mounting legal challenges claiming that such bans breach trade agreements, and Constitutional protections of freedom of expression and freedom of speech – see Chapter 11, Section 11.9.4.1.
Relevant news and research
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References
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