Last updated: May 2018
Suggested citation: Hagan, K., and Barnsley, K. 10A.8 Mechanisms of influence—participation in regulatory review processes. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2018. Available from http://www.tobaccoinaustralia.org.au/chapter-10-tobacco-industry/10a-8-the-mechanisms-of-influence-participation-in
10A.8.1 Input to consultation processes
An investigation by the news agency Reuters revealed a comprehensive campaign by Philip Morris to derail implementation of the World Health Organisation’s Framework Convention on Tobacco Control (FCTC), a treaty aimed at reducing smoking globally. Internal documents dating from 2009 to 2016 uncovered by Reuters showed the tobacco company regarded the treaty as a ‘regulatory runaway train’ driven by ‘anti-tobacco extremists’.
According to the Reuters report, Philip Morris worked to subvert the treaty on multiple levels, particularly by attempting to influence national delegations. It detailed meetings between Philip Morris and Vietnam during the FCTC conference in Delhi in 2016. At the previous conference in Moscow in 2014, Vietnam’s interjections were said to have frequently mirrored Philip Morris’ positions, including the claim that higher taxes on cigarettes would lead to more illicit sales. The Reuters report stated that since FCTC decisions were typically made by consensus, influencing a single national delegation could be an effective way for tobacco companies to delay progress.
One of the stated objectives of tobacco companies is to change the composition of FCTC delegations so that there are fewer public health officials, and more representatives from ministries such as finance and trade.1 A similar approach has been used in Australia where tobacco companies have used the issue of illicit tobacco to gain access to decision-makers in areas other than health. This has included tobacco industry representation on the Department of Home Affairs’ Illicit Tobacco Advisory Group, which “enables industry and government to work together to eliminate the trade in illicit tobacco”.2 Industry representatives are also part of the Australian Taxation Office’s (ATO) Tobacco Stakeholder Group, described as “a consultative forum for representatives of the tobacco industry, ATO and Department of Home Affairs to discuss issues of mutual interest in the tobacco industry”.3
Further to this cooperation, an investigation by the Australian Broadcasting Corporation revealed that tobacco companies have provided Australian law enforcement agencies with high-level intelligence on crime syndicates dealing in illicit tobacco. Tobacco companies identified targets, helped plan operations and tactics and paid for surveillance technology, according to the ABC report.4 Critics believe these interactions may be in breach of the FCTC’s Article 5.3, which requires that “in setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry”.5
In addition to manoeuvring behind the scenes, there are also examples of tobacco companies making direct contributions to consultation processes in a bid to oppose tobacco control measures. The requirement for government agencies to undertake regulatory impact assessments on new legislative initiatives means that the tobacco industry has an opportunity to intervene in the process of regulatory reform, and to “slow, weaken, or prevent public health policies”.6 Indeed, British American Tobacco actively campaigned for such requirements, in order to ensure that its business interests were paramount in policy development and decision making.7 In Australia, the mechanism for providing submissions to government as part of the legislative process and the regulatory impact assessment process itself has been criticised for being ineffective.8 Tobacco companies assiduously provide comments or submissions whenever a new tobacco control initiative is proposed, often supported by poor quality research.9
In Australia the industry failed to provide detailed financial data in its submissions prior to the implementation of the Tobacco Plain Packaging Act 2011. The data provided was highly generalised, and included costs of other activities.10 An analysis of submissions by major tobacco companies to the UK Department of Health’s consultation on standardised packaging in 2012 found the companies cited a large volume of evidence. With few exceptions, the evidence lacked either policy relevance (for example by shifting focus to non-packaging drivers of smoking behaviour), or key indicators of quality (such as independence and peer review). Researchers concluded that tobacco companies can use their considerable resources to exploit consultation processes “by commissioning new research and submitting extensive and complex responses in the pre-decision phase of the policy process. The combination of a requirement for due diligence and the volume and nature of responses may have contributed to the 11-month delay in the publication of the Department of Health’s consultation report”.11
10A.8.2 “Death by FOI”
In Australia, the Commonwealth government and each State and Territory have Freedom of Information legislation, which allows certain documents to be made available to applicants. These are freedom of information (FOI) or right to information (RTI) laws. Misuse of FOI provisions by the tobacco industry have been reported in several countries including the USA, New Zealand and the UK.12-14 The tobacco industry uses FOI requests to: divert government agencies and staff from their primary functions; to obtain raw data in order to challenge the effectiveness of tobacco control policies, or to dispute the harmfulness of smoking; and to gather valuable information about potential regulatory developments.13
In Australia, tobacco companies lodged a battery of FOI requests with the federal health department as part of their fight against plain packaging. In evidence to a Senate estimates committee in early 2012, Health department secretary Jane Halton said the department had received 64 tobacco-related requests since plain packaging was announced in April 2010. In particular, Ms Halton cited the example of a group of 17 requests lodged by a tobacco company in July and August 2010. These were reduced by negotiation to cover an estimated 13,137 documents from an initial estimate of 81,791 documents. The requests were divided into six tranches with the applicant’s consent, but the request for the final tranche of documents was later withdrawn. The processing took up to 18 months at a cost to the department of $643,000, of which $135,734.60 (21 per cent) was recoverable from the applicant.15
The former Minister for Health and Ageing, the Hon. Nicola Roxon, said in February 2011 that the plain packaging-related FOI applications were an attempt to “tie up government resources and other resources in the hope of slowing [us] down … or reducing our determination to this cause”. Legal researchers Andrew Mitchell and Tania Boon write that the requests “may be seen as attempts to retaliate against the government and send a message to other governments about the resources they will need to expend in defending such measures”. 16
The NSW Cancer Institute was compelled to provide survey data into adults’ attitudes to smoking to British American Tobacco. The data was then used in Britain to contest plain packaging laws.17
Tobacco companies have also sought access to research data on the smoking behaviour of teenagers. In the UK in 2009, the law firm Clifford Chance filed an FOI application with the University of Stirling’s Centre for Tobacco Control seeking all primary data from a study into the smoking behaviour of British teenagers. The law firm appealed the university’s refusal to release the data to the Scottish Information Commissioner, who rejected the appeal because Clifford Chance had failed to disclose that its client was Philip Morris.
In 2011, Philip Morris itself applied for the raw data from Stirling University. The information commissioner this time rejected the university’s claim that the request was vexatious. The university then argued that it would be too costly and time-consuming to release the data, and Philip Morris eventually dropped its request after the company was widely condemned following media reports about the case. Philip Morris told The Independent newspaper it was not seeking to access individuals’ private information, rather: “We made the request in order to understand more about a research project conducted by the University of Stirling on plain packaging for cigarettes”.18, 19
According to the University of Bath’s Tobacco Tactics website, the Philip Morris action achieved several goals:
A similar case played out in Australia in 2015, when British American Tobacco (BAT) made an FOI request to access data from several studies, including a study into the smoking behaviours and attitudes of Victorian school children by Cancer Council Victoria researchers. BAT said it sought the documents to review the effectiveness of plain packaging laws. The case was determined in the Victorian Civil and Administrative Tribunal, and the tobacco company was refused access to all but one set of documents for which the final dataset was already widely available.21
1. Kalra A, Bansal P, Wilson D, and Lasseter T. Inside Philip Morris’ campaign to subvert the global anti-smoking treaty Reuters, 2017. Available from: http://www.reuters.com/investigates/special-report/pmi-who-fctc/
2. Australian Government Department of Home Affairs. Illicit Tobacco Industry advisory group. 2018. Last update: Viewed Available from: https://www.homeaffairs.gov.au/Busi/engaging-with-the-department/Illicit-Tobacco-IAG.
3. Australian Government Australian Taxation Office. Tobacco stakeholder group. 2018. Last update: Viewed Available from: https://www.ato.gov.au/General/Consultation/Consultation-groups/Stakeholder-relationship-groups/Tobacco-Stakeholder-Group/.
4. Ashlynne McGhee and Michael McKinnon. Big tobacco propping up law enforcement, freedom of information documents reveal. ABC News, 2017. Available from: http://www.abc.net.au/news/2017-08-26/big-tobacco-propping-up-law-enforcement-freedom-of-information/8841700
5. World Health Organization. Article 5.3 of the WHO Framework Convention on Tobacco Control 2003. Last update: Viewed Available from: http://www.who.int/fctc/text_download/en/.
6. Ulucanlar S, Fooks GJ, Hatchard JL, and Gilmore AB. Representation and misrepresentation of scientific evidence in contemporary tobacco regulation: A review of tobacco industry submissions to the UK government consultation on standardised packaging. PLoS Med, 2014; 11(3):e1001629. Available from: http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001629
7. Smith K, Fooks G, Collin J, Weishaar H, Mandal S, et al. 'Working the system' − British American tobacco's influence on the European union treaty and its implications for policy: An analysis of internal tobacco industry documents. PloS Medicine, 2010; 7(1):e1000202. Available from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2797088/?tool=pubmed
8. Harrison M. Assessing the impact of regulatory impact assessments. Agenda: A Journal of Policy Analysis and Reform, 2009:41–9. Available from: http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1107&context=smartpapers
9. Scollo M, Lal A, Hyland A, and Glantz S. Review of the quality of studies on the economic effects of smoke-free policies on the hospitality industry. Tobacco Control, 2003; 12(1):13. Available from: http://tobaccocontrol.bmj.com/cgi/reprint/12/1/13
10. Australian Government and Department of Health. Post-implementation review: Tobacco plain packaging 2016. Canberra: Department of the Prime Minister and Cabinet, 2016. Available from: http://ris.pmc.gov.au/2016/02/26/tobacco-plain-packaging.
11. Hatchard JL, Fooks GJ, Evans-Reeves KA, Ulucanlar S, and Gilmore AB. A critical evaluation of the volume, relevance and quality of evidence submitted by the tobacco industry to oppose standardised packaging of tobacco products. BMJ Open, 2014; 4(2):e003757. Available from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3927933/
12. Tobacco Tactics. Freedom of information requests,. 2016. Last update: Viewed Available from: http://www.tobaccotactics.org/index.php?title=Freedom_of_Information_Requests.
14. Wong G, Youdan B, and Wong R. Misuse of the official information Act by the tobacco industry in New Zealand. Tobacco Control, 2010; 19:(4):346–7. Available from: http://tobaccocontrol.bmj.com/content/19/4/346
15. Andrew Mitchell and Tania Voon. Submission on the freedom of infomation Act 1982. 2013. Available from: https://www.ag.gov.au/Consultations/Pages/ReviewofFOIlaws.aspx.
16. Mitchell AD and Voon TSL. Someone to watch over me: The use of FOI requests by the Tobacco Industry. Australian Journal of Administrative Law, 2014:18–42. Available from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2421046
17. McKenzie N and Baker R. Tobacco company wants schools survey for insights into children and teens. Sydney Morning Herald, 2015. Available from: http://www.smh.com.au/national/tobacco-company-wants-schools-survey-for-insights-into-children-and-teens-20150819-gj2vto.html
18. Steve Connor. Tobacco giant drops demand to see research on teenage smokers. The Independent, 2011. Available from: https://www.independent.co.uk/news/science/tobacco-giant-drops-demand-to-see-research-on-teenage-smokers-6268285.html
19. Steve Connor. Exclusive: Smoked out: Tobacco giant's war on science. The Independent, 2011. Available from: https://www.independent.co.uk/news/science/exclusive-smoked-out-tobacco-giants-war-on-science-2347254.html
20. University of Bath. Tobacco tactics - FOI: Stirling university. 2012. Last update: Viewed Available from: http://www.tobaccotactics.org/index.php?title=FOI:_Stirling_University.
21. Rania Spooner. VCAT rejects tobacco giant's push to access schoolchildren smoking data. The Age, 2016. Available from: https://www.theage.com.au/national/victoria/vcat-rejects-tobacco-giants-push-to-access-school-children-smoking-data-20160927-grpaef.html