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Carcinogen producers gain some developing country allies

My general attitude to the plain packaging legislation is that it can do no harm if your interest is in curtailing cigarette consumption.  It might not be very effective but it might be somewhat effective. So I support the legislation.  The carcinogen producers do not, of course, support it which makes me suspicious that it might, in fact, be effective.  I am sure they are concerned with contagion effects of successful legislation spreading to other countries. They might also be concerned that barriers to entry to their industry might be reduced fostering competition and reduced prices.  This would only concern me if, following any price fall, the government did not act to raise tobacco taxes to (or above) pre-entry price levels. Reduced profits to the large carcinogen producers would be a most welcome outcome from my viewpoint. Less profits, reduced opportunities to spread lies and reduced incentives to sell a product which kills people.

The carcinogen producers are attacking the Australian legislation in Australia via a High Court challenge to its constitutionality. They are also challenging the proposal on the grounds that, with Phillip Morris having shifted operations to Hong Kong (how convenient!), the plain packaging move violates a free trade agreement signed with Hong Kong in 1993.  Now, in addition, the carcinogen producers are being joined by some developing nations who allege that the legislation violates the TRIPs rules of the WTO that provide protection of trademarks on internationally-traded products.  They claim that introducing the Australian legislation will cost jobs in their local tobacco industries. This is again a claim that makes me suspicious that the legislation is at least viewed by influential others as being potentially effective. I hasten to add that not all developing countries support this attack – Brazil and Uruguay strongly support the Australian legislation – indeed Uruguay has had battles with Phillip Morris itself on related issues. I know little about WTO trademark law and TRIPs but suspect that even if the legislation is inconsistent with these laws that a case for the legislation could be sustained under other GATT regulations that allow trade restrictions where a producer is dangerous to human health.  And that is something cigarettes certainly are.

The ethics of the developing country argument is that the livelihoods of poor farmers need to be balanced against the health benefits that Australians might enjoy if they smoke less.  I find this argument weak. The main health costs of cigarette smoking over coming decades will be in developing countries not in developed countries – most of the 5 million people killed by tobacco each year are in developing and middle income countries.  The big future fight should be to secure lower levels of smoking in developing countries.  This will not be assisted if these countries seek to protect local tobacco industries. A successful development strategy should not involve dependence on outputs that kill the citizens who are supposed to have their economic opportunities improved.

I hope the government holds its nerve on this one. There is a lot of opposition to the plain packing legislation from the carcinogen producers, the developing countries mentioned and, of course, those right-wing interest groups that derive part of their funding from the firms producing the carcinogens – the civic-minded Institute of Public Affairs has consistently challenged the legislation.  But this is probably a fight that needs to occur.  Australia is performing an international public service by initiating this fight and by pursuing it doggedly.  The Gillard Government – and the Coalition who have indicated their support for the legislation – deserve our appreciation for the determination they have shown.

BTW I’d be interested if readers had specific knowledge about TRIPs that they could contribute. I am working on the plain packaging issue at present.

6 comments to Carcinogen producers gain some developing country allies

  • Kirby

    Why not just sign a treaty with Uruguay which permits plain packaging of certain products? How would the High Court pick between competing treaties (of which Australia is a signatory to hundreds, surely there has to have been a conflicting clause sometime)? Might they leave it to the Executive to decide relative priority? Would the treaty entered into later trump the former?

  • hc

    Kirby, That might be so but, as I say, there are conflicts in the GATT rules anyway. Cigarettes do harm human health and that is grounds (I think) for restricting their sale. I don’t know however if violating trademarks is a legit restriction.

  • Drew

    If there’s no evidence it will do anything to reduce consumption, we should just do it anyway? Aside from the fact that infantilising the general public is extremely condescending, are there no other concerns? This sets a disturbing precedent (plain packaging for “unhealthy food”! Plain packaging for violent movies! Hell, they’re already starting with pokies: http://bit.ly/xEhL0r) and unless you’re fighting for beige against the unholy forces of visual stimuli then I’m hard pressed to come up with a reason why this might be desirable. It also makes it easier for counterfeiters to sell their wares (which, incidentally, contain more toxic heavy metals than brand name cigarettes: http://www.ncbi.nlm.nih.gov/pubmed/17011104).

    There’s nothing more to this than the signalling of disapproval of a socially unpopular behaviour.

  • hc

    I agree Drew their are extra health problems with illegal cigarettes. There are already known to be particular problems with ‘chop chop’. But the plain packaging can be “plain” but still difficult to imitate. The counterfeiting issue is something else from the issue of trying to mask brand names.

    On the issue of evidence, how can there be evidence on this? It has never been tried. It is mainly directed at youth however and it is plausible that they do respond to brand names.

  • Drew

    You’re right on the evidence point, all we have to go on are fairly flimsy experimental studies*, focus groups, etc. (Though considering the fact that even smoking bans of varying intensity had no effect on long term smoking cessation rates in many countries – Italy (http://bit.ly/xLp7DB), Scotland (http://bit.ly/wXjZ61), France (http://bit.ly/ymJLpn)- I think it’s reasonable to guess that it won’t do much). But my main concern is with the attitude of ‘we must by default do SOMETHING to harass all smokers and any objections is the work of the mustache twirling fatcats over at Big Tobacco’. Maybe packaging can be plain but difficult to imitate (I’m not sure how) but this will certainly, on net, make the counterfeiters job a whole lot easier.

    But smuggling is a side concern, the biggest issue is the precedent it sets. Anti alcohol groups are already using the ‘let’s dress our dislike of a particular behaviour in public health rhetoric’ to argue for plain packaging (see: http://bit.ly/yf5icR). And with the increasing demonisation of fat and salt and sugar, it wouldn’t surprise me to see calls for plain packaging of products containing excess amounts of these things in the next 5 years or so.**

    If the goal is to reduce the harms from smoking and not just to punish people for partaking in an activity that other people think they shouldn’t & companies for selling a product that some people disapprove of, then why are all the policies being proposed of the ‘ineffective and illiberal’ variety? Wouldn’t it be better to focus on things that have been shown to actually work in reducing harm? Both snus and e-cigarettes have been shown to be effective in smoking reduction and cessation (e.g. snus here: http://1.usa.gov/yuJezq & e-cigarettes here [PDF]: http://bit.ly/zBNYca) and yet a smoker who wanted to quit would have a difficult time finding them in Australia.

    You would think that with the overwhelming failure of the war on drugs the kind of heavy handed, punish-everyone-that-does-x approach would be shafted in favour of smarter harm reduction approaches, but maybe I’m being naive.

    *And even this suggests plain packaging might be ineffective at best, counterproductive at worst (see: http://www.acuity-intelligence.com/?p=951).

    **This raises even more concerns, at least w/r/t fat & salt. Australian government health guidelines recommend a diet low in fat but with plenty of bread and pasta, and yet there’s good evidence to suggest this is completely backwards (see: http://www.econtalk.org/archives/2011/11/taubes_on_fat_s.html). For salt too the government guidelines suggest that less is better, but this is by no means clear in the evidence (see: http://bit.ly/wsClxu “the third of people who eat the least salt die over three times as often as the third of folks who eat the most salt” & http://reut.rs/xv5xvA “Reducing salt in the diets of the general population may not have an overall positive health impact, according to a review of more than 160 scientific studies”).

  • Mel

    Drew, as a former smoker, I’m thankful for all that Government harassment.

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