The tobacco industry is doing its utmost to deter Slovenia from introducing plain cigarette packaging – it must not succeed.
When it comes to protecting public health, countries around the world have recently generated true momentum to save lives by turning the tide on tobacco use.
Many countries have implemented policies requiring tobacco products to be covered with large graphic warning images and mandated “plain” or standardised packaging to reduce the attractiveness and appeal of tobacco products.
The Slovenian government’s recent bold decision to put an anti-tobacco law to parliament that includes plain packaging, larger health warnings and a ban on the display of tobacco at the point of sale poises Slovenia to lead the region by joining the ranks of those nations fighting against the tobacco companies, and winning.
If Slovenians are to realize the benefits of living a healthy, tobacco-free life it is critical that MPs pass the law when it heads to parliament.
Tobacco use, projected to kill 1 billion people worldwide this century, is the world’s leading cause of preventable death. The tobacco industry, however, has made it clear that it has no intention of voluntarily abandoning a sinister business model that depends on millions of new, largely youth consumers – cynically referred to by the industry as “replacement smokers” – to take up tobacco annually to replace those that die from tobacco-related illnesses.
Despite filing multiple legal and trade challenges against strong anti-tobacco laws, the tobacco industry has been repeatedly defeated and isolated in domestic and international courts, as well as by trade organisations.
A prominent Slovenian intellectual property expert, Bojan Pretnar, has appeared in the media, made submissions to parliament and written a legal analysis opposing plain packaging, suggesting that the tobacco industry will sue and expose the Slovenian government to the risk of paying large sums in damages.
The flawed legal arguments he puts forward are the same as those used by the tobacco industry elsewhere.
His suggested remedy – to carve plain packaging out into a separate bill – mirrors the delay tactics the tobacco industry has used in other countries.
Rather than being dissuaded by tobacco industry threats, Slovenia should look to the outcomes of numerous cases where these same issues have been litigated in other countries.
In Britain, a tobacco industry legal challenge and subsequent appeal brought by British American Tobacco, Imperial Brands, Japan Tobacco International and Philip Morris International was dismissed last May and most recently in November.
The High Court judge in the case criticized the tobacco companies’ arguments and experts. Those trying to argue against plain packaging in Slovenia, are now relying on and using these same discredited arguments and experts.
In Australia, where the High Court dismissed a constitutional challenge to plain packaging laws in August 2012, a Philip Morris International legal claim under the Hong Kong-Australia bilateral investment treaty was dismissed in December 2015.
In France, both the Constitutional Council and the Council of State upheld plain packaging legislation following legal challenges.
In Uruguay, a Philip Morris International legal claim regarding packaging restrictions made under the Switzerland-Uruguay bilateral investment treaty was dismissed in July 2016.
In the European Union, the Court of Justice in May 2016 dismissed legal challenges brought by British American Tobacco and Philip Morris International and supported by Japan Tobacco International and Imperial Brands to the provision in the new Tobacco Products Directive that explicitly provides 28 EU countries with the option of implementing plain packaging.
In fact, tobacco companies have lost every legal claim against plain packaging in national, regional and international courts. In the UK challenge, the judge wrote: “In my judgment the qualitative evidence relied upon by the [government] is cogent, substantial and overwhelmingly one-directional in its conclusion” that plain packaging will be effective in meeting its objectives.
He added that the tobacco companies’ body of evidence “does not accord with internationally recognised best practice.”
Research conclusively shows that effective warning labels increase public knowledge of smoking risks, and can motivate smokers to quit, discourage non-smokers from starting and keep ex-smokers from starting again.
Standardised or plain packaging reduces tobacco product attractiveness and appeal to consumers, especially the young, increases the noticeability and effectiveness of the picture health warnings, and reduces the likelihood that product packaging misleads consumers about the harms of smoking.
A recent study by the Cancer Institute in New South Wales found that young Australians, aged 12 to 24, believe plain packaging made them less likely to take up smoking.
The group included ex-smokers, non-smokers, and experimental smokers. All national data sets show that smoking rates declined significantly since Australia introduced plain packaging.
One of the main but flawed arguments used to oppose plain packaging is that it will cause an increase in illicit or counterfeit tobacco products. The tobacco industry tries to make this claim when it opposes other measures, such as larger health warnings or advertising bans. But even the tobacco industry cannot produce any evidence to support this claim. In Australia, the illicit market has remained at the same level and no counterfeit “plain packs” have been found in four years.
Mandating effective warning labels and plain packaging for tobacco products are among the most effective steps that Slovenia and other countries can take to communicate the dangers of tobacco products, lessen their attractiveness and appeal, and reduce tobacco consumption, thereby protecting citizens.
We are at a critical juncture. Bold action to protect public health is needed and now is the time for countries to join the global movement and stand up to the tobacco industry.
Robert Eckford is the Associate Director of Trade and Investment Law for Campaign for Tobacco-Free Kids, an international organisation leading the fight to reduce tobacco use.
The opinions expressed in the Comment section are those of the authors only and do not necessarily reflect the views of BIRN.