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Tobacco Lobby

Tobacco companies ‘operating in shadows’

Tobacco companies are working through the courts and lobbying the European Commission to roll back rules on smoking that have taken years to bring into force, Children and Youth Affairs Minister James Reilly has warned.

He has written to the senior vice-president of the commission, Frans Timmermans, accusing it of “operating in the shadows” in its dealing with the tobacco industry.

Mr Reilly, who pushed through tough new EU legislation during Ireland’s presidency of the union three years ago, reminded Mr Timmermans that 700,000 people a year die from the effects of tobacco, 5,200 in Ireland.

He has urged the commission to comply with recommendations issued by the EU ombudsman, Emily O’Reilly, to publish all its dealings with tobacco lobbyists.

The former health minister has harshly criticised the commission’s claim that it doesn’t have to abide by the World Health Organisation’s guidelines on tobacco lobbying because they “are not legally binding”.

He accused it of hiding behind legalese saying it signed up to the WHO framework convention on tobacco control that includes protecting public health policies from the tobacco industry vested interests.

“And yet when it comes to the Framework Convention on Tobacco Control guidelines which seeks to ‘establish measures to limit interactions with the tobacco industry and ensure the transparency of those interactions that occur” the commission hides behind the position that the guidelines are not legally binding.

“The industry, with its multibillion euro resources has a major lobbying programme at work with the clear intention of hindering or rolling back progressive public health measures aimed at reducing the prevalence of smoking.

“They leave no stone unturned in efforts to influence decision-making,” he said.

The Government has passed the Regulation of Lobbying Act 2015 because citizens have the right to know what lobbyists are trying to influence government policy, he said.

“It is unacceptable that lobbyists, working on the EU Commission to further the interests of the tobacco industry can do so under the cover of regulations not being “legally binding”.

“It is not against the law for them to be transparent, but clearly it is against their culture. This needs to change,” he said.

Ireland will introduce plain cigarette packaging and he hoped the new graphic health warnings on packets will stop children taking up what he called “this killer addiction”.

“But look at the tobacco industry fighting this development in courts in Ireland, the UK and in Europe every step of the way. Their lobbyists must not be able to work on the EU commission while hidden in the shadows,” he said.

In his letter to Mr Timmermans he said the tobacco industry had a long and shameful record of concealing the truth to protect its profits.

The minister admitted that when he was working on the EU tobacco directive during Ireland’s EU presidency in 2013 that he was “deeply conscious of the lobbying of big tobacco, the meetings being sought and the influence being brought to bear on police being made in the best interests of public health”.

There were revelations at the time that Taoiseach Enda Kenny and Finance Minister Michael Noonan met tobacco lobbyists, despite Ireland signing up to the WHO tobacco convention.

“Lets have a high level of transparency when it comes to meetings with an industry which creates a product which prematurely kills up to one in two of its habitual users”, his letter to vice-president Timmermans concluded.

EU Commission Resisting Tobacco Lobbying Transparency, Watchdog Says

BRUSSELS (Alliance News) – The European Commission has ignored calls for more transparency in its dealings with the tobacco industry, a watchdog said Monday, ratcheting up criticism sparked by a 2012 lobbying scandal that ended the career of the bloc’s then health commissioner.

“This is a missed opportunity … to show global leadership in the vital area of tobacco lobbying,” European ombudsman Emily O’Reilly said in a statement. “It appears that the sophistication of global lobbying efforts by big tobacco continues to be underestimated.”

Health commissioner John Dalli left his post in late 2012 after being accused of staging confidential meetings with tobacco lobbyists and of knowing that an acquaintance was using Dalli’s name to solicit bribes from a tobacco company.

The commission – the EU’s executive – has an important role in setting EU legislation on smoking and tobacco products. Its clampdown on the harmful effects of smoking have led to intense lobbying efforts by the tobacco industry.

In November, O’Reilly said the entire commission – with the exception of Dalli’s former department – was not being proactive enough about publishing information on meetings with the tobacco industry.

This was in breach of World Health Organization (WHO) rules and guidelines on tobacco lobbying, she said at the time, recommending that details of all commission meetings with tobacco lobbyists or their legal representatives should be published.

The EU’s executive responded in January, rejecting O’Reilly’s findings and stating that it “complies in full” with WHO obligations. Its overriding principles regarding lobby groups are “transparency, integrity and equality of treatment,” the letter said.

Meetings with tobacco industry representatives are “very few,” and there is “no evidence that meetings have been kept ‘secret’,” the EU executive argued, in the response submitted by President Jean-Claude Juncker.

But O’Reilly said Monday that it was not enough to meet the minimum legal standards. “Public health demands the highest standard,” she added.

Corporate Europe Observatory, a campaign group that seeks to challenge big business, threw its weight behind the ombudsman.

“If the commission does not even take the risks of undue lobbying influence seriously for this most controversial sector, then how can the public have any trust in its overall ability to protect the public interest?” Olivier Hoedeman said.

EU watchdog raises alarm on tobacco lobbying

The European Commission is refusing to curb lobbying by tobacco firms in its ranks by not fully applying UN transparency rules, says an EU watchdog.

The EU ombudsman Emily O’Reilly said on Monday (8 February) that the Brussels-executive ditched her recommendations to publish online all details – including the minutes – of meetings with tobacco lobbyists or their legal representatives.

“This is a missed opportunity by the Juncker Commission to show global leadership in the vital area of tobacco lobbying,” she said in a statement, referring to commission chief, Jean-Claude Juncker.

The UN’s World Health Organisation bans public policy makers from fraternising in secret with tobacco firms under the so-called framework convention on tobacco control (FCTC).

The EU commission’s directorate for health publishes all its meetings and minutes online.

Other directorates do not.

It means tobacco lobbyists can exert pressure or influence in other areas of the commission where the FCTC is not being applied.

“It cannot be enough to adopt a restrictive view of what is expected from the UN FCTC or to justify lack of proactivity on the grounds that it has met the minimum legal requirements,” said O’Reilly.

Commission rebuffs claims

Her recommendations highlighted the commission’s legal services, which had dealings with tobacco industry insiders in the lead up to an overhaul of the EU tobacco products directive.

Michel Petite, a corporate lawyer for big tobacco firms at Clifford Chance, held talks with the commission’s legal services in September 2011 and September 2012.

Before landing a job with the London-based lawyers, Petite headed the commission’s legal service in 2008. A year later, he was appointed to the commission’s ethics committee on lobbying, a position he held until December 2013.

Transparency activists criticised his role on the ethics committee, as Philip Morris International is among the clients of Clifford Chance.

Petite also played a minor but crucial role in the events that saw John Dalli lose his job as the EU commissioner for health over tobacco-related bribery allegations.

The commission says it fully complies with the FCTC.

It says Petite is a legal expert and not an industry representative.

It says staff regulations, code of conduct rules, access to documents and other internal guidelines are good enough to ensure the integrity of policy and law making.

O’Reilly launched her inquiry in June 2014 after receiving a complaint from the Brussels-based pro-transparency NGO Corporate Europe Transparency.

Commission still hiding details of dealings with tobacco industry: the Ombudsman

The European Ombudsman, Emily O’Reilly, strongly regrets that the European Commission has chosen not to make its dealings with the tobacco industry more transparent in line with UN guidelines.

The Commission was responding to the Ombudsman’s recommendation to extend the transparency policy of DG Health to all DGs through proactive online publication of all meetings of all Commission staff with tobacco lobbyists.

Heavy suspicions have always been hanging above the Barroso Commission. As the Green/Ecolo Belgian MEP Bart Staes told New Europe, “in 2010, the secretary general of the Commission Cathrine Day met at least three times with representatives from the big tobacco companies Philip Morris and Swedish Match /…/ The same companies and representatives of tobacco lobbies held three other meetings with Barroso‘s personal cabinet.”

The tobacco industry actively lobbies even today across multiple DGs in order to advance its commercial interests.

The Commission, in its opinion on the Ombudsman’s recommendation, still says it meets its obligations under the World Health Organisation’s Framework Convention on Tobacco Control (FCTC).

However the WHO guidelines clearly state that ‘all branches of government’ come within the scope of the FCTC.

Emily O’Reilly stated: “I appreciate the significant work that the Juncker Commission has done to improve lobbying transparency, and its intentions to make further improvements.

“However this is a missed opportunity by the Juncker Commission to show global leadership in the vital area of tobacco lobbying. The Prodi Commission took a lead role in the development of this important UN Convention.

“Maintaining the status quo effectively means that future meetings of Commission officials with tobacco lobbyists may create distrust. It appears that the sophistication of global lobbying efforts by big tobacco continues to be underestimated.”

The complaint was brought by an NGO which claimed the Commission was not meeting its obligations under the WHO’s Framework Convention on Tobacco Control. The Ombudsman agreed, finding that the Commission’s approach to publicising meetings with tobacco lobbyists was, with the exception of DG Health, inadequate, unreliable and unsatisfactory. The Ombudsman was also concerned to find that certain meetings with lawyers representing the tobacco industry were not considered as meetings for the purpose of lobbying.

In her recommendation published in October 2015, the Ombudsman called on the Commission proactively to publish online all meetings with tobacco lobbyists, or their legal representatives, as well as the minutes of those meetings.

Transparency remains a permanent problem for the Commission’s dealings with the tobacco industry, and in the previous Commission Jose Manuel Barroso himself was accused by MEPs of playing for the tobacco lobby.

Brussels blocks Big Tobacco lobbying push

Cigarette makers tried to influence Commission deliberations through a backdoor.

The European Commission has derailed an attempt by the tobacco industry to use a low-profile industry standards organization to sway Brussels on proposed changes to cigarette packaging.

Big Tobacco planned to use the outside group as a Trojan horse to push its preferred packaging technology over that of its competitors, according to documents obtained by POLITICO. The Commission faces a looming deadline to implement controversial and expensive “track and trace” measures that are intended to fight tobacco counterfeiting and smuggling.

The tobacco companies’ move backfired, the documents show. A top Commission health official intervened to scuttle the campaign and told the European Committee for Standardization (CEN) to keep out of the way. The organization, established by industry to set common standards for consumer goods, backed down and said it would defer to the Commission.

The behind-the-scenes clash is the latest skirmish between the tobacco lobby and the Commission, and comes at a politically trying time for cigarette makers. It follows the adoption of new EU laws through the 2014 Tobacco Products Directive that force tobacco companies to change their packaging to make them possible to trace through the distribution chain. The Commission must also choose from a range of high-tech digital watermarks to prevent counterfeit.

Big Tobacco’s lobbying efforts are an attempt to promote the industry’s in-house technology, called Codentify, over systems pushed by the world’s largest printers and packaging companies.

Codentify was developed by a consortium of the world’s top four tobacco companies: British American Tobacco, Imperial Tobacco Group, Japan Tobacco International and Philip Morris International.

A senior Commission official said the Commission is waiting on the results of a second feasibility study and hasn’t made up its mind about which one to back. In the meantime, Commission officials refuse to see any lobbyists on the issue, tobacco lobbyists say.

The unusual and complex fight, which took place out of the public eye, highlights the creative lengths that the tobacco industry is going to in order to influence the EU when officials in Brussels are under political pressure to keep them at arm’s length.

It comes against the backdrop of another battle playing out in European capitals over the introduction of so-called “plain packaging” for tobacco products. The 2014 reforms did not mandate plain packaging but allowed EU member governments to adopt their own legislation to remove branding from cigarette packets.

Backdoor lobbying push

According to tobacco industry insiders who have spoken to POLITICO, the four companies backing Codentify, acting in a consortium called the Digital Coding and Tracking Association, were behind a push to involve CEN. The organization established a working committee to examine packaging standards under consideration in what was an attempt to influence the Commission’s own decision-making process.

One of three European, independently-run standardization organizations to have been recognized by the EU, CEN represents 33 national organizations. Its contributions often shape the implementation of EU laws across the bloc.

CEN announced its plan to examine packaging standards last July. The decision followed a formal request from a national standards body, Belgium’s Bureau for Standardization, but sources with direct knowledge of the decision said that request was driven by the tobacco industry’s Digital Coding and Tracking Association.

None of the four tobacco companies behind the Digital Coding and Tracking Association responded to requests for comment. The European Commission declined to comment.

While the Commission’s review considered a wide range of technologies and viewpoints, CEN documents reveal that the proposed committee would have focused on packaging. CEN recommended that a range of European groups with ties to the industry — as well as the Digital Coding and Tracking Association — be part of the panel.

Four of the seven industry bodies listed in CEN’s proposal said they had no idea that their organizations had been put forward and some expressed concern about being included.

“We were not involved in CEN’s request to establish this committee,” said Henri Barthel, the vice president of GS1, an industry organization that deals with global standards for consumer goods, including tobacco products. “They did not ask us to participate. It was not our request.”

“The initiative to request the creation of a CEN technical committee came from the [tobacco] industry,” Barthel added. “The [Belgian Bureau for Standardization] wouldn’t simply wake up one morning and decide to set up a committee.”

The Bureau for Standardization didn’t respond to a request for comment.

Some tobacco industry groups were surprised to find they had been named. “I was not aware that [we] had been proposed as a member of any such committee,” said Antonella Pederiva, from the Confederation of European Community Cigarette Manufacturers.

Others objected to CEN’s exclusion of non-industry groups, in spite of its stated commitment to open the process up to “all stakeholders,” with a particular reference to “law enforcement, customs and other market surveillance authorities.”

“We do not understand why CEN has not questioned the involvement of [the tobacco industry] in the setting up of a ‘possible’ committee,” said members of the Smoke Free Partnership, an NGO that wrote a scathing letter to CEN over its plans to establish a committee.

“Let us remind you that economic operators have been, and continue to be, involved in the illegal trade of their own products,” the letter reads, referring to long-standing accusations that the tobacco industry had been aware of, and in some cases encouraged, the smuggling of its products to dodge taxes.

Smoke Free Partnership Director Florence Berteletti said she had no objection to the creation of common standards for tracing EU cigarette packages, but such decisions “should be made by independent experts, not by the tobacco industry trying to push for Codentify.”

Commission strikes back

While the correspondence obtained by POLITICO does not include the response from Andrzej Rys, a director at the Commission’s directorate general for health and food safety, CEN’s letter refers to Rys “expressing some concerns” about the “incompatibility of standardization processes” and the Commission’s legislative timetable.

“It is of course not our intention to duplicate any technical work or procedure, or to infringe any legislation,” CEN’s Elena Santiago Cid wrote to Rys. “However, your conclusion regarding the (in)compatibility of our standardization process and the legislative ones seem to be contradictory to [EU regulation].”

Industry insiders suggest CEN had not understood the political implications of establishing a technical body that would shadow work being done by the Commission. Rightly or wrongly, officials saw CEN’s push as interference by the tobacco lobby in the regulatory process and made sure the proposed committee never saw the light of day.

By late November 2015, CEN had backed away from its demands, telling the Commission it would abandon plans to form the technical committee and wait until the Commission finished its own consultations.

“For CEN … this is a question of principle,” Santiago Cid told POLITICO in an email. “We are convinced about the benefits of a coherent European legal framework, the voluntary nature of European standards and the complementary and different roles of standards and legislation.

These concepts did not seem to be well differentiated in the … legal documents.”

This backflip left industry observers aghast. “Frankly, it does not happen that often that the Commission manages to put a technical committee on ice,” said an expert working on standards.

Another prominent CEN member and tobacco lobbyist said the Commission saw the standards organization’s intervention in political terms, while in this person’s view the industry wanted to engage in the technical side of the “track and trace” requirements.

“We are going to have to redesign our packaging machines to include identification marks and number systems — we need a whole IT system behind us,” the lobbyist said. “We are facing a May 2016 deadline and it would have been nice to have some idea of what is expected of us.”

Lobbyists said the tobacco industry has been left in the dark about the changes. “What is always lost in the heat of the debate is whether changes are technically possible or not,” the lobbyist said.

“It might be a great idea — but what is its impact on industry?”

Other observers said the politics of the decision before the Commission can’t be ignored. “I am not surprised the Commission argued against CEN’s request,” said Barthel, from GS1. “At the end of the day, this is a business and political issue, rather than a technical one.”

Ukrainian officials appear to be lobbying for tobacco industry to keep taxes low

Ukrainian officials appear to be lobbying on the side of the tobacco industry once again.

On Oct. 5, the Ministry of Finance proposed a 40 percent tax increase on cigarettes – bringing the price in line with inflation, like any other consumer product.

The parliamentary tax and customs committee, however, has countered the ministry’s proposal, arguing for a 20 percent increase – about half of the official inflation rate.

In other words, such a small increase will effectively make Ukraine’s cheap cigarettes even cheaper, which spurs smoking. Nearly 100,000 people die prematurely each year in Ukraine from smoking-related diseases.

The sharp currency devaluation – in which the Ukrainian hryvnia has lost two-thirds of its value in two years – has allowed lawmakers to promote a tax decrease as a tax hike.

In 2014, tobacco companies paid taxes of Hr 240 per 1,000 cigarettes and in 2015, this rose to Hr 300, according to a video released by industry expert Konstantin Krasovsky on Dec. 7.

The average exchange rate in 2014 was Hr 12/$1; thus far in 2015 it has been Hr 22/$1. This means the tax amounted to $20 per 1,000 cigarettes in 2014 compared with $13.6 in 2015.

Therefore, if the increase in 2016 is only 20 percent, $15.1 will be paid per 1,000 cigarettes at the current exchange rate of 23.75; for the 40 percent hike, the tax reaches $17.7 – raising the price of a cigarette pack by Hr 5 to Hr 8, or merely $0.21-$0.29.

Ukraine has some of the cheapest, lowest-taxed cigarettes in Europe, fueling illegal smuggling and contributing to higher smoking rates, poor health and early death.

Ukraine has some of the cheapest, lowest-taxed cigarettes in Europe, fueling illegal smuggling and contributing to higher smoking rates, poor health and early death.

“As a comparison, bread has seen a 70 percent price increase whereas cigarettes have only seen a 20 percent price increase. Therefore cigarettes have become more affordable,” said Andrey Skipalskyi, president of the Ukrainian Center for Tobacco Control. “A 40 percent (tax increase) is already a compromise and doesn’t include the real price increase.”

In his video, Krasovsky argues that if the excise tax increases by 40 percent, annual revenues to the state budget will increase by Hr 7 billion – a figure he based on a 10 percent decline in the number of smokers. But if parliament decides on a 20 percent increase, the budget will receive Hr 4 billion, a figure which relies on demand remaining the same.

The tobacco industry is famous for its underhanded lobbying tactics.

One of the difficulties for anti-tobacco groups is that there is no definition of lobbying in Ukrainian law.

“You can’t track the money or the members of parliament being paid…So what we do is monitor their statements and if someone is overtly pro-tobacco we shame them by calling them tobacco lobbyists,” said Skipalskyi.

According to Skipalskyi, the tobacco companies in Ukraine in recent years have fought hard against any increases in taxation. Higher taxes on cigarettes have been proven to be very effective in getting smokers to quit and preventing people from even starting.

Skipalskyi said the tobacco industry is on good terms with parliament’s tax committee head, Nina Yuzhanina, a member of the Bloc of President Petro Poroshenko, who defends her position as “pro-business,” according to Krasovsky and Roman Nasirov, her predecessor who is now head of State Fiscal Services.

Nasirov has argued against sharp tax increases on cigarettes , saying they will exacerbate Ukraine’s problem with illicit trade. But anti-tobacco groups accuse Nasirov and other officials of using this as an excuse.

“Every year they keep repeating the same mantra that it would increase illicit trade…It’s very important to separate illicit trade and tax policy. It’s up to the customs officials to police illicit trade on both sides. In Ukraine and in Poland,” said Skipalskyi.

Likewise Krasovsky pointed out that the problem with illicit trade is with cigarettes manufactured in Ukraine, not cigarettes coming from abroad.

An investigation conducted by investigative journalist Vlad Lavrov in 2009 asserted that the cigarette manufacturers in Ukraine are complicit in the illicit trade – estimated to be worth $2.1 billion a year. The investigation found that manufacturers produce a 30 billion cigarette surplus because of the country’s cheap production costs, which they then sell to smugglers at the same price as to a legal wholesaler.

Skipalskyi told the Kyiv Post that only the introduction of expensive tracking systems would allow customs officials to trace cigarettes back to a particular factory.

Japanese Tobacco Incorporated, Philip Morris and British American Tobacco, three of the four biggest manufacturers in Ukraine, said they only sold to licensed distributors.

The Ukrainian budget has benefitted significantly from tax increases on cigarettes. Between 2008 and 2015, the tax on cigarettes increased almost 10 times — from Hr 29 to Hr 300 – and state revenue increased from Hr 3.6 million to Hr 18.1 million.

Besides the revenue boost, higher cigarette taxes improve public health. As prices rose, according to Ukrainian State Statistic Service, the number of smokers in Ukraine decreased from 10.1 to 7.7 million people.

Finance Minister Natalie Jaresko agrees. In a statement on Dec. 8, Jaresko told reporters:

“The question of tax increases is painful one. However, from the point of view of the country’s health, I can’t not talk about it, because in every country excise tax policy is considered together with the health policy of the country. Because money from our budget also goes to health care,” said Jaresko.

This is a big step according to Skipalskyi: “Before Jaresko, I had never heard a minister view taxes in terms of health benefits.”

Krasovsky, a veteran anti-tobacco activist, said the government’s position is more important than that of parliament committees when lawmakers vote. Tobacco companies are producing more now in anticipation that the tax will go up next year, Krasovsky said, so Ukraine’s state budget won’t see benefits right away.

While Japan Tobacco International did not comment, Philip Morris and British American Tobacco said that tax increases should be gradual and take consumer income into account.

Kenya: Lighting Up

Last year, the British parliament, despite fierce lobbying from tobacco companies, decided that from May 2016 cigarettes would be sold only in plain packaging in the UK.

Anti-smoking campaigners in that country were quick to declare it as the latest nail in the coffin of an industry that has seen consumption of its products shrink inexorably in the West over the past three decades.

But while it is true that health concerns, public education, and increasingly stringent controls on the advertising, sale and use of tobacco have brought about that decline in North America and Europe, anyone thinking to write the obituary of Big Tobacco had better think again, because elsewhere in the world, especially in the developing world, smoking is increasing dramatically.

Nearly 80 percent of the world’s one billion smokers now live in low- and middle-income countries, a figure that continues to rise year on year. In China, for example, an estimated 350 million adults are hooked on tobacco; smoking in Indonesia has more than quadrupled in the past four decades; and in Russia around a third of all teenagers will have tried their first cigarette by age 12.

But it is Africa that is probably most critical to the long-term future of the multinational tobacco firms, because it is relatively unexploited. For all the continent’s other woes, Africa has traditionally had some of the lowest smoking rates in the world, largely because most people can’t afford it. That, though, is now changing as parts of the continent become more prosperous, disposable incomes increase and populations mushroom.

It has become an enticing target for a profit-hungry industry as other routes to growth have been closed off by rules, directives and worries about life-threatening diseases.

With the most smokers in sub-Saharan Africa, Kenya is one of the biggest prizes on offer.

The problem for the industry is that Kenyan health officials are as aware as anyone else about the dreadful menace smoking poses to their nation’s health. Kenya was the first African nation to ratify the World Health Organization’s Convention on Tobacco Control. One of its key sections, Article 5.3, says that countries must “protect their tobacco control and public health policies from commercial and other vested interests of the tobacco industry”.

It gave officials the impetus to work with legislators on drafting strict regulations. These include putting graphic images on cigarette packets, banning advertising, promotion and sponsorship of tobacco and the imposition of a 2 percent health tax on every packet.

Professor Peter Odhiambo, chairman of the Tobacco Control Board, said: “We are already sitting on an epidemic of the cancers from tobacco. The tobacco problem is the most silent undeclared disaster in Kenya and therefore the more we delay the more we will see Kenyans dying.”

But as investigative journalist Purity Mwambia and filmmaker Giovanni Ulleri have been finding out, the industry hasn’t been slow to fight back, going to court in Kenya to argue about the legality of the rules and the proposed timetable for their introduction.

And now, most recently, disturbing allegations about the bribery of government figures have begun to emerge.


By Giovanni Ulleri

Around the town of Migori, beside the dusty country roads, you’ll find them: groups of farmers sharing a social moment away from their football pitch-sized plots of tobacco. Here, in one of the most important agricultural regions in Kenya, tobacco is king but, as I discovered in making Lighting Up, this is a crop that demands a high price from those who grow it and those who smoke it.

When I got a phone call from my former boss over the summer about me directing a film on tobacco in Kenya, I hesitated before saying yes. Not because I didn’t want to do it, but because of a potential conflict of interest; I was a former smoker – and in my eyes, once a smoker, always a smoker.

I was fully aware of all the known cancer risks of smoking and I had tried to quit many times over the years, but like most addicts I kept falling off the wagon and stealing a cigarette from friends. I had starting smoking as a stupid act of rebellion as a teenager behind the bike sheds at school and here I was heading off to Kenya to see how they have been trying to prevent other youngsters from doing what I did – lighting their first cigarette and starting down a path that could eventually lead to an untimely death.

On arriving in Nairobi and meeting up with my colleague Purity Mwambia, the first thing I noticed walking around the streets was how few people smoked in public.

Unlike any high street in the UK, where you see smokers huddled up in doorways of offices and in the cold and rain trying to light up, here in Kenya you are allowed to smoke only in designated smoking zones which, I imagine, makes the city centre of Nairobi one of the largest no-smoking zones in the world.

There’s even a 50,000 Kenyan shilling ($490) fine if you are caught smoking outside these zones. But despite this, eight billion cigarettes are smoked in Kenya every year and the government is trying to introduce new regulations to try to prevent what it fears is just around the corner: a veritable host of tobacco-related diseases.

However tobacco companies view Africa as one of their largest growing markets.

They are eager to keep their market share and to persuade policymakers, not to penalise them. We spoke to a young MP, Stephen Mule, who sits on the Kenyan parliamentary health committee. He told us that he was offered an expenses-paid fact-finding trip to the UK from Kenya’s largest tobacco manufacturer, British American Tobacco. What BAT didn’t know was that Mule’s father had died of a tobacco-related disease and nothing would ever weaken his resolve to introduce strict tobacco control regulations back home.

I also met his mother, who told me how she looked after her dying husband and how she tried to get him to stop smoking. She is rightly proud of her son, whose aim is to stop other Kenyan families from suffering the way his family did caring for a smoker.

But everyone involved in tobacco regulation in Kenya knows they have a fight on their hands. They are up against a rich and powerful industry, battle-scarred from years of similar confrontations in Europe and the US and determined to protect its burgeoning African businesses from government interference.

The more we began to look into this story, the more we began to realise exactly what that determination meant in practice.

Tobacco industry lobbying: the scandal of the century

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Brussels must resist lobbying by the tobacco industry

Emily O’Reilly

Lobbyists do a very straightforward job. They try to influence legislators to do things, or not to do things, that affect the bottom line of the people who pay them.

In 2012, the European Commission did something likely to affect the bottom line of the tobacco industry. It proposed a new Tobacco Products Directive aimed at reducing smoking rates across Europe, especially among young people.

And that was the starting pistol for hundreds of tobacco industry-hired lobbyists to fan out across Brussels and the member states, in a bid to curtail the potential commercial damage the new law could cause them worldwide.

Brussels is now a legislative powerhouse, and thus a hive of lobbying activity. Every morning, dozens queue for access passes in the European Parliament, while across the town, formal meetings fill diaries and countless informal meetings take place over coffee, lunch and dinner, as they seek a toehold on some part of the legislative ladder that will enable them to effect some change favourable to their clients.

Most of the biggest corporations in the world, from Google to British American Tobacco, to Shell and BP, have established a presence in the cobblestone streets around the EU quarter. With that has come an increasing stream of former EU officials going through the public service door and into a frequently lucrative private one. Highly prized insider intelligence and access is the currency that seeps through much of the legislative work of the EU.

By the time the Tobacco Products Directive finally passed into law two years later, the European Parliament, Commission and Council had been subjected to one of the most intense lobbying campaigns witnessed by the three institutions. It was, one commentator said, “the most lobbied dossier in the history of the EU institutions”.

And while the directive that emerged was generally well received as a significant contribution towards tobacco control and the safeguarding of public health, due to the hard work of many working on the issue, it was also clear that the lobbyists had won some victories along the way.

A softening of a plain packaging clause – meaning that it was left to member states to introduce such a measure if they chose – led to the current case taken by Japan Tobacco against the Irish Government’s decision to do just that.

The UK is being similarly sued by Philip Morris and British American Tobacco, and it in turn has brought a case to the ECJ to get clarity on certain aspects of the directive. Issues such as intellectual property and the right to free speech form part of the legal challenge.

The intent of the lobbyists was twofold. One, obviously, was to water down the original commission proposal, the other was to delay its passage to a point where perhaps a more favourable political climate might further dilute the bottom line impact of the proposed measures.

Now publicly available tobacco industry documents and evidence from MEPs and officials, testify to a massively well-funded and highly sophisticated campaign.

The approach was tailored, with bespoke approaches for individuals, institutions or ministers depending on cultural or political sensitivities and susceptibilities.

No argument was either too alarmist or too cynical to be discarded, whether wholesale unemployment of French tabac owners, or the cost to creaking health services of people actually living longer. The sophisticated use of “front groups” was another favourite tactic.

Strange things happened along the way, including the sudden and strange departure of the then EU health commissioner John Dalli. This threatened to derail the whole process ahead of the strongly anti-tobacco Irish presidency. Even stranger were break-ins to the Brussels offices of three anti-smoking NGOs which had material swiped from their databases.

As European Ombudsman, my involvement began when I received a series of complaints claiming that the European Commission had not been as transparent as it should be when it came to its dealings with tobacco lobbyists.

The complaints alleged that details of certain meetings had not been proactively published and that this was not in compliance with the 2003 UN Framework Convention on Tobacco Control, which the EU had signed up to in 2005. Indeed the commission itself played a leading role in pushing for this convention under then EU health commissioner David Byrne.

That convention is strikingly clear in its refusal to see the tobacco industry as a “normal” commercial interest to which “normal” rules of commercial engagement and commercial protection should apply.

Using highly-charged vocabulary, including the words “epidemic” and “devastating”, the industry is characterised as a pernicious one, severely damaging to global public health, and one to which as little quarter as possible should be given by governments and regulators.

Alongside other non-binding guidelines, the UN convention instructs all member states who signed up to it, and all EU institutions, to limit their interactions with the tobacco industry and to make any such interactions as transparent and as accountable as possible.

There is no doubt but that the commission was heavily lobbied and by extremely smart people – including lawyers – who used a belt and braces approach when it came to attempts to dissuade it from certain lines of action.

An examination of documents which outlined the industry approach showed that one tactic was to – in effect – shake the commission’s confidence when it came to the legality of certain crucial directive elements.

No institution relishes a trip to the courts to account for its work, and the lobbyists were well aware that this was a potentially fruitful tactic.

It would appear that, at the very least, it may have worked to slow down the passage of the directive.

My inquiry included an inspection of the commission’s files. We found that the Barroso Commission had not sought to conceal meetings, but that details of certain meetings were revealed only when an access, or FOI, request was made.

We further found that while the lead commission department, the directorate general for health, did proactively release details of all its contacts with the tobacco lobby, other directorates general did not.

The most interesting finding perhaps was that officials, when asked, revealed that they did not consider contacts with lawyers representing the industry to be meetings with lawyers acting potentially as lobbyists.

At the very least, this failure to see lawyers as potential lobbyists was naïve.

The most cursory examination of lobbying methodology, and particularly when it comes to regulatory affairs, shows how valuable lawyers are to the process.

Most websites of the more influential lobbying firms in Brussels demonstrate a proud – and far from hidden – showcasing of their hiring of former commission and other EU-insider lawyers, clearly valued for their knowledge of how the system works, and, no doubt, of how it can be tweaked in their new employer’s interests.

This so called “revolving door” phenomenon has been the basis of another ongoing inquiry by my office.

My recommendations to the commission, published earlier this week, are simple: that all of the directorates general should proactively release details of contacts with the tobacco industry, just as the directorate general health does, and should recognise lawyers as potential lobbyists and not as a separate caste.

It must be noted that the EU Commission in power since November 2014 under the presidency of Jean-Claude Juncker has made several positive steps towards more lobbying transparency. This is an example to other EU institutions, and indeed is now at a level of transparency better than most EU member states.

However the commission is the EU executive, it has great responsibilities and must lead by example.

To some observers, all of this might appear either abstract or high-minded. But recent revelations, for example, about Volkswagen’s deliberate concealment of the actual emission rates of their cars, shows the real-world cost of regulatory failure.

Over time, details may well emerge of how lobbyists for the car industry also worked to try to water down public-interest initiatives to safeguard the environment and public health.

How many more lives might be saved or public health further safeguarded if the Tobacco Directive had been even stricter, if clever lobbyists hadn’t been able to nibble around its edges?

The commission says that it believes it has been faithful to the UN convention and that in any event, the guidelines are not legally binding.

The former, in my view, is not the case, and the latter should not matter.

I do believe the commission has the best interests of citizens at heart and, while full of intelligent, hard-working people, I also believe it needs to engage those citizens more fully in its work by alerting them to the forces that seek to steer the commission in a direction in which perhaps it should not go.

The more transparency there is around lobbying, the more that an engaged civil society can work with dedicated public servants in the EU, to ensure that clever, well-resourced industry agents do not upset the balance between the safeguarding of a public interest and the right of an industry to safeguard its profits.

Emily O’Reilly is European Ombudsman

Big Tobacco’s Staunch Friend in Washington: U.S. Chamber of Commerce

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