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June 28th, 2011:

Dodgy data enlisted in the propaganda war against plain packaging of cigarettes

http://blogs.crikey.com.au/croakey/2011/06/28/dodgy-data-enlisted-in-the-propaganda-war-against-plain-packaging-of-cigarettes/

June 28, 2011 – 10:25 am, by Melissa Sweet

Professor Simon Chapman writes:

This week British American Tobacco Australia (BATA) launched its latest salvo in its propaganda war against plain packs.

new website allows visitors to click on any federal electorate (“Find your electorate”).

Once inside a selected electorate we read the estimate of illegal tobacco sales, with tax foregone derived from data compiled by Deloitte in 2011.

When you estimate illegal sales, you have to base it on survey data of what smokers tell you.

BATA are thoughtful enough to link to the report itself and on page 20, we read that Deloitte sourced Roy Morgan data gathered for BATA and that at  3.1.2.1 “Key requirements of sample:  Adult participants who qualified for the survey satisfied the following criteria: Aged between 18-64 years.  Resided in Sydney, Melbourne, Brisbane, Perth or Adelaide.”

On page 39, we can see that just 949 smokers completed the survey in these cities about whether they ever used illicit tobacco.

So BATA have taken city data and applied it to every electorate around Australia.

Apparently, smuggled tobacco is as easy to buy in Oodnadatta as it is in Redfern, Toorak or Vaucluse. It’s just the same with all consumer goods, right?

Deloitte seemed prescient when it handed over the report to the tobacco industry. A caveat reads “ No one else, apart from British American Tobacco Australia Limited, Philip Morris Limited and Imperial Tobacco Australia Limited are entitled to rely on this Report for any purpose.”

That would include .. .well … everyone else.

Description: http://blogs.crikey.com.au/croakey/files/2011/06/tobacco-600x167.jpg

• Simon Chapman is professor of public health at the University of Sydney

***

• Meanwhile, over at The ConversationDonald Rothwell, professor at the ANU College of Law, analyses the case that Philip Morris is launching against plain packaging under Australia’s bilateral investment treaty with Hong Kong.  He doesn’t give the company much chance of success.

Sex, Lies & Cigarettes

28 June 2011

http://current.com/shows/vanguard/episodes/season-five/sex-lies-and-cigarettes/

The Smoking Baby. The 2-year-old is more than just a YouTube sensation. He’s also become the unwitting poster child for a 21st century showdown. Vanguard correspondent Christof Putzel travels to Indonesia — the land of smoking toddlers and cigarette sponsored everything — where the stage is set for a David vs. Goliath battle as a small, underfunded group of concerned citizens battle Big Tobacco and a government drunk on profits and denial. “”Sex, Lies & Cigarettes”” charts Big Tobacco’s attempt to expand its reach into Indonesia, which by all accounts has become the “Wild West” of cigarette marketing and promotion.

NZ monitors Australian plain packaging bid

28 June 2011

http://www.heraldsun.com.au/news/breaking-news/nz-monitors-australian-plain-packaging-bid/story-e6frf7jx-1226083752647

THE New Zealand minister who wants cigarettes sold in plain packets says she won’t be deterred by threats of legal action by a tobacco company against the Australian government.

However, Associate Health Minister Tariana Turia can’t confirm the government will go ahead with the policy.

“We’re keeping an eye on Australia, we want to align our work with the work they’re doing over there,” she told One News.

“It’s something that needs to be looked into really carefully – we don’t want to get ourselves into a situation where we’re wasting a lot of taxpayer money fighting these tobacco companies because they’re incredibly wealthy.”

Philip Morris has served a notice of legal claim on the Australian government, which sets a mandatory three-month period for the two sides to negotiate an outcome.

“Failing that, we aim to go ahead with a compensation claim for the loss to our business in Australia that would result from plain packaging,” the company said.

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Plain packaging in Australia is due to start in a year’s time, which would make it the first country in the world to enforce the anti-smoking measure.

The action Philip Morris is taking is under a trade agreement between Australia and Hong Kong, and New Zealand has a similar treaty which covers intellectual property such as trademarks.

Philip Morris is arguing its trademark is protected and plain packaging will be detrimental to it.

Green Party co-leader Russel Norman says Philip Morris could use the same tactic against New Zealand.

“It shows how dangerous these investment rights treaties are when a multi-national company has more rights than a sovereign government to regulate in the interests of public health,” he said.

Should Philip Morris win, the Australian government could have to pay billions in compensation.

The Greens, and academic Jane Kelsey, are also concerned that the Trans-Pacific Partnership (TPP) which is being negotiated could cause similar problems.

“We call on the government to release the draft text of the intellectual property section of the TPP talks with the USA,” Dr Norman said.

“We need to know what rights our government is handing over to Philip Morris in those negotiations.”

The Public Health Association (PHA) said it was “appalled” by news of the legal action.

“It is beyond immoral that a business that sells addictive killers to young people is now threatening court action,” said PHA national executive director Dr Gay Keating.

“The PHA applauds Canberra for its courage and leadership in standing up to the bully tactics and hopes the New Zealand government is watching closely.”

The Smokefree Coalition said the industry knew plain packaging would hit it hard, and that was why it was “pulling out all the stops”.

“We expect our leaders will show the same guts and backbone when those threats start over here,” said coalition executive director Dr Prudence Stone.

Cancer Society chief executive Dalton Kelly said cigarette companies could see the writing on the wall.

“Smoking is rapidly becoming a thing of the past. Australia is leading the world by introducing plain packaging and I hope New Zealand is not far behind.”

Big Tobacco v Australia: Philip Morris jumps the gun on legal challenge

It is far from clear whether Philip Morris’ tactic against plain packaging will succeed. AAP

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In the latest salvo in the fight over plain packaging for tobacco products, Philip Morris is launching legal action under Australia’s bilateral investment treaty with Hong Kong.

The key aspect of Philip Morris’ claims against the Australian government is that the proposed plain packaging law results in unreasonable measures that impair the enjoyment of an investment.

Investment is broadly defined under treaty to include intellectual property.

Bilateral investment treaties seek to facilitate investment between two countries. They basically enhance business activities between the nations.

The treaties provide guarantees of non-discriminatory treatment between investors from the two countries; protect those investors from unreasonable measures in terms of their investment; and provide mechanisms for dispute resolution.

Disputes are a growth area in such treaties – which are themselves going through a boom period – as they allow investors to trigger dispute resolution mechanisms.

Investment disputes are normally heard by the International Centre for the Settlement of Investment Disputes (ICSID), which is supported by United Nations arbitration conventions.

So, the argument Philip Morris might seek to make is that the plain pack laws will unreasonably impair its ability to enjoy the intellectual property it has established with its design and properties in Australia.

But while there are mechanisms under that treaty to resolve disputes such as these, the legislation isn’t operative yet so I’m not sure the the company’s claim has any basis.

What’s more, the government says any legislation it passes will only come into effect on January 2012.

Technically, there’s no dispute until then, but Philip Morris could argue that the government has announced its intention to introduce the legislation, so it would be prudent for both parties to engage in a conversation now.

In other words, the claim is not consistent with provisions of the agreement but prudence would dictate that it would be advantageous for both sides to start to work out a solution to the impending issue.

And the government could seek to resolve the concerns that Philip Morris is raising.

One way forward for the government is to say “We’re going ahead with this and if you wish to sell your products here, you’ll have to comply with the proposed legislation”.

If the company wants to claim for its intellectual property, the government could offer a monetary settlement and this might be Philip Morris’ tactic in raising this issue and having it discussed in advance. It could be a pre-emptive move.

If there were a dispute, the agreement provides that there has to be a three-month cooling period between the time the dispute is raised and the formal commencement of proceedings.

This allows the parties to reach some kind of settlement before getting to arbitration so we’re a way off formal proceedings.

Commercially, if a settlement is reached between the government and Philip Morris, it would put an end to the matter. That is, if the company were to enter into an agreement with the government, that would affect its ability to bring future claims.

Another way to approach this from the government’s side is to phase the measure in as a way of reaching a mutually beneficial outcome.

The company can acquiesce that the government has the right to dictate how products are sold and the government would agree that the company has a right to sell and prepare for the legislative change.

The key issue then would concern the dominant commercial interest on the part of Philip Morris – whether they are concerned about the sale of their products or the intellectual property associated with the packaging of their product.

On the face of it, this move by the company is about creating a precedent for plain packaging and the knock-on effect it may have for other more lucrative markets.

If we look at intellectual property associated with a brand, clearly tobacco companies have in many instances around the world faced significant constraints on the way they can promote their brand.

Already in Australia they are prevented from running television advertisements, advertising during sporting events and they have to carry prominent warnings on their products.

This clearly diminishes tobacco companies’ ability to promote their products and the government can argue that the plain packaging initiative is consistent with previous measures.

In fact, this could end up being the what the arbitration panel decides on.

It is far from clear whether Philip Morris’ tactic against plain packaging will succeed. AAP

In the latest salvo in the fight over plain packaging for tobacco products, Philip Morris is launching legal action under Australia’s bilateral investment treaty with Hong Kong.

The key aspect of Philip Morris’ claims against the Australian government is that the proposed plain packaging law results in unreasonable measures that impair the enjoyment of an investment.

Investment is broadly defined under treaty to include intellectual property.

Bilateral investment treaties seek to facilitate investment between two countries. They basically enhance business activities between the nations.

The treaties provide guarantees of non-discriminatory treatment between investors from the two countries; protect those investors from unreasonable measures in terms of their investment; and provide mechanisms for dispute resolution.

Disputes are a growth area in such treaties – which are themselves going through a boom period – as they allow investors to trigger dispute resolution mechanisms.

Investment disputes are normally heard by the International Centre for the Settlement of Investment Disputes (ICSID), which is supported by United Nations arbitration conventions.

So, the argument Philip Morris might seek to make is that the plain pack laws will unreasonably impair its ability to enjoy the intellectual property it has established with its design and properties in Australia.

But while there are mechanisms under that treaty to resolve disputes such as these, the legislation isn’t operative yet so I’m not sure the the company’s claim has any basis.

What’s more, the government says any legislation it passes will only come into effect on January 2012.

Technically, there’s no dispute until then, but Philip Morris could argue that the government has announced its intention to introduce the legislation, so it would be prudent for both parties to engage in a conversation now.

In other words, the claim is not consistent with provisions of the agreement but prudence would dictate that it would be advantageous for both sides to start to work out a solution to the impending issue.

And the government could seek to resolve the concerns that Philip Morris is raising.

One way forward for the government is to say “We’re going ahead with this and if you wish to sell your products here, you’ll have to comply with the proposed legislation”.

If the company wants to claim for its intellectual property, the government could offer a monetary settlement and this might be Philip Morris’ tactic in raising this issue and having it discussed in advance. It could be a pre-emptive move.

If there were a dispute, the agreement provides that there has to be a three-month cooling period between the time the dispute is raised and the formal commencement of proceedings.

This allows the parties to reach some kind of settlement before getting to arbitration so we’re a way off formal proceedings.

Commercially, if a settlement is reached between the government and Philip Morris, it would put an end to the matter. That is, if the company were to enter into an agreement with the government, that would affect its ability to bring future claims.

Another way to approach this from the government’s side is to phase the measure in as a way of reaching a mutually beneficial outcome.

The company can acquiesce that the government has the right to dictate how products are sold and the government would agree that the company has a right to sell and prepare for the legislative change.

The key issue then would concern the dominant commercial interest on the part of Philip Morris – whether they are concerned about the sale of their products or the intellectual property associated with the packaging of their product.

On the face of it, this move by the company is about creating a precedent for plain packaging and the knock-on effect it may have for other more lucrative markets.

If we look at intellectual property associated with a brand, clearly tobacco companies have in many instances around the world faced significant constraints on the way they can promote their brand.

Already in Australia they are prevented from running television advertisements, advertising during sporting events and they have to carry prominent warnings on their products.

This clearly diminishes tobacco companies’ ability to promote their products and the government can argue that the plain packaging initiative is consistent with previous measures.

In fact, this could end up being the what the arbitration panel decides on.

Dodgy data enlisted in the propaganda war against plain packaging of cigarettes

http://blogs.crikey.com.au/croakey/2011/06/28/dodgy-data-enlisted-in-the-propaganda-war-against-plain-packaging-of-cigarettes/

This week British American Tobacco Australia (BATA) launched its latest salvo in its propaganda war against plain packs.

new website allows visitors to click on any federal electorate (“Find your electorate”).

Once inside a selected electorate we read the estimate of illegal tobacco sales, with tax foregone derived from data compiled by Deloitte in 2011.

When you estimate illegal sales, you have to base it on survey data of what smokers tell you.

BATA are thoughtful enough to link to the report itself and on page 20, we read that Deloitte sourced Roy Morgan data gathered for BATA and that at  3.1.2.1 “Key requirements of sample:  Adult participants who qualified for the survey satisfied the following criteria: Aged between 18-64 years.  Resided in Sydney, Melbourne, Brisbane, Perth or Adelaide.”

On page 39, we can see that just 949 smokers completed the survey in these cities about whether they ever used illicit tobacco.

So BATA have taken city data and applied it to every electorate around Australia.

Apparently, smuggled tobacco is as easy to buy in Oodnadatta as it is in Redfern, Toorak or Vaucluse. It’s just the same with all consumer goods, right?

Deloitte seemed prescient when it handed over the report to the tobacco industry. A caveat reads “ No one else, apart from British American Tobacco Australia Limited, Philip Morris Limited and Imperial Tobacco Australia Limited are entitled to rely on this Report for any purpose.”

That would include .. .well … everyone else.

http://blogs.crikey.com.au/croakey/files/2011/06/tobacco-600x167.jpg

• Simon Chapman is professor of public health at the University of Sydney

***

• Meanwhile, over at The ConversationDonald Rothwell, professor at the ANU College of Law, analyses the case that Philip Morris is launching against plain packaging under Australia’s bilateral investment treaty with Hong Kong.  He doesn’t give the company much chance of success.

Antismoking campaign mounts after Jo Ramos’s death

http://www.businessmirror.com.ph/home/nation/13062-antismoking-campaign-mounts-after-jo-ramoss-death

28 June 2011

A DAY after Jo Ramos, daughter of former President Ramos, succumbed to lung cancer, antismoking advocates called on Health Secretary Enrique Ona to step up the campaign against smoking.

In a separate phone interview, both Dr. Maricar Limpin, Framework Convention Tobacco Control Alliance-Philippines (FCAP) executive director, and former Health secretary Esperanza Cabral said that due to Ramos’s death, there should be a call for a stronger effort to curb smoking-related illnesses in the country.

“We need a stronger and firmer DOH [Department of Health] that is ready to fulfill its mandate in protecting the right of Filipinos to health and our right to the highest standards of health, as stipulated in our Constitution as well as in the convention of human rights,” Limpin said.

Cabral emphasized the need for the passage of picture-based warning on cigarette packs pending in the House of Representatives.

“I also call on Secretary [Enrique] Ona to step up the campaign of the DOH against smoking,” Cabral stressed out.

Cabral said Jo Ramos’s death is only one of the 240 Filipino lives lost every day from tobacco-related diseases.

“We extend sincere condolences to the family of Jo Ramos. We appreciate very much the effort of President Fidel Ramos to fulfill his daughter’s dying wish to remind people that ‘smoking is bad for you,’” Cabral said.

“In an interview, FVR [President Ramos] relays that Jo’s advice to all is ‘smoking is bad for you,’” she reiterated.

Cabral hoped that with the death of Jo Ramos, government leaders will be pushed to take action to warn the public about the ill effects of tobacco and control its distribution, sale and use in the country.

However, the Cabral-issued DOH Administrative Order (AO) 2010-0013 is being questioned by tobacco firms before courts, saying it does not conform to the guidelines set by the Tobacco Regulation Act of 2003.

In April Batanes Rep. Henedina Abad and Iloilo Rep. Niel Tupas Jr. had filed separate bills that are pushing for the increase of cigarette prices by as much as 83 percent.

Sen. Pia Cayetano has filed a bill that would bolster the attempt to get the pictures on cigarette packs. The bill will penalize tobacco companies for every day of violation. It ensures the long-term impact by periodically varying the images used on the packs.

The Philippines is a signatory to the World Health Organization Framework Convention on Tobacco Control that obliges parties to put effective health warnings on cigarette packs.

It is estimated that one Filipino dies from tobacco-related death every 10 seconds, making it an alarming public health crisis. Seven out of the 10 primary causes of death in the country—stroke, cancer, heart attacks, tuberculosis, chronic lower respiratory disease, pneumonia and diseases that occur around childbirth—are tobacco-related diseases.

“Studies show a great decline in tobacco use in Brazil, Canada, Singapore and Thailand, among others. The US also recently announced that they will also be implementing picture warnings. We should not wait any longer,” said Evita Ricafort of HealthJustice.

, a public health law NGO that supports both the AO and the bills.

According to World Lung Foundation, a smoker takes a look at a cigarette’s packaging an average of 15 times a day, making it “the most effective and practical way to warn a smoker of the grave hazards of smoking.”

“Despite clear evidence on the positive impact picture warnings contribute to public health, the tobacco industry attempts to stop these pictures from seeing the light of day by filing lawsuits in different trial courts. The more successful they are in their efforts, the more tobacco-related deaths are not being prevented,” Ricafort lamented.