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August 4th, 2016:

Philip Morris Gets Its Ash Kicked in Uruguay; Where Will It Next Blow Smoke?

Philip Morris International just lost a six-year battle to block Uruguay’s strong cigarette warning labels, which cover 80 percent of the front and back of cigarette packs, including graphic photos of the damages of smoking.

The decision was made by the World Bank’s trade tribunal, the International Centre for Settlement of Investment Disputes (ICSID), the world’s the leading body to settle international investment disputes.

Philip Morris became the first tobacco company to take on a country in an international court, and it took on one of the smallest. The company argued that Uruguay had violated terms of an investment treaty with Switzerland by enforcing anti-smoking laws. The operational headquarters for Philip Morris International is in Lausanne.

Philip Morris, with gross revenues of US $64 billion in 2010, sued Uruguay, with a GDP of US $32 billion that year, under the investor-state dispute settlement (ISDS) provisions of international trade deals. The tobacco company claimed Uruguay’s health warnings reduced the value of its investment and trademark rights to sell cigarettes in Uruguay. The ICSID trade tribunal upheld Uruguay’s right to protect its people’s health.

Small Country, Easy Prey

Uruguay, nestled between the southern tip of Brazil and the northern part of Argentina, has a small population — 3.4 million — but a big desire to cut tobacco usage. Its president, Tabaré Vázquez, is an oncologist.

Among other anti-smoking efforts, it bans tobacco advertising and smoking in public places.

Such efforts have paid off. A study published in 2012 in The Lancet praised Uruguay’s “substantial, unprecedented decrease” in adult cigarette smoking. The number of adults who smoke in Uruguay fell from 35 percent in 2005 to 22 percent in 2014.

At one level, Uruguay’s win seems to contradict opponents of trade deals like the proposed Trans-Pacific Partnership Agreement (TPP) and Transatlantic Trade and Investment Partnership (TTIP). These opponents say the pending trade agreements would give multinational corporations, such as Philip Morris, the ability to directly challenge public health, worker safety and environmental laws through ISDS provisions.

In this case, however, Uruguay was able to resist Philip Morris because of financial help from Michael Bloomberg in faraway New York. Indeed, before international health groups appeared, Uruguay was considering weakening the health warnings to avoid an even longer battle with Philip Morris.

Neither Bloomberg nor Uruguay disclosed the amount of Bloomberg’s financial help. It is safe to say that Uruguay would have not prevailed without this financial and international political support.

A History of Bullying

Philip Morris’ legal bullying of Uruguay is nothing new. It has bullied other countries, states and cities for years. It does this by filing lawsuits that exhaust the resources of governments that enact anti-smoking laws.

Tobacco companies routinely sued US communities in the 1980s and 1990s to deter them from enacting smoke-free laws, despite the companies almost always losing in court. This strategy often succeeded by using the mere threat of litigation to deter localities from adopting similar laws.

Although tobacco companies almost always lost in court, most localities did not go to court for fear of being sued. Few have the money and ability to hire the expensive lawyers — some of whom are paid as much as $1,000 an hour — to stay in a legal battle with tobacco companies. The threat of legal action was powerful to stop localities. More importantly, the threat of incurring expensive legal fees was enough to deter other cities from enacting laws that ban smoking.

Laurent Huber, the executive director for Action on Smoking and Health, the oldest anti-smoking group in the US, hinted at the effectiveness of this strategy in his post-trial comments. Phillip Morris “will no doubt shed some public crocodile tears, but their main goal in launching the suit has been realized, six years and millions of dollars have been spent defending a nondiscriminatory law that was intended purely to protect public health,” Huber said.

Likewise, in the 1990s when Australia and Canada first started thinking about requiring cigarettes to be sold in plain generic packaging, tobacco companies threatened to sue them. Standardized plain packaging, as Simon Chapman notes, removes the emperor’s clothes. The companies claimed that these proposals violated their trademark rights, one of the same claims Philip Morris made against Uruguay.

This was despite their own lawyers privately telling them that international treaties permitted governments to require such packaging. The tactic worked; both countries dropped their efforts for two decades. Canada has resumed its efforts, and Australia implemented plain packaging in 2012.

In response, Philip Morris sued Australia in domestic and international trade courts. After a four-year battle, Australia prevailed. The country still faces an industry-inspired challenge in the World Trade Organization, however.

Uruguay’s and Australia’s victories provide some legal precedent about a country’s sovereign right to implement public health regulations for other countries. Indeed, it is just these kinds of precedents that Philip Morris was trying to block. As then Philip Morris Vice President Hugh Cullman observed in 1985, “a sneeze in one country today causes international pneumonia tomorrow.”

He was right to be worried. UK, Ireland and France recently enacted plain packaging, and New Zealand, Canada, Norway, South Africa, Malaysia, Turkey, India and Chile are moving forward.

US Lagging Behind Other Countries

Uruguay’s and Australia’s wins against Big Tobacco are important reminders of how much the United States is lagging. Despite being required by the 2009 Family Smoking Prevention and Tobacco Act, we still do not have pictorial health warnings, much less plain packaging, on tobacco products.

The FDA issued a rule requiring pictorial warnings (albeit smaller than Uruguay’s) in 2011. The tobacco industry blocked this rule in court. That was in no small part because the Obama administration grossly underestimated the benefits and overstated the cost of including the pictorial warnings, including the “pleasure” that smokers would lose if they broke their addictions to nicotine or never started.

The FDA still has not issued new graphic health warnings despite the fact that 91 countries have pictorial health warnings on cigarette packages.

The administration is still pushing the TPP and TTIP, both of which will provide new avenues for Big Tobacco and other corporate interests to sue governments over strong public health policies. It also opposed excluding tobacco, also known as a tobacco “carve-out” in the TPP, and was willing to support only mild limits on Big Tobacco’s ability to use ISDS provisions to directly sue governments over their tobacco control policies.

TPP members would still need to “elect to deny” the ability of tobacco companies to sue directly, creating a loophole for them to continue intimidating governments with potential ISDS challenges.

With both the Republican and Democratic presumptive nominees for president opposing the TPP, it is time for the next president to start removing provisions of trade agreements that empower big companies to sue governments over health and environmental protections.

And, in the meantime, the administration should follow Uruguay, Australia and the rest of the world and require 21st-century warning labels on tobacco products.

Disclosure statement: Eric Crosbie receives funding from the National Institute of Health, and Stan Glantz receives funding from the National Institutes of Health and Truth Initiative. He is the president of the University of California Council of Faculty Associations.

Gambia to Embrace Plain Packaging of Tobacco Products

The Minister of Health and Social Welfare, Honourable Omar Sey, has stated that with strong multi-sectoral team and the efforts of the media, The Gambia can effectively implement the promotion of plain packaging of tobacco products.

He added that his Ministry is in full support of the plain packaging and therefore counts on the continued support and collaboration from the media and the multisectoral team. He was speaking yesterday during a day-long media briefing on World No Tobacco Day, held at the Ministry in Banjul.

The theme for this year’s celebration advocates for the introduction of “Plain (Standardised) packaging” of tobacco products which was first introduced by Australia in 2012 and recently in the UK and France.

Dr. Omar Sey further said The Gambia will soon join other countries that have already passed laws to implement plain packaging, adding that, it is time to act. As countries seek to embrace the plain packaging of tobacco products, he noted, tobacco companies all over the world are on the fight against the initiative with massive misinformation campaigns.

“Plain packaging of tobacco products restricts or prohibits use of logos, colours, brand images and promotional information. It is part of an integrated approach to tobacco control that helps to reduce attractiveness of tobacco packaging,” he added.

Minister Sey disclosed that The Gambia has recently won two of the five awards for the World No Tobacco Day 2016 throughout the African region.

The Executive Director of RAID, The Gambia, Sambujang Conteh noted that this day is set aside by the World Health Organisation (WHO) to reflect on the past achievements, efforts and bottlenecks and also pave a way forward in protecting the present and future generation from risks associated with tobacco use.

“The Gambia has tremendous achievements in tobacco control but, we have a long way to go as we need a legal framework to pave us the way,” he affirmed.

He added that the stakeholders would soon table a bill before lawmakers for the control of tobacco use in the country. He said tobacco being one of the four risk factors of Non-communicable Diseases (NCSs) kills nearly six million people annually worldwide, noting that The Gambia is not an exception.

Bakary Gassama of the WHO thanked The Gambia Government for the wonderful strive towards the area of tobacco control in the country.

He said health is something that cannot be done by the government alone and thus called for the support of the general public and journalists to continue raising awareness on the dangers of tobacco.

The Programme Manager of NCDs, Omar Badjie, said nowadays there are many youth engaged in smoking cigarette, especially young boys and girls. He, therefore, called on the media to continue sensitising the general public on the dangers of smoking, especially in public places.

by Arfang MS Camara

MMWR- Morbidity and Mortality Weekly Report

Disparities in Adult Cigarette Smoking — United States, 2002–2005 and 2010–2013

Proven interventions, including increasing the price of tobacco products, coupled with evidence-based cessation services, comprehensive smoke-free policies, high-impact media campaigns, and promotion of cessation treatment in clinical settings, are effective strategies in reducing the prevalence of tobacco use and tobacco-related disease and death in all racial/ethnic populations. To assess the prevalence of, and changes in, cigarette smoking among persons ages ≥18 years in six racial/ethnic populations and 10 select subgroups in the U.S., CDC analyzed self-reported data collected during 2002–2005 and 2010–2013 from the National Survey on Drug Use and Health and compared differences between the two periods. During 2010–2013, the overall prevalence of cigarette smoking among the racial/ethnic populations and subgroups ranged from 38.9 percent for American Indian/American Nativesto 7.6 percent for Chinese and Asian Indians. Differences might be due, in part, to variations in socioeconomic status, acculturation, targeted advertising, price of tobacco products, and practices related to the acceptability of tobacco use across population groups. These findings highlight the importance of looking at tobacco use estimates by smaller racial/ethnic subgroups and by sex to better understand and address disparities in tobacco use among U.S. adults.

Some racial, ethnic groups continue smoking cigarettes at higher rates

Substantial disparities found among American Indians/Alaska Natives, Korean and Puerto Rican Americans

Despite a significant decline in overall adult cigarette smoking since 1964, disparities in cigarette smoking remain among racial and ethnic population groups, according to a new study from the Centers for Disease Control and Prevention (CDC) published in today’s Morbidity and Mortality Weekly Report (MMWR).

For example, current (past 30-day) cigarette smoking during 2010-2013 was lower among Asians overall (10.9 percent) compared with Whites (24.9 percent). But among Asian sub-groups, the prevalence of current cigarette smoking ranged from 7.6 percent among Chinese and Asian Indians to 20.0 percent among Korean Americans. The American Indian/Alaska Native population had the highest prevalence of cigarette smoking at 38.9 percent. The findings in this study show the importance of identifying higher rates of tobacco use across and within racial/ethnic population groups to better understand and address differences in tobacco use among U.S. adults.

Larger sample size for racial/ethnic subgroups

Estimates of cigarette smoking prevalence are usually presented in aggregate for racial or ethnic populations, such as Asian or Hispanic, because sample sizes are too small to provide estimates among racial/ethnic subgroups within these populations. To get a large enough sample size for this study, researchers aggregated data from the National Survey on Drug Use and Health collected between 2002-2005 and 2010-2013 to assess cigarette-smoking prevalence among 6 racial and ethnic population groups and 10 select subgroups in the United States.

“Even though the overall cigarette-smoking rate is declining, disparities remain among racial and ethnic groups and within subgroups,” said Bridgette Garrett, Ph.D., associate director for health equity in the CDC’s Office on Smoking and Health. “Looking beyond broad racial and ethnic population categories can help better focus the strategies that we know work to reduce tobacco use among sub-groups with higher rates of use.”