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March 18th, 2015:

Interview with Dr. Kelly Henning M.D, Bloomberg Philanthropies

10 Years of the WHO FCTC: WHO Special Session at WCTOH 2015

The WHO and Tobacco Control: Dr. Margaret Chan, Director General

Interview with John Seffrin, PhD. CEO, American Cancer Society

Interview with Sarit Kumar, Public Health Foundation of India

WCTOH 2015 Begins: Highlights of the Inaugural Ceremony

Interview with Kamran Siddiqi, Senior Lecturer in Public Health, University of York

Protecting the brand: British American Tobacco instructs Herbert Smith Freehills for plain packaging challenge

British American Tobacco (BAT) has gifted Herbert Smith Freehills (HSF) with a major disputes mandate, and instructed the firm as the tobacco giant challenges the UK government’s plans to bring in plain cigarette packaging.

The London-headquartered BAT has further instructed Hogan Lovells to advise on intellectual property issues, while barristers brought in includes 39 Essex Chambers’ Nigel Pleming QC and One Essex Court’s Geoffrey Hobbs QC.

BAT constitutes a longstanding client of HSF, with City partner Philip Pfeffer advising on numerous judicial challenges to tobacco control regulatory measures including plain packaging, graphic health warnings, and ingredient bans. New York partner Benjamin Rubinstein also successfully represented the tobacco major in a decade-long civil racketeering lawsuit, filed by the US justice department against multiple US tobacco companies, seeking $280bn in disgorgement of past profits.

BAT is one of several tobacco giants vowing to fight the UK government in court, after Parliament approved the Standardised Packaging of Tobacco Products Regulations 2015 which includes a ban on cigarette packet branding. Set to come into force in May next year, tobacco manufacturers will be forced to sell cigarettes in plain packets with uniform size, shape and design featuring only brand name and health warnings.

Prior to a debate in the House of Lords, BAT confirmed it would ‘commence a legal challenge against the UK Government, if the House of Lords supports MPs who voted to implement plain packaging for tobacco products’.

BAT’s corporate and regulatory affairs director Jerome Abelman said: ‘This legislation is a case of the UK Government taking property from a UK business without paying for it. That is illegal under both UK and European law.’

‘Legal action is not something we want to undertake, nor is it something we enter into lightly – but the UK Government has left us with no other choice after running what can only be described as a flawed consultation process. Any business that has property taken away from it by the state would inevitably want to challenge and seek compensation.’

BAT intends to argue that plain packaging violates a number of UK, European Union (EU) and international laws, including EU trademark laws, as well as World Trade Organisation rules regarding international trade.

In December 2012 Australia became the first country to introduce plain packaging while last month Ireland’s president signed into law the Public Health (Standardised Packaging of Tobacco) Bill.

Other firms acting on behalf of Big Tobacco include Arthur Cox which is currently representing Japan Tobacco in its dispute over plain packaging legislation against the Irish government.

Plain Packaging for Tobacco Users

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China in Dire Need of Anti-Tobacco Regulations

The tobacco industry is dominated by four large companies in much of the world, but in China, tobacco production and the sale of manufactured cigarettes are controlled by the Chinese National Tobacco Company (CNTC), which is a 100% state-owned enterprise, and the supply of tobacco is regulated and supervised by the State Tobacco Monopoly Administration (STMA), a government institution.

Such a cozy relationship makes it very difficult to enact effective anti-tobacco policies, such as banning smoking in public places and banning advertising, write Gonghuan Yang, MD, from the Peking Union Medical College in Beijing, China, and colleagues in a report published in the March 14 issue of the Lancet. The report is part of a series on a tobacco-free world.

China is in dire need of strong anti-tobacco regulations, according to the authors.

“The prevalence of tobacco use among adult men in China is one of the highest in the world and is increasing,” according to Dr Yang.

“About 12.0% of all deaths (0.6 million) were attributed to tobacco use in 1990, but this estimate increased to 16.5% (1.4 million) in 2010. In the absence of effective action, the burden of smoking-caused disease will increase, causing enormous premature mortality,” he noted.

There are some promising developments in legislation being considered, including protecting people from second-hand smoke and banning all forms of tobacco advertising, promotion, and sponsorship. However, the next challenges will be to increase cigarette taxes and to change health warnings on standardized cigarette packaging to reduce tobacco consumption, Dr Yang said in a statement.

“China has the potential to be successful in tackling the pandemic of tobacco use among Chinese people, but only if the governmental structure is changed to allow tobacco regulations to be implemented independent from the tobacco industry,” he said.

Cozy Relationship

The goal of a tobacco-free world by 2040 — addressed by another report in the series, as reported by Medscape Medical News — is crucially dependent on more rapid progress in China, Dr Yang and colleagues report. However, tobacco control remains a huge challenge because of the conflict between the tobacco industry and tobacco-regulation policies.

“The STMA/CNTC is well connected with other national governmental agencies and is charged with obtaining the greatest profits through this increasingly intertwined and powerful network, thus representing a powerful special-interest group,” Dr Yang said.

This close relationship cannot be ignored in discussions of tobacco control in China. The tobacco industry is a giant state-owned enterprise, with net profits of $26.2 billion in 2012, which is far bigger than the Bank of China or the Petro China Company.

The setup allows the STMA/CNTC to undermine political and legislative efforts to control tobacco by exaggerating the economic importance of the industry, organizing support through front groups, and funding research, even at universities, to promote “pseudoscience” (e.g., research on so-called safe cigarettes with low tar and Chinese herbs), Dr Yang explained.

China ratified the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) in 2005, pledging to promote measures limiting the use of tobacco products.

That same year, the STMA published its Research on Countering Tactics for WHO Framework Convention on Tobacco Control and Impact on Tobacco Industry in China, which outlined strategies to avoid implementing the main articles of the FCTC.

In China, Cigarettes Are Sexy

Another barrier to tobacco reform is that cigarettes are considered to be essential for almost all social events, including weddings, funerals, and official activities. Offering cigarettes to friends, guests, and visitors is still regarded as a courtesy, and expensive cigarettes are among the most frequently given gifts in China.

The Chinese government has even given scientific awards to an industry researcher for promoting low-tar tobacco products. In 2011, this researcher was elected to the Chinese Academy of Engineering, the highest honor for a scientist in China, and was named the Tobacco Academician in Media, “emphasizing the deceptive practices and power of the STMA,” Dr Yang said.

As of 2010, an estimated 740 million nonsmokers were exposed to second-hand smoke in public places, such as restaurants, government buildings, healthcare facilities, schools, and public transportation.

In 2014, the government began to look at drafting some kind of regulation that would ban smoking in public places. “The Chinese government has taken almost 10 years to reach this stage, and the national regulation, if adopted, will be a huge step forward to protect health and promote cleaner air,” Dr Yang said.

The Ministry of Health has also called for the ban of smoking throughout China’s medical care system.

In addition, the Health and Family Planning Commission requires medical and health institutions to provide advice on smoking cessation. However, nicotine-replacement therapy is not on the national medicines list.

The STMA also controls the way health warnings are presented on Chinese cigarette packages, Dr Yang said. These notices “allow false information about tar, nicotine, and carbon monoxide to be printed on cigarette packages, leading people to believe that so-called light cigarettes are less harmful than regular cigarettes,” he said.

Even worse, “55% of healthcare professionals and 48% of teachers believe that low-tar cigarettes are less harmful than regular cigarettes,” he said.

In China, sponsorship is a common means of tobacco marketing. The Shanghai Tobacco Company sponsored the 2010 Shanghai World Expo, although the company returned the funds after they were exposed and criticized by international and domestic protests.

Also sponsored by the tobacco industry are the HaoRiZi (Happy days) marathon races, the election of a Jiaozi (panda) cigarettes youth leader, the 2012 Top Model of the World, the YuXi National Individual Championships, and the Wu Ye Shen cultural touch program, which covers serious cultural events.

The tobacco industry is allowed to prominently display cigarettes at the point of sale, give out free samples, advertise brand names of tobacco products on clothing and accessories, and advertise on television. Such activities are banned in many countries of the Western world.

At least 69 elementary schools are named Tobacco Hope School, and “thousands” of students are exposed daily to protobacco propaganda, names, and messages, Dr Yang said.

The motto of Tobacco Hope Schools is, “Genius comes from hard work / Tobacco helps you to be successful,” he reported. “And 86% of 5- and 6-year-olds can identify at least one cigarette brand logo in China.”

Raising taxes on tobacco products is the single most effective policy to reduce consumption, but the tax on cigarettes in China is very low — 56% for top-graded cigarettes and 36% for inferior grades, which is far below the FCTC recommendation of 70%.

“Most cigarettes in China are still very cheap,” Dr Yang said. “Furthermore, tobacco in China has become much more affordable than it was, as average incomes have increased with China’s rapid economic growth and development.”

In spite of all these things, people in China are increasingly aware of their right to a healthy life. Eventually, the demand for tobacco products will decline, Dr Yang said.
The world is watching and waiting with hope.

“The Chinese government should restrain from further development of the tobacco industry and plan appropriate strategies to reduce the effect of a reduction in tobacco demand,” he said.

In addition, tobacco growers will need to be switch to alternative crops or enter other industries.

“China can become a leader in tobacco control by successfully addressing the world’s largest tobacco epidemic and working toward the rapid reduction of the tobacco industry’s devastating effect on the health and wellbeing of the Chinese population,” Dr Yang said. “The world is watching and waiting with hope that China will take strong actions and set timed and measurable goals toward ending the tobacco epidemic.”

This work was supported by CMB project Strengthen Capacity of Study and Application on Burden of Disease in Health Care System of China. Dr Yang has disclosed no relevant financial relationships.

Lancet. 2015;385:1019-1028. Abstract