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March 22nd, 2015:

As Europe adopts Australia’s plain packaging reforms, big tobacco fights back

There are winners and losers in the plain packaging for cigarettes battle. Big business is trying valiantly to its protect its ground.

Weed killers: Former attorney-general Nicola Roxon has been meeting European campaigners such as Norwegian Cancer Society's Anne Lise Ryel about the push for plain paper packaging. Photo: Supplied

Weed killers: Former attorney-general Nicola Roxon has been meeting European campaigners such as Norwegian Cancer Society’s Anne Lise Ryel about the push for plain paper packaging. Photo: Supplied

“It’s a bit stunning … dominos falling everywhere.”

Mike Daube, mild-mannered health policy professor from Western Australia, is surveying the virtual battlefield in the war against big tobacco. And he likes what he sees.

“It really is the most dramatic global development in tobacco control that I can remember in more than 40 years.”

A pile of cigarette packets with plain packaging. Photo: Nic Walker

A pile of cigarette packets with plain packaging. Photo: Nic Walker

This month alone saw Ireland and Britain legislate for plain cigarette packets with big ugly health warnings, following Australia’s 2012 lead. Norway and France – and others – are hard on their heels.

These wins have come despite fierce opposition from the tobacco industry. Lawyers have threatened huge lawsuits, piles of specially-commissioned reports have been delivered to key lobbyists, legislators and opinion-makers, and the industry even (Daube’s colleagues claim) played dirty tricks along the way.

“I haven’t seen the industry as ferocious about anything in more than 40 years,” says Prof Daube. “They clearly do see it as a massive threat, especially now that so many dominos are falling.”

Also this week, billionaire philanthropists Michael Bloomberg and Bill Gates dug for small change in the sofa and found $US4 million to help developing countries fight legal threats from tobacco companies.

The fund was launched (and Prof Daube was speaking) from Abu Dhabi, where the 16th World Conference on Tobacco has the air of a war room, mid-campaign.

There were rousing speeches. Talk of tactics and strategies and alliances. War stories were shared and heads put together to try to read the mind of the enemy.

Deterrent packaging

Deterrent packaging

Dr Douglas Bettcher, director of prevention of noncommunicable diseases at the WHO, was there. He agrees tobacco control measures are being adopted at “an extraordinary pace”.

Two and a half weeks ago Ireland passed plain packaging legislation, last week similar legislation passed the UK House of Commons and Singapore announced a public consultation on plain packaging. This week the House of Lords passed it into law in the UK, Norway released a public consultation document proposing it and plain packaging bills are under discussion in Panama and South Africa, Dr Bettcher says.

This is not to mention moves in France, New Zealand, Burkina Faso and Turkey.

“All of this progress is being made despite the industry’s best efforts to thwart it,” he says. “Given that the industry fights hardest against the most effective tobacco control measures, it must be very worried about what the globalisation of plain packaging could do, and it is very busy concocting false evidence and lobbying hard against it.

“This is an important moment in the history of tobacco control. We are witnessing the creation of a global movement.”

A keynote presenter in Abu Dhabi was Dr James Reilly, a mellifluous Irishman with a flair for the dramatic. He sounds like a victorious general back from the front.

This month Ireland became the second country in the world and the first in Europe to enact plain packaging legislation. Reilly shepherded the law through, as Minister for Children.

“This has been a long journey,” he says. He called for a round of applause for Australia for paving the way and inspiring their decision to follow – however, he says, “there were far more twists and turns than we ever anticipated.”

To start with, European law did not permit plain packaging. Ireland had to use its 2013 presidency of the EU to push new laws through.

“But when the directive made its way to the European Parliament we saw the full power and influence of the tobacco industry at work,” Reilly says.

Documents leaked to The Observer newspaper showed 161 lobbyists were hired by just one tobacco company. Philip Morris International strategised to delay the directive until the EU presidency passed to tobacco-friendly Lithuania.

In one year lobbyists claimed almost £1.24 million in expenses for meetings with MEPs, The Observer reported. They held personal meetings with a third of all the huge parliament’s members, some up to five times. They targeted farmers’ organisations, retail bodies and trade and business organisations.

“Members of the EU parliament complained that the scale of lobbying on this directive was unprecedented,” Reilly says. “There was a very real danger that the parliament would vote in favour of reducing the size of warnings.”
The Irish prevailed in Brussels. The focus switched back home – and the tobacco industry followed.

They enlisted members of the EU parliament, US congressmen, Indonesian farmers and Irish retailers to their cause.

“We were lobbied on a scale that Irish politics had never seen before,” Reilly says.

Benson and Hedges owner JTI Ireland (a 55-billion-euro multinational based in Geneva) warned in the last desperate week before the bill went to parliament, that the government had just days to withdraw or face a High Court claim for hefty damages.

“(Their) letter was especially aggressive,” says Reilly. “Not only did they attempt to tell a sovereign government that we did not have the authority … they attempted to tell us how far we could progress it through our parliament and insisted that we provide them with a written undertaking within a matter of days not to progress it any further.”

Imperial Tobacco and Philip Morris echoed the threats.

“But we had built a strong coalition that proved impenetrable,” Reilly says. As a doctor he had seen firsthand the devastation caused by lung cancer. He told his stories to his colleagues. Not one member of parliament voted against the law, he says.

“[Big tobacco’s] only aim is to protect their profits. Our aim and our duty is to protect the health of our people especially that of our children. We have the truth on our side and truth, as an old lady once told me, is not fragile, will not break. Nor will we.”

Cigarette companies including BAT are now “considering their legal options”, Fairfax was told.

Then it was the UK’s turn. Prime minister David Cameron had once been a plain packaging fan but by 2013 the plan sat in the coldest corner of the backburner after his Australian strategist-for-hire Lynton Crosby reportedly told him to “scrape the barnacles off the boat” in preparation for the 2015 election.

Crosby, who also consults for Philip Morris, denied that he had ever discussed plain packaging with the PM. But for whatever reason, it seemed dead.

But then up popped the policy again, suddenly, amid the dying embers of the final legislative sitting. Fairfax understands the government’s hand was forced by a strong push for a private members bill in the House of Lords.

Again, the tobacco companies campaigned strongly. Media were heavily briefed against plain packaging, as were MPs. Opinion columns rehearsed the tobacco lobby’s song sheet (to be fair, by now the anti-tobacco lobby’s arguments were just as well-practised).

The law passed, despite a sizable rebellion among MPs (and many who had to abstain, citing conflicts of interest or revealing previous tobacco lobby gifts such as tickets to the Chelsea Flower Show).

A spokesperson for British American Tobacco told Fairfax there will be legal action. “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.”

“The UK Government has left us with no other choice… Any business that has property taken away from it by the state would inevitably want to challenge and seek compensation.”

You could call it The Castle argument. As Darryl Kerrigan might put it, a cigarette packet is more than just a drawing on a box. By removing a company’s right to use their own brand, you are stealing something from them. The tobacco lobby has other arguments but this is the core of their fight: not to lose their identity.

Unlike in The Castle, this line failed in Australia’s High Court. But it is now being fought in two international jurisdictions including the WTO, on the basis that the laws breach Australia’s treaty obligations. And it will be fought again against the UK and possibly Ireland.

And now it is Norway’s turn to enter the fray.

This week, in a restaurant on a scenic hill overlooking Oslo, Norway’s health minister lunched with the local secretary-general of the Norwegian Cancer Society, Anne Lise Ryel, on the day of the launch of a consultation paper on plain packaging – which also proposed new transparency rules on tobacco industry lobbying.

There was another guest at the table: Nicola Roxon, Australia’s former health minister and attorney-general, the politician who used her two key roles in the former Labour government to formulate and then enact the laws that set a precedent for the world.

Roxon is out of politics but finds herself in demand globally for her experience in the fight for plain packaging.

“We were looking to Australia to see what happened and to learn,” Ryel tells Fairfax. “In this consultation paper Australia is mentioned many times.”

They wanted to see, particularly, how the industry would fight. “All the time they become more sophisticated because they need to… they always try to be a step or two ahead,” Ryel says.

They have seen dirty tricks already: in a previous legal fight against Philip Morris the tobacco companies spread their money around Oslo’s law firms, leaving them unable to advise the government.

Bent Hoie, Norway’s health minister, tells Fairfax that Australia should be “commended” for leading the way. “That has been very important for us, we have a complete example to follow. We can use their experience and be better prepared for what kind of resistance we will meet.”

Ms Roxon says she is proud – and Australia should be proud of what it has achieved and what might yet be achieved following Australia’s lead.

“I’m really pleased to be able to share our experience and hope that other countries will be able to avoid some of the problems,” she says.

“You can’t just have the first, you need to have the second, third and fourth for it to become something that people will do as a matter of course.”

She says the Norwegians are “super-organised and super-committed” but have been picking her brains on the tobacco industry’s likely response, especially how they brought employer and business lobbies into the argument.

It may sound like big tobacco is losing an existential battle. But not so fast. Last year the world smoked more than 5.8 trillion cigarettes. The number was comparable to the year before, in which tobacco industry profits were more than $US44 billion according to Tobacco Atlas.

Barely a 10th of the world’s population lives in countries with bans on tobacco advertising. Low- and middle-income countries now account for more than 80 per cent of tobacco users – and tobacco-related deaths.

The reduction in smoking rates in countries such as Britain, Australia and Brazil was more than offset by growing consumption in China alone.

“Developing markets are driving our growth – while developed markets are the source of current profits, developing markets are the drivers of future profits,” a BAT spokesperson tells Fairfax.

So why bother with Norway, when you’ve got China?

Ryel says she believes her country, and others, are setting an example, and providing a template that others can follow.

“That’s why it’s so important that we help the other countries, to see the force we put the other way. What happens in Norway, we think and hope is helpful for other countries that want to go on board, they will feel more secure.”

If this idea catches on, it could snuff out tobacco on a global scale