Why did it take 53 months for NZ to introduce plain cigarette packs?by Eric Crosbie & George Thomson
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The threat of legal action by tobacco companies in response to NZ introducing plain packs never eventuated - but Kiwis' health was harmed by the delay.
Because of the immense financial value of tobacco brands, and the crucial importance of marketing for the industry to recruit new smokers, they are especially active in legal threats against the use of plain pack regulation (standardised packs to remove logos, colours and other marketing tricks).
As governments have increasingly adopted tobacco advertising bans, these legal threats have escalated. This is because the package represents one of the last bastions of tobacco marketing. When Australia proposed plain packs, the industry feared the loss of this vital site for branding, and the precedent that Australia would supply to other countries. They brought a number of legal actions against Australia, either directly, or through other countries, attempting to prevent or slow the new policy.
One of the intended side effects of these actions was to slow the use of plain packs in New Zealand and globally.
When New Zealand proposed introducing plain packs in 2012, tobacco companies threatened to sue the Government for billions of dollars in ‘compensation’. In doing so, the tobacco companies consistently cited their lawsuits against Australia as an example of what would happen if neighbouring New Zealand proceeded. Fearful of the diffusion of best practices, the tobacco industry saw the delay of plain packaging in New Zealand as part of preventing the spread of the policy regionally and globally. As a former vice president of Philip Morris put it, “a sneeze in one country today causes international pneumonia tomorrow.”
What was behind NZ's "wait and see" approach?
Instead of joining with Australia and introducing the measure in 2012, the New Zealand government delayed. They said that they needed to wait until the Australian lawsuits were decided. In doing so, they fell right into the industry’s trap.
This was despite being given expert international legal advice that the industry threats did not have any real legal basis, something which the industry’s own lawyers had advised the industry back in the 1990s. Plain packs were not introduced to New Zealand until 2018.
Besides the threats of legal action, there are other factors that may have contributed to the New Zealand delay. They include the closeness of the Government to the tobacco industry, and the Government’s reluctance to be seen to be regulating industries and acting against foreign investors in general.
The delay was despite New Zealand’s membership in an international tobacco control treaty. Since 2005, New Zealand has had the backing of the World Health Organization Framework Convention on Tobacco Control, which provides a legal basis (and a requirement) for tobacco control action such as plain packs.
A 53-month delay
Australia took 18 months to pass their plain packs law, France 20 months, Ireland 22 months, the UK 35 months, and New Zealand 53 months.
In the end, the tobacco industry or their proxy countries did not sue New Zealand. Instead, they used the mere threat of legal action to help delay plain packs in New Zealand. Tobacco control advocates argue that if the government had been serious about saving lives and helping smokers quit, they would have started and finished the plain packs' legislation much earlier. The 53 months taken is in contrast to previous major New Zealand tobacco control legislation, which took less than a year (1990) or less than three years (2001-2003).
Besides the ability of a multinational to form government policy, the ultimate significance of delaying plain packs in New Zealand or elsewhere is the tremendous human cost. The political delays allow the tobacco industry more time to recruit new young smokers to consume a product that kills over half of all long-time users. Former Australian Health Minister Nicola Roxon said it best, “We are killing people by not acting.”
Such industry tactics are not limited to plain packs and are the tip of the iceberg in their fight to continue to profit from tobacco and nicotine. In the USA, the industry in 2006 was found by Judge Kessler to have systematically lied to the public for 50 years:
‘Defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as ‘replacement’ smokers, about the devastating health effects of smoking and environmental tobacco smoke.’
Because of the global nature of the major tobacco companies, this statement can apply across many countries. Industry tactics have been summarised as denial, deceit and delay.
The industry uses threats, lies, distortions and the suborning of officials and politicians. This has been a clear pattern for over sixty years, in every country on the globe, and the effects are worse in countries less able to withstand such tactics. For instance, in 2016 the industry stopped tobacco tax increases in Malaysia and Indonesia, and in Myanmar, Laos, and Cambodia, pictorial health warnings for tobacco were either stopped or delayed.
Because of the growing ability of multinationals to sue the New Zealand government, the health of New Zealanders may be increasingly vulnerable to similar threats. We need to constantly ask questions such as ‘is the current Government’s lack of action on sugar taxes because of such threats?’
Such issues are becoming even more difficult with new trade agreements having been just concluded or in the process of negotiation, which makes it difficult for Government to regulate for health actions.
This opinion piece is based on our recent article ‘Regulatory Chills: Tobacco industry legal threats and the politics of tobacco standardized packaging in New Zealand’ which was published in the New Zealand Medical Journal in April this year.
Dr Eric Crosbie, University of California, San Francisco
Associate Professor George Thomson, University of Otago, Wellington
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