Fight for plain truth far from over

Wednesday 6 May, 2015
by Jonathan Liberman
A series of papers published this week in a special supplement of the British Medical Journal's Tobacco Control provide evidence that Australia's tobacco plain packaging laws are achieving their public health objectives.

The first comprehensive evaluation of the legislation has found that, a year into its operation, the scheme has reduced the appeal of tobacco packs, particularly among adolescents and young adults, increased the effectiveness of health warnings, and encouraged thinking about quitting and quit attempts. The evaluation has also shown the tobacco industry's insistence that tobacco plain packaging would lead to a collapse in prices and an explosion in illicit tobacco use is baseless.

Other countries are now following Australia's lead. Over the last fortnight, Ireland and the UK have enacted laws for tobacco plain packaging. France, New Zealand, Norway and Turkey have all taken steps towards doing so. Other countries will follow. These are important developments in the global drive to reduce the terrible toll that tobacco takes.

The World Health Organization estimates that 6 million people die annually as a result of tobacco use. Tobacco use accounts for approximately 7 per cent of all female deaths and 12 per cent of all male deaths globally. The WHO estimates that unless strong action is taken, the annual toll will rise to 8 million deaths per year by 2030, or 10 per cent of all deaths projected to occur that year. More than 80 per cent of these deaths will be in low- and middle-income countries. Tobacco-caused death and disease are major contributors to poverty, and a giant handbrake on social and economic development.

It would be nice if the tobacco industry had by now processed its grief over the introduction of plain packaging - which it had managed to stave off for over 20 years, until Australia acted - and moved on. But alas when the tobacco industry is involved, that's seldom the case. Nearly five years since the laws were announced, over three years since the legislation was enacted, two-and-a-half years since a resounding High Court decision dismissing the tobacco industry's constitutional challenge, and two years since plain packaging's full implementation, international legal challenges are ongoing.The Australian Government continues to defend legal proceedings in the World Trade Organization (WTO), and under a 1993 bilateral investment treaty between Australia and Hong Kong. Every country that so much as intimates that it is considering tobacco plain packaging is subjected to a barrage of legal threats should it dare to proceed.

Litigating, and threatening litigation, have become just another part of the tobacco industry's business operations. The strategy has a number of aims: make what would otherwise be very cheap policy interventions to reduce death and disease expensive; drain governments' resources; delay the implementation of laws that will reduce the industry's profits; and bully and intimidate governments out of enacting these laws at all. It's a grim business, at its worst when this behaviour is inflicted on the least-resourced governments, which are both in greatest need of strong tobacco control laws to protect the health of their people, and least able to respond to the tobacco industry's modus operandi.

It's worth trying to imagine for a moment how a government official in a low-resource country might feel upon receiving a letter, a phone call or a visit from the tobacco industry or its high-powered lawyers threatening litigation, being bombarded with an alphabet soup of treaties and cases that he or she has never heard of, ill-equipped to recognise how disingenuous the claims may be. Thankfully, these officials can now receive support, through the networks of knowledge and expertise that have developed over the last few years around litigation experiences like Australia's, but the disparity in resources remains vast.

The overwhelming view among those with relevant legal expertise (and not on the tobacco industry's payroll) is that the Australian Government is on solid legal ground. The laws are an exercise of Australia's sovereign power to regulate to protect public health, do not discriminate between domestic and imported products, are based on evidence, and have behind them the legal and political force of the global public health treaty, the WHO Framework Convention on Tobacco Control (WHO FCTC), as well as implementation guidelines and other decisions adopted by consensus of the States Parties to the treaty, and other international instruments including the Doha Declaration on TRIPS and Public Health.

In the case of the investment treaty challenge, the case could be thrown out before getting to the merits of the arguments on the basis that the suing company, the Hong Kong-based Philip Morris Asia, only bought into the Australian business after the Australian Government announced that it would introduce plain packaging laws, and should not be allowed to use the Australia-Hong Kong treaty to pursue a legal challenge to these very laws.

International trade and investment laws are not supposed to promote trade and investment for their own sake and at any cost. And they are not supposed to be cynically used to prevent governments from protecting the health of their citizens.

The international legal challenges to Australia's tobacco plain packaging still have a way to run. The panel considering the WTO cases has said that it won't hand down its report until the first half of 2016 at the earliest. A decision on whether the investment challenge should be allowed to proceed to a hearing on the merits of the case is some months away.

The resolution of the cases will likely have profound implications for global health and sustainable development in the twenty-first century, and for the WTO and the international investment law system. There is a lot at stake.

Enormous credit is due to successive Australian Governments - Labor and Coalition - for adopting the laws and vigorously defending them, and to other countries for following Australia's lead. Let's hope that WHO's projection that the death toll from tobacco this century could reach one billion people is nowhere near realised.

Originally published in online public health blog Croakey

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