McCabe Centre: one year on

Monday 4 February, 2013
by Jonathan Liberman

Today, World Cancer Day, marks a year since the McCabe Centre commenced operation -as good a time as any for us to enter the blogosphere. We'll be blogging on a wide range of law-and-cancer issues over the months and years ahead, and running contributions from guest bloggers. So, please keep an eye on this page, and feel free to send us suggestions.

Plain packaging plainly constitutional - now for the international challenges

2012 was a big year in tobacco control. Australia's world-first plain packaging legislation was upheld by Australia's highest court on 15 August, and came fully into effect on 1 December. A few days later, Australia's Health Minister, Tanya Plibersek, launched the Voon, Mitchell, Liberman and Ayres (eds) book, ‘Public Health And Plain Packaging Of Cigarettes: Legal Issues'-a perfect way for us to celebrate implementation. The High Court's decision was a vindication of the Australian Government's resolve in the face of spurious tobacco industry claims, including that plain packaging was unconstitutional, and would be struck down by the High Court, and Australian taxpayers would have to pay billions of dollars in compensation to the industry (something that wasn't even possible under the legislation). We guess that if you're prepared to lie for decades about whether your products are deadly and addictive, legal trash-talking is no big deal.

Of course, the legal battles aren't over. Philip Morris Asia-which acquired its shareholding in Philip Morris Australia about 10 months after the Australian Government announced it would introduce plain packaging-is suing Australia under a bilateral investment treaty between Australia and Hong Kong. Procedural orders in the dispute were published a few weeks ago. Not surprisingly, they show that Philip Morris is not a huge fan of transparency. Unfortunately, because of the position Philip Morris has chosen to take in the proceedings, we're going to have to accept things like closed hearings and transcripts that never become public. And unless Philip Morris has a change of heart (probably a bad choice of word for a multinational tobacco company), its filings in the case will never see the light of day. Philip Morris even opposed the Australian Government releasing its own filings. Thankfully, the tribunal had the power to rule otherwise.

It would have been nice if Phillip Morris had taken a different approach, considering its claim is a challenge to legislation enacted by a democratically elected parliament; the parliament of a country whose domestic courts operate according to the principles of open justice, and which is faithfully implementing its obligations under a global health treaty-the WHO Framework Convention on Tobacco Control (FCTC)-which has 176 Parties, no less. Philip Morris should have had the guts and the decency to pursue its claim before the eyes of the world.

All of which raises a series of questions about how we found ourselves inside a system that enables challenges like this to be run, and what's going to happen in other trade and investment agreements presently under negotiation, the Trans Pacific Partnership Agreement being the most prominent example.

Meanwhile, at the World Trade Organisation, Ukraine, Honduras and the Dominican Republic-with the generous support of the tobacco industry-have all requested the establishment of a panel to hear their complaints against Australia's legislation.

These challenges have become emblematic cases about the capacity of the international trade and investment systems to co-exist with public health and other public interest imperatives. There is a lot at stake. And we have some very powerful weapons on our side - not least a solid evidence base and the FCTC, its guidelines, and a wealth of decisions adopted by its Conference of the Parties.

Global action on NCDs

2012 was also a big year in global efforts to prevent and treat non-communicable diseases (NCDs). In November, WHO Member States agreed on a global monitoring framework for NCDs, and last week the WHO's Executive Board endorsed the framework for adoption at May's World Health Assembly. On 11 February, The Lancet will publish its next series on NCDs. Among other papers, the series will address how to deal with alcohol and obesity in the face of powerful industries. There are parallels between alcohol and obesity policy and tobacco control, though alcohol and unhealthy food are not the same as tobacco, and we wouldn't expect them to be treated in exactly the same way. But with the global burden of NCDs continuing to increase, we're going to have to get better at using law to regulate the environment and the ways in which alcohol and unhealthy food are marketed and sold.

What else is happening...

On other fronts, our project looking at how law can work better for people affected by cancer is getting under way. And, in March, we'll be at the Commission on Narcotic Drugs in Vienna, where access to opioids for the relief of cancer and other pain will again be on the agenda, with the United Nations Office on Drugs and Crime's model drug laws under discussion. More on all of this as things unfold.

Finally, a special welcome to the McCabe Centre to Galina Samulenka, who started a McCabe Centre Fellowship with us last week. Galina, who trained as a lawyer in Belarus, is Legal Advisor and Deputy Director, Public Relations, at the Eurasian Federation of Oncology in Moscow. We're delighted to have her here.

Looking forward to a positive and productive 2013 and staying in touch!

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