Eric Crosbie

The evolution of health warning labels on cigarette packs: the role of precedents, and tobacco industry strategies to block diffusion

Objective To analyse the evolution and diffusion of health warnings on cigarette packs around the world, including tobacco industry attempts to block this diffusion. Methods We analysed tobacco industry documents and public sources to construct a database on the global evolution and diffusion of health warning labels from 1966 to 2012, and also analysed industry strategies. Results Health warning labels, especially labels with graphic elements, threaten the tobacco industry because they are a low-cost, effective measure to reduce smoking. Multinational tobacco companies did not object to voluntary innocuous warnings with ambiguous health messages, in part because they saw them as offering protection from lawsuits and local packaging regulations. The companies worked systematically at the international level to block or weaken warnings once stronger more specific warnings began to appear in the 1970s. Since 1985 in Iceland, the tobacco industry has been aware of the effectiveness of graphic health warning labels (GWHL). The industry launched an all-out attack in the early 1990s to prevent GHWLs, and was successful in delaying GHWLs internationally for nearly 10 years. Conclusions Beginning in 2005, as a result of the World Health Organisation Framework Convention on Tobacco Control (FCTC), GHWLs began to spread. Effective implementation of FCTC labelling provisions has stimulated diffusion of strong health warning labels despite industry opposition.

Tobacco industry argues domestic trademark laws and international treaties preclude cigarette health warning labels, despite consistent legal advice that the argument is invalid

Objectives To analyse the tobacco industrys use of international trade agreements to oppose policies to strengthen health warning labels (HWLs). Design A review of tobacco industry documents, tobacco control legislation and international treaties. Results During the early 1990s, the tobacco industry became increasingly alarmed about the advancement of HWLs on cigarettes packages. In response, it requested legal opinions from British American Tobaccos law firms in Australia and England, Britains Department of Trade and Industry and the World Intellectual Property Organisation on the legality of restricting and prohibiting the use of their trademarks, as embodied in cigarette packages. The consistent legal advice, privately submitted to the companies, was that international treaties do not shield trademark owners from government limitations (including prohibition) on the use of their trademarks. Despite receiving this legal advice, the companies publicly argued that requiring large HWLs compromised their trademark rights under international treaties. The companies successfully used these arguments as part of their successful effort to deter Canadian and Australian governments from enacting laws requiring the plan packaging of cigarettes, which helped delay large graphic HWLs, including ‘plain’ packaging, for over a decade. Conclusions Governments should not be intimidated by tobacco company threats and unsubstantiated claims, and carefully craft HWL laws to withstand the inevitable tobacco industry lawsuits with the knowledge that the companies’ own lawyers as well as authoritative bodies have told the companies that the rights they claim do not exist.

Strong advocacy led to successful implementation of smokefree Mexico City

Objective To describe the approval process and implementation of the 100% smokefree law in Mexico City and a competing federal law between 2007 and 2010. Methods Reviewed smokefree legislation, published newspaper articles and interviewed key informants. Results Strong efforts by tobacco control advocacy groups and key policymakers in Mexico City in 2008 prompted the approval of a 100% smokefree law following the WHO FCTC. As elsewhere, the tobacco industry utilised the hospitality sector to block smokefree legislation, challenged the City law before the Supreme Court and promoted the passage of a federal law that required designated smoking areas. These tactics disrupted implementation of the City law by causing confusion over which law applied in Mexico City. Despite interference, the City law increased public support for 100% smokefree policies and decreased the social acceptability of smoking. In September 2009, the Supreme Court ruled in favour of the City law, giving it the authority to go beyond the federal law to protect the fundamental right of health for all citizens. Conclusions Early education and enforcement efforts by tobacco control advocates promoted the City law in 2008 but advocates should still anticipate continuing opposition from the tobacco industry, which will require continued pressure on the government. Advocates should utilise the Supreme Courts ruling to promote 100% smokefree policies outside Mexico City. Strong advocacy for the City law could be used as a model of success throughout Mexico and other Latin American countries.

Tobacco industry success in Costa Rica: the importance of FCTC article 5.3

OBJECTIVE To analyze how the tobacco industry influenced tobacco control policymaking in Costa Rica. MATERIALS AND METHODS Review of tobacco industry documents, tobacco control legislation, newspaper articles, and interviewing of key informants. RESULTS During the mid-to-late 1980s, Health Ministry issued several advanced (for their time) smoking restriction decrees causing British American Tobacco (BAT) and Philip Morris International (PMI) to strengthen their political presence there, resulting in passage of a weak 1995 law, which, as of August 2011, remained in effect. Since 1995 the industry has used Costa Rica as a pilot site for Latin American programs and has dominated policymaking by influencing the Health Ministry, including direct private negotiations with the tobacco industry which violate Article 5.3s implementing guidelines of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC). CONCLUSIONS The Costa Rica experience demonstrates the importance of vigorous implementation of FCTC Article 5.3 which insulates public health policymaking from industry interference.

The importance of continued engagement during the implementation phase of tobacco control policies in a middle-income country: the case of Costa Rica

Objective To analyse the process of implementing and enforcing smoke-free environments, tobacco advertising, tobacco taxes and health warning labels from Costa Ricas 2012 tobacco control law. Method Review of tobacco control legislation, newspaper articles and interviewing key informants. Results Despite overcoming decades of tobacco industry dominance to win enactment of a strong tobacco control law in March 2012 consistent with WHOs Framework Convention on Tobacco Control, the tobacco industry and their allies lobbied executive branch authorities for exemptions in smoke-free environments to create public confusion, and continued to report in the media that increasing cigarette taxes led to a rise in illicit trade. In response, tobacco control advocates, with technical support from international health groups, helped strengthen tobacco advertising regulations by prohibiting advertising at the point-of-sale (POS) and banning corporate social responsibility campaigns. The Health Ministry used increased tobacco taxes earmarked for tobacco control to help effectively promote and enforce the law, resulting in high compliance for smoke-free environments, advertising restrictions and health warning label (HWL) regulations. Despite this success, government trade concerns allowed, as of December 2015, POS tobacco advertising, and delayed the release of HWL regulations for 15 months. Conclusions The implementation phase continues to be a site of intensive tobacco industry political activity in low and middle-income countries. International support and earmarked tobacco taxes provide important technical and financial assistance to implement tobacco control policies, but more legal expertise is needed to overcome government trade concerns and avoid unnecessary delays in implementation.

Defending strong tobacco packaging and labelling regulations in Uruguay: transnational tobacco control network versus Philip Morris International

Objective Describe the process of enacting and defending strong tobacco packaging and labelling regulations in Uruguay amid Philip Morris International’s (PMI) legal threats and challenges. Methods Triangulated government legislation, news sources and interviews with policy-makers and health advocates in Uruguay. Results In 2008 and 2009, the Uruguayan government enacted at the time the world’s largest pictorial health warning labels (80% of front and back of package) and prohibited different packaging or presentations for cigarettes sold under a given brand. PMI threatened to sue Uruguay in international courts if these policies were implemented. The Vazquez administration maintained the regulations, but a week prior to President Vazquez’s successor, President Mujica, took office on 1 March 2010 PMI announced its intention to file an investment arbitration dispute against Uruguay in the International Centre for the Settlement of Investment Disputes. Initially, the Mujica administration announced it would weaken the regulations to avoid litigation. In response, local public health groups in Uruguay enlisted former President Vazquez and international health groups and served as brokers to develop a collaboration with the Mujica administration to defend the regulations. This united front between the Uruguayan government and the transnational tobacco control network paid off when Uruguay defeated PMI’s investment dispute in July 2016. Conclusion To replicate Uruguay’s success, other countries need to recognise that strong political support, an actively engaged local civil society and financial and technical support are important factors in overcoming tobacco industry’s legal threats to defend strong public health regulations.

Tobacco control law implementation in a middle-income country: Transnational tobacco control network overcoming tobacco industry opposition in Colombia

ABSTRACT The objective of this paper is to examine the implementation of Colombias tobacco control law. Methods involved are triangulated government legislation, news sources, and interviews with policy-makers and health advocates in Colombia. Colombia, a middle-income country, passed a tobacco control law in 2009 that included a prohibition on tobacco advertising, promotion, and sponsorship; and required pictorial health warning labels, ingredients disclosure, and a prohibition on individual cigarette sales. Tobacco companies challenged the implementation through litigation, tested government enforcement of advertising provisions and regulations on ingredients disclosure, and lobbied local governments to deprioritise policy responses to single cigarette sales. A transnational network including international health groups and funders helped strengthen domestic capacity to implement the law by; promoting public awareness of Ley [Law] 1335; training local health department staff on enforcement; facilitating health agencies’ sharing of educational strategies; and providing legal defence assistance. This network included vigilant efforts by local health groups, which continuously monitored and alerted the media to noncompliance, engaged government officials and policy-makers on implementation, and raised public awareness. Support from international health NGOs and funders and continuous engagement by local health groups enhanced implementation capacities to counter continued tobacco industry interference and ensure effective tobacco control implementation.

Containing diffusion: the tobacco industry’s multipronged trade strategy to block tobacco standardised packaging

Objective To analyse the tobacco industry’s strategy of using trade and investment agreements to prevent the global diffusion of standardised packaging (SP) of tobacco products. Methods Review of tobacco industry documents, relevant government documents and media items. The data were triangulated and thematically analysed. Results Internal tobacco industry documents reveal that during the early 1990s, tobacco companies developed a multipronged trade strategy to prevent the global diffusion of progressive tobacco packaging and labelling proposals, including SP. This strategy consisted of (1) framing the health issue in terms of trade and investment, (2) detailing alleged legal violations concerning trade barriers, intellectual property and investment rights, (3) threatening legal suits and reputational damage, and (4) garnering third-party support. These efforts helped delay SP until 2010 when Australia became the first country to reintroduce SP proposals, followed by governments in the UK and New Zealand in 2012, Ireland in 2013 and France in 2014. Review of government documents and media sources in each of the five countries indicate the industry continues to employ this multipronged strategy throughout the SP policy’s progression. Although this strategy is tailored towards each domestic context, the overall tobacco industry’s trade strategy remains consistently focused on shifting the attention away from public health and towards the realm of trade and investment with more corporate-friendly allies. Conclusion Governments seeking to implement SP need to be prepared to resist and counter the industry’s multipronged trade strategy by avoiding trade diversions, exposing false industry legal and reputational claims, and monitoring third-party support.

Advancing progressive health policy to reduce NCDs amidst international commercial opposition: Tobacco standardised packaging in Australia

ABSTRACT This study examines how health advocates and the Australian government responded to international commercial pressure during the implementation of tobacco standardised packaging (SP) as a measure to reduce non-communicable diseases (NCDs). Relevant government and NGO documents, and media items were reviewed. Policymakers and health advocates (n = 19) in Australia were interviewed. In 2009, Australia’s National Health Taskforce recommended SP, which the Australian government announced in April 2010. In response, tobacco companies threatened the government with litigation in both domestic and international courts, claiming that SP would violate their investment and intellectual property rights. However, these legal threats were unsuccessful in forcing the government to withdrawal the SP proposal. Tobacco companies legally challenged SP, but as of February 2018 failed with each legal challenge. The political success of enacting and implementing SP against international commercial pressure was supported by legal preparation and support, and a whole-of-government approach. The Australian SP case illustrates how, against international commercial opposition, governments can build and maintain political and official support to enact and implement progressive public health measures to reduce NCDs.