You might think Eurocrats strolling the corridors of power don’t spend much time thinking about Australia. You’d be wrong. Australia’s plain packaging tobacco legislation — and its international struggle for survival — is being closely watched in Brussels.
The push for the European Union to emulate Australia on packaging laws, however, has stalled. And here’s why.
The European Commission — the EU’s executive — is updating its 11-year-old legislation regulating the sale of tobacco products. The plan had been to sort through the 27 EU member states’ often wildly divergent tobacco legislation and bring some updated scientific research to the table. The effectiveness of health warnings on packets — and the packaging itself — was front and centre of this review.
The bill requires that 75% of the pack’s surface be used for health warnings (including Australian-style graphic material: tarred lungs, cancerous growths, etc).
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If approved, the legislation would be a major victory for European health authorities. Only 10 European countries currently use graphic warnings, and they usually cover between 35% and 50% of the packet. Another step would be the banning of flavoured cigarettes of all kinds (possibly including menthol), along with snazzy packs of 20s popular with kids and young women.
But when it came to plain packaging in the EU, something unusual happened — the proposal was rejected. This is despite the Commission’s impact assessment claiming repeatedly Australian-style plain packaging would achieve policy objectives “even more effectively” than other options. It says a “lack of real life experience” (that is, no European country had tried it) made it too risky, along with the risk of pending legal disputes (Australia’s ongoing battle at the World Trade Organisation). And, of course, the reservations of “stakeholders” (read: tobacco companies).
This is a reference to the industry’s concern that plain packaging leads to the illicit trade of tobacco products, although the assessment itself later dismisses that theory as not “fully substantiate[d]”. In short, the Commission’s bureaucrats have already rejected the reasons they themselves give for turning down the plain packaging option.
“It boils down to political will,” said Florence Berteletti Kemp, director of Smoke Free Partnership, a Brussels NGO. “They are arguing that if Australia loses the case [at the WTO], then it would have been a mistake for the European Commission to have put this proposal. So they are waiting.”
But the case before the WTO still has a long way to go. Three countries are lining up against Australia’s plain packaging legislation: Ukraine, Dominican Republic and Honduras (although only Ukraine is currently up to speed with the paperwork). Among their accusations is that the legislation amounts to “dramatic regulatory meddling” and is without medical foundation. They argue the laws breach Australia’s international trade obligations.
“The void will be filled by tobacco lobbyists. In fact, it already has been.”
A panel will be established, the parties will quibble over the panel’s membership … it will take a while, at least a year: no decision is expected out of Geneva before 2014. But until it’s resolved, European legislators will steer clear of plain packaging.
The void will be filled by tobacco lobbyists. In fact, it already has been. Through the local version of FOI legislation, local NGOs have found that the office of Commission President José Manuel Barroso met with lobbyists at least 15 times to discuss the legislation (anti-tobacco groups weren’t granted direct access).
Documents obtained under FOI by a Brussels-based NGO reveal the Secretary-General of the European Commission — the EC’s top bureaucrat, Catherine Day — then wrote to the Commission’s health department to delay the bill’s release. It was puzzling: the Secretary-General’s concerns had already been examined and dismissed by those drafting the legislation. But the release was postponed.
The success of this bill is all in the timing. And the timing is difficult. In fact, the release of the Tobacco Products Directive has been so delayed that its chances of getting through the legislative process before the next European parliamentary elections in 2014 are now close to zero.
“The tactics of the tobacco industry have been to block, or delay, or amend the process,” said Berteletti Kemp. “Which is what they did in Australia. They know that Australia will probably win [at the WTO], but they are threatening governments around the world with this pending judgement, ensuring that not other government other than Australia will introduce plain packaging.”
As this has been unfolding, Brussels has become transfixed by one of the biggest mysteries of the tobacco stoush: what’s become known as “Dalligate”. Two months before the release of the directive, the Commission’s Health Minister, the Maltese John Dalli, was sacked (or resigned, according to who you believe). The charges levelled against him were that he knew of attempts to obtain bribes from tobacco company Swedish Match — what prosecutors described somewhat contradictorily as “unambiguous, circumstantial pieces of evidence”.
Dalli, who was a strong campaigner for tobacco reform, rejects any knowledge of the bribery attempt and the case will now be resolved by a Maltese court. But FOI requests have revealed Day kept in close contact with Swedish Match Senior Vice President Fredrik Peyron. The Commission’s most senior public servant even wrote to Peyron to announce Dalli’s resignation — before the decision had been made public.
All of this points to a level of dysfunction in what could become Europe’s tobacco framework for at least another decade. Tough proposed legislation is stillborn, while bureaucrats admit plain packaging is the best option but fear tobacco companies. And lobbyists are in regular (although largely unreported) contact with the highest levels of the European bureaucracy.
*James Panichi is an ABC Radio National journalist on extended leave in Brussels