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Jan 30, 2013

Stubbed out: why Australia is alone on cigarette plain packs

A push to enact Australian-style laws on plain packaging for cigarettes in the European Union has been still-born. James Panichi, a freelance reporter based in Brussels, investigates why.

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).

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

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19 comments

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19 thoughts on “Stubbed out: why Australia is alone on cigarette plain packs

  1. alistairj

    Whatever the outcome of the European stoush, I wonder at the wisdom of the Australian experiment- plain packaging is one thing but fear-porn decaying flesh pics are over the top and an affront to any decent human, smoking or non-smoking…the same logic would see dismembered limbs on new car ads and muffin tops and man-tits on fast food packaging. A smoker can not go within cooee of an alfresco venue in the ACT and Victoria while the diners happily sniff fumes from passing vehicles. A journo friend did a comparison of tobacco smoke and typical auto exhaust fumes.Her conclusion, ‘the auto lobby is very powerful’…

  2. John Bennetts

    On this issue, I am proud to be an Australian.

    The europeans appear to have a governance problem… so what’s new?

  3. CML

    Agree with alistairj – the whole Australian effort smacks of “nanny state”. And everyone I know who smokes transfers their cigarettes to another case anyway.

    And NO, JB – the Europeans don’t have a problem, WE DO!! If the Aus government was fair dickum, it would have made tobacco illegal. But no – it still likes to fleece the tobacco user with huge taxes. Hypocrites.

  4. zut alors

    In 1894 Oz set a precedent for the olde worlde when granting women the right to stand for parliament (at the same time granting equal voting rights which had already been legislated in NZ the previous year). We’re used to being innovative.

    Plain packaging is another example of us taking a bold step while other nations waver. The cigarette manufacturers know they are on borrowed time, they are merely delaying the inevitable decline of their business.

  5. Rambling Rose

    We are not alone. Chile has recently passed or will pass strict anti-tobacco laws. While passing through Santiago airport in Chile recently I saw that all cigarettes were in plain packaging.

    http://www.santiagotimes.cl/chile/politics/25556-chiles-congress-bans-smoking-in-bars-restaurants-and-nightclubs

  6. rhwombat

    alistairj. Let’s leave the false equivalence bullshit in the US where it (and you) belong, you corporate shill. Your squeals are music to my medical ears, since it means that we are winning. Make your blood money now, because I’ll see you later.

  7. erin benjamin

    Alistairj I’m not pretending to know u or ur experience but I know mine. 9 months ago I lived through my father dying at the hands of tobacco addiction and it was not only a hideous death but something you SHOULD fear. Until my father was refused a lung transplant because his addiction was so strong that he was smoking whilst on oxygen with full blown emphaseama did I realise just how addictive tobacco was and how little ‘choice’ he had in his smoking even after years of sickness. Sorry if your alfresco diners are put out, interested in seeing the study your friend did and see if it stacks up at all.

  8. Steve777

    Tobacco Companies are rogue corporations that market addictive poison to minors. Children decide to take up smoking. Adults rarely do. It is not practical to prohibit tobacco – about 17% of the Australian population is addicted to what has been an acceptable drug for centuries. We are not trying to stop those now addicted from buying tobacco and smoking it in private among consenting adults. But we must ban all forms of promotion and marketing to save another generation from becoming hooked and also to make it easier for those who shake the habit to stay clean. Plain packaging will work. How do we know? Big Tobacco hates it.

  9. Arty

    We have tried freedom – letting people destroy their lives with the help of nicotine.

    We could try outlawing tobacco, but we have used that model in our war against drugs and succeeded only in making millionaires of some very nasty people.with other

    The third way, plain packaging and TV advertising and other unfriendly policies just harass tobacco.

    When will we use similar harassment against alcohol?

  10. Arty

    We have tried freedom – letting people destroy their lives with the help of nicotine.

    We could try outlawing tobacco, but we have used that model in our war against drugs and succeeded only in making millionaires of some very nasty people.

    The third way, plain packaging and TV advertising and other unfriendly policies just harass tobacco.

    When will we use similar harassment against alcohol?