The Non Smokers' Movement of Australia Inc.
Protecting the rights of the Non-smoking majority from tobacco smoke and the tobacco industry's propaganda.

'A Wasted Opportunity'

A Response to
The Smoke-Free Environments Amendment Bill 1996
by the Non-Smokers' Movement of Australia
Submitted to Social Services Committee of the New Zealand Parliament - January 1996.

The Non-Smokers' Movement of Australia Inc, Box K860, Haymarket NSW 1240.

Author: Arthur Chesterfield-Evans M.B., B.S., F.R.C.S.(Eng.), M.Appl.Sc.(OHS)

Summary of Submission

The new Smoke-Free Environments Amendment Bill is fatally flawed and a wasted opportunity to act on the tobacco problem.

As currently suggested the bill pretends to be a tightening of the act, but creates a situation where the law on sales to minors becomes unenforceable. It makes no effort to approach world's best practice in areas such as sales to minors, excise tax, packet warnings, tar levels, smoke-free volumes, advertising and vending machine bans, nor does it take any direct action against the Industry. In short, it is an abdication of excellence, and a do-nothing, delaying bill which will effectively buy time for the tobacco industry before some later more courageous government acts more strongly to end the epidemic.

Structure of this Submission

This submission has four parts:

The First Part which states the theses of this submission in a logical historical order.

The Second Part is written to correspond with the order of the clauses in the Bill and draws on the points made in the First Part.

The Third Part deals with items of tobacco policy that currently not in the Bill at all, but arguably should be.

The Fourth Part are four appendices:

1. The Recommendations of the Australian Senate Committee on the 'Tobacco Industry and the Cost of Tobacco-Related Illness',

2. The findings of the Australian National Health and Medical Research Council on The Health Effects of Passive Smoking',

3. A table of relative tobacco tax level in different countries, and

4. The suggested actions of the Canadian health minister in her package of measures against the tobacco industry.

First Part. Smoking in an Historical Context

1. A Long History of Inaction

Smoking was shown to cause lung cancer in any normal usage of this word in 1950. It is thus most strange that so little action has been taken to reduce smoking in the last 45 years and the reason for this must relate to the political and economic power of the tobacco industry. The end of the tobacco epidemic is certain, but governments that are courageous and act against the tobacco industry will save the lives of many of their citizens. Those that are weak or venal are exchanging the political convenience of the delays for the lives of their constituents.

2. The Campaign Against Smoking

This has been principally run by two groups:

a. Conventional health groups concerned about the deaths and disease caused to the smokers by the known poisons in tobacco and

b. Non-Smokers Rights groups who objected to others smoking for reasons of their own health and comfort.

The conventional health forces' campaign has been limited by the innate conservatism of their profession and the role model that the professions advises but acquiesces if the patient, or in the case of public health the government, does not take its advice. It also tries to be scientific, which means it tests and re-tests every hypothesis and questions every piece of evidence.

The non-smokers rights movements have historically been the most militant and politically aware. They initially thought that smokers might be their enemy, but found that smokers were rather embarrassed by their addiction and that almost all of the resistance to health measures has been from the tobacco industry.

3. Evolution of Absurd Paradigms

There has been a convergence of conventional health groups and the non-smokers rights movement, as the former have, albeit late and timidly, acknowledged a political paradigm. The evidence on passive smoking has mounted and given the conservative medical establishment a reason to actually act for the passive smokers' health. However those who should be interested in reducing smoking have tended to be satisfied with helping the passive smokers, leaving the smokers to 'their own choice'. This effectively means that the tobacco industry's view, that it smoking is 'free choice' has carried the day. The medical establishment has acted as if they have no right to actually take political measures to discourage people from smoking, yet it is regarded as natural that the industry would market its product, as part of the laudable 'free enterprise'.

On the other hand, it is regarded as interference by 'big brother' if the government makes a serious effort to discourage smoking amongst the group that suffer most, the active smokers. Surveys have shown that a large percentage of those who smoke would like to quit, but do not feel able to. In other words they are addicted. They therefore do not have 'free choice'. The result is the ironic position that those who are quite happy to kill people for their profits are allowed to do so and are not expected to desist in any way, while those who morally should act to help the smokers do not do so. The debate is absurdly framed. This is partly for historical reasons and partly because the tobacco industry has denied the evidence on active smoking long after their position was credible. As recent US documents from major tobacco companies have shown, they have maintained this farce long after they knew of the harmful effects of their products. They have successfully 'toughed it out'.

By any normal standard of product liability, the industry should have either withdrawn their products from the market, or tried to minimise their use. Failing this governments should have prosecuted the Industry for selling a product that they knew, or should reasonably have known was harmful. None of this has happened. However, many governments have gone further than this Smoke-Free Environments Amendment Bill seeks to go, so it is important to look at its deficiencies, which are massive, even in the minimalist context in which smoking and health legislation is usually framed.

4. Tobacco Marketing and Lobbying

The problem is that the industry continues to market its product, and hire lobbyists with the political connections of ex-Prime Ministers. It is therefore foolish to negotiate with the Industry about 'the Tobacco Problem'. 'Peer pressure' is not some mysterious force that comes from inexplicable adolescent minds. It is the peer groups leaders response to what seems exciting and daring. And what seems exciting and daring is determined as much as possible by tobacco marketers. Newly leaked documents from RJReynolds tell of attempts to hook children, and their behaviour in using the 'Joe Camel' cartoon character show what they will do even today if they are not hindered.

Tobacco advertising is still alive and well in point of sale advertising, use of sponsored images, placement in magazines and video clips by paying film stars or rock singers to smoke. It has now moved beyond product placement, where a film-maker is paid to use a certain product in the film, to where the script is written to emphasise certain properties of the product. This requires a good understanding and up to date action to counter it without using heavy handed censorship.

5. Strategies Against Tobacco

There are three traditional strategies that have been pursued, and of late four more have emerged:

a. Inhibition of advertising and education re the health hazards of tobacco.

This involves both advertising and sponsorship bans and actions on video games. The important element is flexibility to respond to each new marketing initiative. A school and community education programme is vital, though it can never be fully successful.

b. Smoke-Free Environments.

Smoke-free environments undermine the legitimacy of public smoking by treating smoke as a pollutant, which it is. The Roper Report, a tobacco industry leaked report from 1978 stated that the non-smokers' rights movement which would make smoke-free areas mandatory was the greatest threat to the Industry's long-term viability as it would undermine the social acceptability of smoking. This has proved to be the case and when a smoke-free environment was introduced into the Australian Federal Public service the amount smoked declined by 17%.

However, in considering smoke-free environments, it must be remembered that smoke is a vapour. It is therefore absurd to speak of smoke-free 'areas', based on floor areas- they should be based on volumes of air or 'spaces'. The act should thus refer to smoke-free volumes or 'spaces', not 'areas'.

c. Increase in excise.

There is good evidence that price reduces consumption especially in young people who are more price-sensitive than adult smokers. The tobacco industry has recently produced evidence against this, based on the fact that they have achieved a rise in smoking rates in Australian children in some states despite a rise in price. This, however, is merely good marketing combined with the fact that children's disposable income has risen. In Victoria, it was shown that the packets of 15 cigarettes were use by children as 'starter packs' as they were cheaper and easier to hide, and packets of less than 20 were banned in Australia in consequence.

The more recent areas of action in terms of tobacco strategy have been:

d. Child Access.

The idea that the child was innocent of buying the cigarettes seems to have allowed adults to act as if they cannot be expected to know the age of the purchaser. This is absurd as with many purchases such as chemicals, pharmaceuticals, firearms and alcohol there are restrictions at the point of sale. These can be enforced by reversing the onus of proof so that the seller must be able to prove that the buyer was over the statutory age. This can be done by a self-funded licensing scheme, where an annual licence to sell tobacco funds regular checks that sales to minors are not taking place. Police or inspectors, usually in association with local parents groups enforce this. Fines are at a realistic level and repeat offenders lose their tobacco licence. Given that tobacco is said to give about 10% of certain retailers, this is an important sanction. Western Australia is taking strong and successful action in this area.

In Australia vending machines are at present limited to licensed premises and the latest Senate Select Committee report recommends they be completely banned.

e. Classifying Tobacco as a Poison

Given the harmful effects of tobacco, it is remarkable that it has never been classed as a poison. But there is a reason for this. The tobacco industry was so powerful in Congress that it made a deal when the when the US Food and Drug Administration (FDA) was set up. If tobacco were not exempt, the bill would not go through. This is why tobacco has been exempted in similar bills ever since. Should legislators or regulators such as David Kessler in the US FDA succeed in reclassifying tobacco, it would bring its marketing and packaging under regulatory control, which could have an immense benefit. It is certain that this is possible and also pharmacologically sound- the question is which country will have the courage to do it first.

f. Generic Packaging

Much of the glamour of tobacco marketing lies in the imagery created. And the pack personalises the image to the smoker, linking him or her to the image. Thus to make the pack a common design would take much of the mystique from smoking and have a big effect on sales and particularly child recruitment to smoking. The Industry has threatened to sue the Australian government should they try this, but should tobacco previously have been classified as a Poison this may not be an insurmountable legal problem. Should they sue, a counter-suit as outlined below may be the answer.

g. Suing the Industry.

Since the tobacco industry is responsible for the tobacco epidemic, 5 state governments in the US are suing the industry for the cost of tobacco-caused illness. This direct action against the Industry is a desirable step, as it positions the Industry realistically where it is- as an enemy of public health. It also states a mature government that is willing to act for its citizens in a corporate sense- using the law to act for its constituents interest. Naturally the Industry lobbies very hard against this, and would prefer that they retain such good relationships with the government that it is unthinkable.

Second Part. Faults in the Present Draft Bill

New Zealand should try to match world's best practice in what it attempts to do. This Bill has all the hallmarks bill written with the 'help' of a tobacco company. It appears to be designed to protect the Industry from further action and that will hinder its marketing or extend smoke-free environments. It in no way approaches even a reasonable standard of action. This submission suggests best practice is occurring, and expresses concern that these approaches do not seem to have been considered in these amendments.

Section 3. Smoking in Casinos

As 73% of the New Zealand adult population do not smoke, it is unreasonable to have only 25% of the floor area smoke-free. In the smoke-free areas the whole volume of air should be smoke-free. The smoke-free areas should be 73% of the total unless there is hard evidence that there are more than 27% smokers in the gambling population. If the volume cannot be made smoke-free, then smoking should be banned in that volume. Section 3 should thus be amended to increase the percentage smoke-free to 75%, and should demand a total separation of the volumes of the smoking 'areas'.

Section 5. Sale to Minors

This is a 'Trojan Horse' section. Because the age is raised, it superficially appears that the act is being tightened. In fact, the sales to minors will be harder to police because if everyone believes that 18 year olds should be allowed to buy cigarettes, and there is no proof of age requirement, then it will be accepted that anyone who looks 18 is sold cigarettes. There is a powerful incentive not to think people are under age. If they are challenged, a young buyer may resent this and cause a confrontation, or simply go elsewhere, losing the seller that custom. On the other hand if the sale is made, there is an immediate profit, and the young buyer can flatter him or herself that they 'look mature' and have been complimented as such by the seller, reinforcing their desire to come to the shop. It must be noted that there are very few prosecutions currently for sales to minors and there are no new provisions in the draft bill to rectify this enforcement situation.

Leaving aside Singapore, where both the minor and the seller are guilty of an offence, in Western Australia there is an approach where the seller is responsible to ensure that the buyer is not a minor. Tobacco sellers are licensed. there is a system of compliance monitoring where children ask for cigarettes. If the seller sells to them they get a warning letter and if this happens again they are prosecuted. The fines are considerable, and repeat offenders lose their licence to sell. This has dramatically reduced sales to minors. To raise the age without improving the enforcement provisions is a recipe for the law becoming a joke, and this reflects on respect for the law in other areas, particularly in the minor crimes area, such as alcohol sales, vandalism and graffiti.

Section 5. Size Restrictions on Packs

Some years ago, Philip Morris introduced packs of 15 cigarettes in Australia. Though the company protested that these were for battling pensioners, it was found that children used them as 'starter packs', as they were easily concealed in their pencil cases and handbags, as well as cheap. Based on this, pack of less than 20 were banned in Australia. It is extraordinary that New Zealand should permit packs of 10. Has research been done on who buys these- or is the lack of research used to justify inaction? It should be presumed that the situation is the same as in Australia unless research is commissioned to disprove this. Packs less than 20 cigarettes should be banned

Section 6. Tobacco product advertising

The power to spend ones own money is an important milestone in a child's development. Shopping is an outing and an experience, and particularly when done alone is a rite of passage to adulthood. Shops which glamorise smoking at the point of sale distort priorities by making tobacco exciting and reinforcing the 'legitimacy' of tobacco as a product. There is no need to have tobacco advertising as ubiquitous as it is. The product naturally need a lot of advertising as it cannot sell on its merits- an expensive, addictive, dirty and ultimately harmful habit. It thus relies on an image at variance with the facts in order to achieve its sales. This must be discouraged. Section 6 as written is too discretionary. It should be abandoned and the code from Western Australia or even New South Wales should be adopted. In NSW, however, the Industry has produced smaller ads that go in the centre of a larger framed area, which thus directs the eye to the advertisement in the centre of the frame. They are also using colours previously established through sponsored events to keep the image of the cigarettes alive.

Active management of discouraging tobacco promotions must be practised. New Zealand should not blindly copy other countries, but should borrow from the best available. It might be noted that Canada is attempting to introduce a new code for tobacco similar to that of New Zealand. The current effort in New Zealand should examine this Canadian effort closely and see whether lessons can be learned. An outline of it is in Appendix 4.

Sections 4 and 5. Smoke-Free Indoor Environments

Smoke-free should be legislated as the norm. If casinos, hotels or anyone else chooses to have an area to cater for those who wish to pollute the atmosphere, this should be provided as a separate facility and not inflicted on the rest of the population. No employee should have to subject himself or herself to a known toxic poison in order to earn a living. Citizens have the right to unpolluted air, whether the polluter is a corporation or an individual. This is a generally accepted truth, and should be implemented at a national level. As one plaintiff in a passive smoking case in Australia put it 'people cannot vote away my rights'. The lack of resistance to the previous measures suggests that there is wide public support for smoking bans indoors, and Parliament should enact this as clearing up residual areas of non-action.

It might be noted that the Australian Senate Committee Report 'The Tobacco Industry and the Cost of Tobacco-Related Illness' of December 1995 has recommended this for Australia.

Section 32. Labelling and Health Messages

Australian health messages have been very thoroughly researched and the simple words on the flip top of the pack have been so successful that the displays used in stores show the back of the pack, to avoid showing the bold message on the front. this is despite the fact that the longer message on the back of the pack takes up a greater percentage of the area of the back of the pack than the front. The regulations carrying these should be able to be changed to increase their impact, and the right to make such changes should be given to a capable and motivated officer. Tobacco companies should be offered the option of removing the words 'Department of Health Warning.' This should be done in a formal way. It should be made clear that if they fail to agree to remove the words 'Department of Health Warning' then they are failing to acknowledge the harm of their products and cannot later rely on the warnings in any product liability litigation.

Sections 31,33 and 35. Limits on Harmful Constituents

New Zealand should have tar levels in cigarettes and cigarette tobacco as low or lower than other comparable countries. Currently this is not the case and a timetable should be imposed on the industry to lower tar levels in New Zealand to less than 10 mg per cigarette within 3 years.

Third Part. Items Not Covered in the Draft Bill.

Some important aspects of the problem of tobacco are not covered in this Bill.

1. Tobacco Tax.

Tobacco tax is a major force reducing consumption. Yet this has not been raised in this bill. New Zealand tax is not high by world standards. New Zealand is at 68% of the retail price. This is well below Denmark at 85%, the UK at 77%, Ireland 76%, Finland 74%, Italy 73%, and Germany at 72%. Tax should also be equal across tobacco products. It should not be possible for smokers to reduce tax by merely buying a different type of tobacco product.

2. Cessation Services

These should be a legitimate part of the health services offered as they are highly cost-effective. One in two smokers is likely to die of a smoking-caused disease, and one in four will die before retirement age, so the cost of cessation will be saved by postponing health costs. Put another way, cessation is an investment in health. Nicotine patches should be subsidised as they are an effective aid to quitting, but counselling should also be offered. However, it is important not to see tobacco merely in a medical model and cessation as similar to 'curing a disease'. The social environment that condones and allows smoking to be marketed as a legitimate activity has a toll in ill health and human misery that should be tackled. In short, the proposals above should be used to create a social climate adverse to tobacco use.

3. Suing the Tobacco Industry

Finally, New Zealand should sue the tobacco industry for the costs that it has generated and the harm that it has done to New Zealand's health. Five US states are now suing the Industry. The industry has always avoided regulation as much as possible and tried to play down the health effects. It thus retains responsibility for the health effects of its addictive products. The government should run this case as only it has enough resources to allow the court to test the issue fully. Failing this money should be given to a body to do this on the governments behalf.

Fourth Part. Appendices

Appendix 1. Recommendations of the Australian Senate Community Affairs References Committee into 'The Tobacco Industry and the cost of Tobacco-Related Illness', December 1995

Appendix 2. Recommendations of the Australian National Health and Medical Research Council Inquiry into the Health Effects of Passive Smoking

Appendix 3. List of Tobacco Tax Rates in Different Countries, from Non-Smokers' Rights Assoc. Canada

Appendix 4. Plans of the Canadian government for a package of measures to reduce the harm of tobacco.

The Non-Smokers' Movement of Australia Inc. Box K860, Haymarket NSW 1240.
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