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.
