Lawyers for major tobacco companies said Monday they do not want the full U.S. Court of Appeals for the D.C. Circuit to touch a panel’s ruling that went against the government’s controversial graphic warning labels requirement.

A divided three-judge panel of the D.C. Circuit in August ruled against the U.S. Food and Drug Administration’s requirement that cigarette packs carry graphic images that depict the dangers of smoking. Judge Janice Rogers Brown called the images “inflammatory” and said they were “unabashed attempts to evoke emotion.” The court said the proposed warning images violate the First Amendment.

The U.S. Justice Department wants the full D.C. Circuit to overturn the panel decision. Yesterday, responding to DOJ, lawyers for tobacco companies that include R.J. Reynolds and Lorillard urged the D.C. Circuit not to tangle with the panel decision. Ultimately, the U.S. Supreme Court could be asked for its assessment.

“The proposed warnings will not create more informed consumers and were never intended to,” Jones Day litigation partner Noel Francisco, lead counsel for R.J. Reynolds Tobacco Co., said in a court filing Monday. Francisco also said the images “had no measurable effect on consumer knowledge of the smoking risks the warnings address.”

From this date forward, all cigarettes will be sold in drab, olive-green packaging with enormous health warnings, with the brand only visible in a small, standard font. The government hopes to make smoking less appealing to children and reduce smoking levels population-wide. “This is good news for every Australian parent who worries about their child picking up an addictive and deadly habit”, said Roxon, who, as Australia’s former Minister for Health and Ageing, introduced this pioneering legislation. Big tobacco has not yet given up, with two other cases ongoing. Philip Morris Asia is suing Australia for breach of an investment treaty with Hong Kong, while Ukraine, Honduras, and the Dominican Republic have fi led a complaint with the World Trade Organization, claiming the legislation breaches Australia’s commitment under global trade rules. Both cases are likely to take years and will not prevent Australia actually introducing plain packaging. However, should the tobacco companies succeed, the government would likely have to fi nancially compensate them for their loss of brand (but not withdraw the plain packaging).

WHO Director-General Margaret Chan said she hoped that this decision would start a domino-eff ect of similar legislation in other countries, helping prevent some of the 6 million deaths estimated to be caused by smoking every year. The UK has just fi nished a consultation on plain packaging and another is ongoing in New Zealand.

The European Union has announced it will probably revise its tobacco products directive during 2012, which could include plain packaging measures. “This decision will embolden governments, especially in low- and middle-income countries, that have been hesitant to implement the
measures in the WHO Framework Convention on Tobacco Control [FCTC], fearing some sort of ‘backlash’ from the tobacco industry, such as a lawsuit”, said Laurent Huber, Director of the
Framework Convention Alliance, a group of more than 350 organisations in more than 100 countries that support the FCTC. “India, South Africa, Indonesia, and China are said to be
considering plain packaging”, he added.

By Tony Kirby of the Lancet

Scientists from Canada, the United States and Brazil conducted a study of 640 young Brazilian women to determine if cigarettes had the same appeal when presented in plain packaging.

“The women in this study rated branded packs as more appealing, more stylish and sophisticated than the plain packs,” said study leader David Hammond of the University of Waterloo, Canada.

“They also thought that cigarettes in branded packs would be better tasting and smoother. Removal of all description from the packs, leaving only the brand, further reduced their appeal. In the pack offer test, participants were three times more likely to choose the branded pack as a free gift.”

British American Tobacco New Zealand (BATNZ) last month launched a print, television and radio campaign costing hundreds of thousands of dollars in response to the New Zealand Government’s plan to strip all branding from cigarette packs to make them less attractive to smokers.

BATNZ’s general manager Steve Rush said plain packaging created a “disturbing precedent” for other industries, adding that the British Government was considering a similar proposal for alcohol.

He said New Zealand should not “blindly follow Australia’s lead” with policy he said was unproven in helping to curb smoking.

But the latest study adds to mounting criticism of such claims.

Professor Alistair Woodward, head of the University of Auckland’s School of Population Health, said the findings fitted in with what had been observed elsewhere – that tobacco packaging affects the opinions and behaviours of smokers.

“The tobacco industry knows very well the value of brand packaging. This is why they have invested so heavily in design and illustration in the past, and why the industry now opposes plain packaging so vehemently,” he said.

Janet Hoek of the University of Otago’s Department of Marketing said the paper added to the growing evidence base supporting the plain-packaging measure.

“Overall, this study reinforces earlier work showing how plain packaging will reduce perceptions of smoking and diminish the benefits smoking is perceived to deliver.

“In addition, New Zealand research has found that plain packaging not only affects smokers’ perceptions, but influences their choice behaviours – significantly fewer select ‘plain’ packages – and likelihood of making a quit attempt.” Health Minister Tony Ryall said last month that BATNZ was “wasting its money” on its campaign.

He believed New Zealanders were turning against tobacco companies and their marketing strategies.

“New Zealanders have moved on from being influenced in this way. There is a lot of support for what the Government is doing in tobacco.”

The Ministry of Health has put out a consultation paper on plain packaging and expects to report back on the findings on October. The Government has agreed to support the policy change in principle.

By Matthew Theunissen

See this article at its original location>

You may recall earlier this year when the U.S. lost a legal appeal over its ban on candy flavorings for cigarettes, flavorings clearly meant to attract children to start smoking. The plaintiff in that case was the nation of Indonesia, which exports a lot of clove-flavored “bidis” to the U.S. The court was an international trade tribunal formed by the World Trade Organization. Under WTO rules, a country may drag another country to court over any laws that it feels violate trade rules. The decisions are binding, and the trade tribunals’ final decisions cannot be overruled, even by the U.S. Supreme Court.

ISDS creates a similar right to sue over any law that impacts trade, except that it allows any corporation to sue a country in an international trade tribunal. In the example above, the Indonesian tobacco industry would not have needed to convince the government to sue on its behalf. It could do so on its own. And the suits need not be against federal laws. They could go after state and local tobacco laws and regulations as well.

The reason this is particularly problematic for tobacco is that the tobacco industry has publicly stated that its strategy is to sue even when they don’t have a good case, just to impose an economic punishment on governments who try to reduce smoking. Trade cases cost millions of dollars each, win or lose. The federal government may be able to afford a vigorous defense, but states, counties and cities already facing historic deficits are a different story. Industry’s goal is to “chill” governments from passing tobacco control laws in the first place, just to avoid costly court cases.

For a real life example of what ISDS can mean in the face of a cynical, rich industry, read about Australia’s experience>

Those of us who place life higher than corporate profit can find some solace. First, a different appeals court in Cincinnati came to the opposite conclusion in March, which means that the Supreme Court is very likely to hear the case (assuming the FDA appeals). We can’t be sure how the highest court will rule, of course, but a number of legal scholars have opined that the case against the warnings is flawed.

Second, there was an excellent opinion from the dissenting judge:

“The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers.”

Given that the tobacco industry has already been found guilty of criminal racketeering in their efforts to hide the health impacts of their products, this opinion makes a lot more sense than protecting criminals’ rights to free speech.

The 2-1 decision by the court in Washington, D.C., contradicts another appeals court’s ruling in a similar case earlier this year, setting up the possibility the U.S. Supreme Court will weigh in on the dispute.

The court’s majority in the latest ruling found the label requirement from the U.S. Food and Drug Administration violated corporate speech rights.

“This case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country mini billboard’ for the government’s anti-smoking message,” wrote Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.

The FDA “has not provided a shred of evidence” showing that the graphic labels would reduce smoking, Brown added.

Five tobacco companies representing most of the major cigarette makers in the United States challenged the FDA rules: Reynolds American Inc, Lorillard Inc; Commonwealth Brands Inc, which is owned by Britain’s Imperial Tobacco Group Plc; Liggett Group LLC and Santa Fe Natural Tobacco Co Inc.

The FDA has argued the images of rotting teeth and diseased lungs are accurate and necessary to warn consumers — especially teenagers — about the risks of smoking.

The health agency said on Friday that it does not comment on possible, pending or ongoing litigation. The U.S. Department of Justice, which argued the case for the FDA, said it needs to review the ruling before deciding on next steps.

The Campaign for Tobacco-Free Kids, which has vigorously supported stricter cigarette laws, urged the government to appeal.

“Today’s ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings,” said Matthew Myers, the group’s president, in a statement.

YOUTH EPIDEMIC

The Centers for Disease Control and Prevention estimates some 45 million U.S. adults smoke cigarettes, which are the leading cause of preventable death in the United States. And the World Health Organization predicts smoking could kill 8 million people each year by 2030 if governments do not do more to help people quit.

The U.S. Surgeon General warned in March that youth smoking has reached epidemic proportions, as one in four U.S. high school seniors is a regular cigarette smoker, paving the way to a lifetime of addiction.

Judge Judith Rogers, who wrote the dissenting opinion, said the FDA warnings were factual, and necessary to counter tobacco companies’ history of deceptive advertising.

“The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers,” she wrote.

Congress passed a law in 2009 that gave the FDA broad powers to regulate the tobacco industry, including imposing the label regulation. The law requires color warning labels big enough to cover the top 50 percent of a cigarette pack’s front and back panels, and the top 20 percent of print advertisements.

The FDA released nine new warnings in June 2011 that were meant to go into effect this September, the first change in U.S. cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General.

The ruling against the FDA means tobacco companies will likely not have to comply with the requirements for now, given divergent court rulings.

The U.S. Appeals Court for the 6th Circuit, based in Cincinnati, upheld the bulk of the FDA’s new tobacco regulations in March, including the requirement for warning images on cigarette packs.

The difference in the two cases is that the FDA had not introduced the specific images when the companies filed the 6th Circuit suit. While the Washington suit focused on the images, the appeals court in Cincinnati addressed the larger issue of the FDA’s regulatory power.

Most countries in the European Union already carry graphic images to illustrate the health risks of smoking. Earlier this month, Australia took a further step to limit smoking advertising by banning company logos on cigarette packs, and the EU said it was considering a similar ban.

By David Ingram and Anna Yukhananov

See the article at its original location >

The World Health Organization (WHO) strongly welcomes the landmark decision from Australia’s High Court to dismiss a legal challenge from the tobacco industry, and calls on the rest of the world to follow Australia’s tough stance on tobacco marketing.

Several major tobacco companies challenged Australia’s legislation to require cigarettes and other tobacco products to be sold in plain packaging without any branding. But the industry’s attempt to derail this effective tobacco control measure failed. As of December 2012, Australia will be the first country to sell cigarettes in drab, olive-green packaging without branding.

With Australia’s victory, public health enters a brave new world of tobacco control. Plain packaging is a highly effective way to counter industry’s ruthless marketing tactics. It is also fully in line with the WHO Framework Convention on Tobacco Control. The lawsuits filed by Big Tobacco look like the death throes of a desperate industry. With so many countries lined up to ride on Australia’s coattails, what we hope to see is a domino effect for the good of public health.

The case is being watched closely by several other countries who are considering similar measures to help fight tobacco.

The evidence on the positive health impact of plain packaging compiled by Australia’s High Court will benefit other countries in their efforts to develop and implement strong tobacco control measures to protect the health of their people and to stand resolute against the advances of the tobacco industry.

Tobacco use is one of the most preventable public health threats. Tobacco products will eventually kill up to half of the people who use them – that means nearly six million people die each year. If governments do not take strong action to limit exposures to tobacco, by 2030 it could kill more than eight million people each year.

The WHO Framework Convention for Tobacco Control entered into force in 2005. Parties are obliged over time to take a number of steps to reduce demand and supply for tobacco products including: protecting people from exposure to tobacco smoke, counteracting illicit trade, banning advertising, promotion and sponsorship, banning sales to minors, putting large health warnings on packages of tobacco, increasing tobacco taxes and creating a national coordinating mechanism for tobacco control. More than 170 countries are Parties to the Convention.

For further information, please contact:

Glenn Thomas
Communications Officer
WHO
Telephone: +41 22 791 3983
Mobile: +41 79 509 0677
E-mail: thomasg@who.int

Read this release at its original location >

Historic Measure Highlights Need for Stronger Action in U.S.

Yesterday, Australia’s highest court found against the tobacco industry and in favor of the government’s right to protect public health by upholding plain packaging for tobacco products. The new package requirements, which will include large graphic health warnings against a drab green background with only the name of the brand without any colors or other indicators, will go into effect on December 1^st.

Australia is the first country to introduce plain packaging, a measure recommended under the Framework Convention on Tobacco Control, the world’s first public health treaty. While over 50 countries now require graphic health warnings, Australia’s plan goes a step further. Having banned all other tobacco advertising, promotion and sponsorship, plain packaging removes the last public space for the tobacco industry to market its deadly products. Several other countries, including New Zealand, the United Kingdom and the European Union, are considering plain packaging.

“This is a milestone in our decades-long global effort to end the tobacco epidemic,” said Laurent Huber, Executive Director of Action on Smoking and Health (ASH), the nation’s oldest anti-tobacco organization. “With the injunction against FDA-mandated graphic warning labels, the U.S. has fallen far behind in efforts to protect people from addiction and early death from tobacco use.”

A federal court found that new U.S. warning labels, which depicted the harmful effects of smoking, were unconstitutional. The decision is currently under appeal.

Canada had considered plain packaging in the late 1990s, but backed off when the tobacco industry threatened to sue under the North American Free Trade Agreement. Trade agreements have increasingly been used by Big Tobacco to block or impede tobacco control measures. Australia’s victory in its high court is not the only legal barrier to be overcome – Philip Morris International has sued under an Australia-Hong Kong bilateral investment treaty, and three countries (Ukraine, Honduras and the Dominican Republic) have filed complaints with the World Trade Organization.

“The international trade legal regime was never envisioned to preclude governments from protecting the health of their people,” said Chris Bostic, Deputy Director of ASH. “The tobacco industry should not be permitted to abuse the international legal system in an effort to intimidate governments.”

In addition to Australia, the tobacco industry has launched trade lawsuits against Uruguay and Norway, among others. Earlier this year, the United States lost a trade dispute with Indonesia over its ban on flavorings, including candy flavorings clearly aimed at children.

We applaud Australia’s courage to stand up to the tobacco industry, their determination to protect the health of their citizens and be a world leader in public health.

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