New Zealand notified its intention to introduce the legislation in documentG/TBT/N/NZL/62, which includes a link to its health ministry for further information. The proposal was agreed in principle by the Cabinet in April 2012, New Zealand said, and was open for consultation from July to October. Information and comments are being compiled and no draft legislation has been issued so far, it said.

The delegation said smoking is the most serious preventable cause of death in New Zealand, and is most serious among the Maori population. The government aims to make the country essentially smoke-free by 2025, it said.

Expressing concern were the Dominican Republic, Honduras, Nicaragua, Nigeria, Mexico, Zambia, Cuba and Zimbabwe. They said the measure would hurt their tobacco producers and would restrict trade more than is necessary to meet the health objectives.

Supporting New Zealand were Australia, Norway and Canada, and the World Health Organization (an observer in the committee). They said the measure is justifiable in view of how serious are the problems caused by smoking.

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Examples of the new plain cigarette packaging in Australia Photo: Rex Features

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.”

A packet of Winfield Blues is no longer the colour its name would suggest – instead a sickly looking olive green sets the ailing backdrop for photos of health-plagued smokers in various states of decay.

The new packets, which use the same font for any brand or type of cigarette, will be the only legal packaging available from December onwards.

Free Choice Tobacconist owner Robert Anderson said his Hooper Centre store had already sold most of its old, colourful stock.

If any old packets are still in circulation when December arrives, representatives from tobacco companies will buy them back from stockists.

He believed smokers would not take the decision lightly.

“I think the new packets are obscene, but that’s what the government wants,” he said.

“If they think it’s going to stop people from smoking cigarettes, they’ve got another think coming.

“It’s the worst thing they could do if they want the votes of the smoking public . . . another nail in the government’s coffin.”

Mr Anderson said he was not worried about any negative impact on his business.

He said it would only help sales of certain smoking accessories.

“The general public feeling is that it’s a fair dinkum joke,” he said.

“I think the sale of cigarette cases (to cover the disturbing images) will really come to the fore.”

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During the 3 months that the ads aired on TV, radio, and social media, calls to a national quit line more than doubled and hits on the smoking cessation website smokefree.gov tripled, according to Nancy Rigotti, MD, of Massachusetts General Hospital, and Melanie Wakefield, PhD, of the Cancer Council Victoria in Australia.

Whether the boosted short-term response will translate to a lower smoking prevalence remains to be seen, and the CDC is watching closely. It has sponsored an ongoing longitudinal study of 5,000 adult smokers and 2,000 adult nonsmokers who completed online surveys a month before the campaign launched and immediately after it ended.

The stars of the ads were former smokers who were now living with the consequences of smoking — particularly the stoma, which turns voices robotic.

“Emotive personal testimonials and narratives are powerful strategies for reaching and influencing the broad population of smokers,” the researchers wrote. “Emotionally laden stories show the risks of tobacco use in a far more potent way than abstract information can.”

The idea was to “increase smokers’ sense of personal vulnerability to serious disease and increase their sense of urgency for quitting,” they wrote.

In the survey, respondents were asked questions about their awareness of the campaign, as well as their attitudes toward smoking cessation and secondhand smoke exposure.

Nonsmokers also were asked if they had encouraged friends or family members to quit. Survey results are expected by the end of the year, the researchers wrote.

The public health literature is on the CDC’s side, Rigotti and Wakefield wrote, with strong evidence that mass-media education campaigns can have an impact on behavior, particularly when it comes to smoking.

They warned that the campaign’s brief 3-month run will probably limit its effects. CDC said it will run another 3-month campaign in the first quarter of 2013.

Funding for the ad series, titled “Tips From Former Smokers,” came from the Affordable Care Act’s prevention and public health fund. The $54 million pricetag was an “unprecedented” amount spent on tobacco control in the U.S., the researchers said — though they warned that it “pales in comparison to the $27 million spent daily by the tobacco industry to market its products.”

FDA also has gone graphic with its anti-smoking initiatives, including a plan to make warning labels on cigarette packs much more intimidating. The new graphic labels were supposed to appear this month, but implementation was halted due to ongoing litigation with the tobacco industry.

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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

Delegates attending trans-Pacific free-trade negotiations in the United States are being warned their countries could end up like Australia if they agree to allow corporations to sue governments in international courts.

Australia is fending off a challenge to its plain cigarette packets legislation from Philip Morris International under the terms of an obscure Hong Kong investment treaty even though Philip Morris has lost its case against Australia in the High Court.

“The Philip Morris company’s persistence with the investor state dispute settlement case shows such procedures are a threat to democratically enacted legislation and national judicial decisions,” Australia’s Patricia Ranald told stakeholders forum at the negotiations in Leesburg, Virginia.

The United States is insisting on so-called investor state dispute settlement (SDS) provisions in the Trans Pacific Partnership even though it does not have them in its existing free-trade agreement with Australia and even though Australia has said it will not sign a deal that includes them.

The Trans Pacific Partnership will encompass Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam, many of whom already have in their agreements with the United States clauses that allow corporations to sue governments in supra-national forums.

Philip Morris International moved the head office of its Australian subsidiary to Hong Kong shortly before it launched action against Australia under the terms of Hong Kong treaty in what Dr Ranald said was jurisdiction shopping.

“Philip Morris International described itself as a US-based company when it made a submission in 2010 to the US trade representative supporting an investor state dispute settlement process in the trans-Pacific partnership.”

“However, it claimed to be a Swiss-based company when it used an investor state dispute settlement process to sue the Uruguayan government for damages under a Uruguay-Swiss investment agreement when Uruguay introduced legislation restricting tobacco advertising.

“Philip Morris can also claim to be a Hong Kong company because Philip Morris Asia, incorporated in Hong Kong, invested in Australia by becoming the sole shareholder of Philip Morris (Australia) after the Australian government announcement of its intention to legislate for plain packaging of tobacco.”

Speaking as convener of the Australian Fair Trade and Investment Network the Sydney University academic told the forum Australia’s problems showed none of the eleven nations negotiating the treaty should agree to provisions that would allow corporations to sue them extra-nationally.

Sean Donnelly from the US Council for International Business told the forum investor state dispute settlements procedures did no more than give international investors access to the rule of law.

He said business would like more protections, but believed what the US was proposing struct the right balance.

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

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Philip Morris Australia, now known as Philip Morris Asia, will argue the treaty prevents Australia from depriving a Hong Kong entity of its investments or subjecting it to ”measures having effect equivalent to such deprivation”. Which it does, with a caveat. As a party to the treaty, Australia is permitted to deprive a Hong Kong company of its investments so long as it does so ”under due process of law for a public purpose related to the internal needs of that party on a non-discriminatory basis”. So Australia ought to be in the clear.

But the almost comic attempt to get mileage out of the treaty (moving from Australia to Hong Kong in order to complain that it was being discriminated against because it was from Hong Kong) masks a broader, more serious attempt to turn trade treaties into instruments that allow corporations to sue governments.

The World Trade Organisation allows no such thing. Its disputes settlement procedure allows a nation to haul another nation before a disputes settlements panel, but not corporations to do so.

That could be why on Friday it will be Ukraine that will ask the WTO to set up a panel to hear its plain-packaging dispute with Australia rather than a tobacco company. There’s a suspicion that Ukraine is acting on behalf of a tobacco company, perhaps fuelled by its ranking on the Transparency International Corruption Perceptions Index (at the corrupt end of the scale, sandwiched between Russia and Zimbabwe) and by the fact that it has next to no tobacco trade with Australia.

The dispute will take four months to hear. With appeals, it could take up to 14 months. But it won’t unduly trouble Australia. A member of the WTO rather than a corporation will be taking action, it will have to show clearly how Australia’s plain packs law offends against WTO rules (which allow non-discriminatory measures that benefit health) and because Ukraine’s national interests are not at stake it is likely to run out of enthusiasm before Australia does.

Big Tobacco, and fellow travellers in surprising places, want much more. They want what is known as an Investor State Dispute Settlement Mechanism. They want it in order to allow them to drag Australia and other sovereign governments before specially constituted international courts.

They don’t usually put it that bluntly. Here’s how Philip Morris International put it in a briefing note for the US trade representative negotiating the so-called Trans-Pacific Partnership with 11 nations including Australia: ”Philip Morris International considers the availability of an investor-state dispute settlement mechanism – including the right for investors to submit disputes to independent international tribunals – a vital aspect of protecting its foreign investments.”

It is clear what Philip Morris is getting at. Four of the 30 paragraphs in the briefing note seen by BusinessDay complain about Australia’s plain-packaging law. As it happens, the US trade representative is unable to do the bidding of Philip Morris. US law prevents federal agencies from promoting the sale of tobacco overseas. But the trade representative is willing to do the bidding of other corporations that would like to sue foreign governments in supranational courts.

In fact in all but one of the 13 free trade agreements negotiated by the US, its representatives have managed to insert such a clause. The exception is the free trade agreement with Australia. Although criticised at the time for giving too much away to the United States in return for very little, on the question of an outside Investor State Dispute Settlement Mechanism the Howard government stood firm.

The Gillard government is standing firm, too. The multinational nature of large Australian corporations means it would effectively be giving them (but not our citizens) an international right of appeal against laws approved by the High Court.

The US is unlikely to give up. It already has such a clause in its agreements with Canada, Chile, Mexico, Singapore and Peru – five of the nations that would form part of the Trans-Pacific Partnership.

Its best hope would be that a new Abbott government saw things differently. It would, if it succumbed to lobbying from Australia’s own Chamber of Commerce and Industry. ACCI is lobbying hard, putting out a statement this month headed crudely: ”Australian Foreign Investment Requires Right to Sue Foreign Governments”.

It says its ”campaign” is backed by the International Chamber of Commerce, which is hardly surprising but also hardly a sign the backers have Australia’s interests at heart.

Julia Gillard and Trade Minister Craig Emerson are standing up to them. Will Tony Abbott?

By Peter Martin

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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

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