TWN Info Service on WTO and Trade Issues (Jun16/03)
Health: Plain packaging of tobacco products can save lives, says WHO
Geneva, 1 Jun (Kanaga Raja) -- A large body of empirical evidence in the form of experimental studies, surveys and focus group studies provides strong evidence to justify the introduction of plain packaging of tobacco products and to support the conclusion that the policy is apt to achieve the objectives identified, the World Health Organisation (WHO) has said.
This conclusion was highlighted in a new guide on tobacco plain packaging launched by the WHO on the occasion of World No Tobacco Day on 31 May, whose theme this year is ‘Get ready for plain packaging'.
According to the WHO guide, ‘Plain Packaging of Tobacco Products: Evidence, Design and Implementation', this empirical evidence suggests that plain packaging makes health warnings, restrictions on tobacco advertising, promotion and sponsorship and restrictions on misleading tobacco packaging more effective.
The focus on tobacco plain packaging has come just as plain packaging measures by Australia, the first country to fully implement such measures, have been challenged under domestic law in Australia, at the World Trade Organization (in disputes raised by Cuba, the Dominican Republic, Honduras and Indonesia) and the controversial investor-state dispute settlement/arbitration processes under a bilateral investment treaty between Australia and Hong Kong-China (see below).
According to a WHO press release, tobacco-related illness is one of the biggest health threats the world has ever faced, with approximately one person dying from a tobacco-caused disease every six seconds, equivalent to almost 6 million people a year.
This is forecast to rise to more than 8 million people a year by 2030, with more than 80% of these preventable deaths occurring among people living in low- and middle-income countries.
"Plain packaging is going global as more and more countries seek the important health gains it can bring to communities," said Dr Douglas Bettcher, Director of WHO's Department for the Prevention of Non-Communicable Diseases, in the press release.
"The tobacco industry has been getting ready for plain packaging for some time, conducting massive mis-information campaigns to block the measure," he said.
"So it is encouraging to see more and more countries defy the industry's tactics and implement plain packaging to reduce demand for tobacco products and put the health of their populations first".
At a media briefing on Monday (30 May) on the eve of World No Tobacco Day, Dr Bettcher explained that plain packaging, also known in some countries as standardised packaging, is defined as measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style.
Its purpose is to reduce the demand for tobacco by reducing the attractiveness of tobacco products and thus preventing the tobacco industry from using the surface of its deadly products to advertise and promote tobacco use, Dr Bettcher said.
It also increases the noticeability and effectiveness of health warnings and addresses industry-designed tactics that may suggest that some products are less harmful than others, he added.
It very clearly labels tobacco for what it is - the only legally available product worldwide that when used as intended, kills up to half of its users.
He noted that in 2012, Australia became the first country in the world to implement plain packaging. Since then, Ireland, France and the United Kingdom have also passed laws to implement plain packaging, and a number of other countries are close behind.
"This sends the message loud and clear that the globalisation of plain packaging is now underway," he said.
Strong evidence supports the implementation of plain packaging and peer review studies have tested plain packaging in a variety of contexts and have consistently come to the conclusion that plain packaging limits the tobacco industry's "last ditch and desperate advertising attempts and increases the effectiveness of health warnings," he added.
In Australia, while it is too early to measure the full impact of implementation of plain packaging, the official review shows that implementation has reduced the prevalence of smoking.
Dr Bettcher said the average smoking prevalence in Australia was reduced by 0.55% between December 2012, when the law came into force, and September 2015.
This is solely attributable to the changes in tobacco packaging, i. e. the plain packaging legislation.
"As you might imagine, the tobacco industry is not happy about this," he said, adding that fewer people smoking their products means less profit lining their pockets.
The industry fights hardest against the measures that are most effective. Today, countries that have introduced plain packaging laws have faced fierce legal opposition from the industry.
Most recently in May of this year, said Dr Bettcher, the British high court rejected all 17 challenges made by the tobacco companies to the introduction of plain packaging.
"The judgement of the high court makes for intriguing reading," he added.
Citing the judgment of the high court, he said that the evidence given by the tobacco companies was ruled as "largely not peer reviewed, either ignores or airily dismisses the worldwide research and literature base which contradicts evidence tendered by the tobacco industry and is frequently unverifiable. Some of it is wholly untenable and resembled diatribe rather than expert opinion."
"We know for a fact that tobacco plain packaging reduces the attractiveness of tobacco products, and eliminates the pack as a source of advertising and promotion, limits misleading packaging and labelling and increases the effectiveness of health warnings," said Dr Bettcher.
"It is good news for the health, prosperity and well-being of humanity that the globalisation of plain packaging is now underway," he said.
According to the WHO guide on plain packaging of tobacco products, in 2012, Australia became the first WHO Member State to implement laws requiring plain (standardized) packaging of tobacco products.
Since then, France, Ireland and the United Kingdom (UK) have passed laws to implement plain packaging and several other WHO Member States have initiated legislative processes with the same goal.
When viewed in the context of the WHO Framework Convention on Tobacco Control (FCTC), and particularly Articles 11 and 13, plain packaging serves several purposes, including: (1) reducing the attractiveness of tobacco products; (2) eliminating the effects of tobacco packaging as a form of advertising and promotion; (3) addressing package design techniques that may suggest that some products are less harmful than others; and (4) increasing the noticeability and effectiveness of health warnings.
According to the WHO guide, as the WHO FCTC recognizes, tobacco control relies upon implementation of comprehensive multi-sectoral measures that work together in a complementary way.
In this context, plain packaging, itself a demand-reduction measure, complements or builds upon other measures designed to reduce demand for tobacco products, such as mandatory health warnings and comprehensive restrictions on tobacco advertising, promotion and sponsorship.
"Plain packaging is not a panacea for the consequences of tobacco consumption, but provides an incremental step that builds upon other policies."
It said a strong evidence base underlies implementation of plain packaging. A body of peer-reviewed evidence in the form of experimental studies, focus groups and surveys has tested different forms of plain packaging in different places. Although individual studies each have their limitations, when viewed together, the body of evidence permits generally applicable conclusions to be drawn regarding plain packaging.
"These conclusions include that plain packaging reduces the attractiveness of tobacco products, restricts use of the pack as a form of advertising and promotion, limits misleading packaging and increases the effectiveness of health warnings."
Although it is too early to measure the full impact of plain packaging as implemented in Australia, the evidence to date is consistent with this broader body of evidence and with the conclusion that plain packaging has contributed to reduction of the prevalence of tobacco use in Australia.
According to the WHO document, the advertising function served by tobacco packaging has also been targeted specifically at youth in a context where many consumers of tobacco products become addicted before reaching adulthood.
It is estimated that approximately 10% of students between the ages of 13 and 15 years smoke cigarettes worldwide.
Additionally, among these same students, almost 20% of those who had never smoked cigarettes indicated they were susceptible to initiate smoking during the next year.
Evidence from Australia's implementation of plain packaging is consistent with the conclusion that plain packaging reduces the attractiveness and appeal of tobacco products.
For example, studies have demonstrated a reduction in active smoking, and a sustained reduction in the display of tobacco packs, in outdoor settings.
"This not only suggests that smokers treat tobacco packaging as less attractive, but also that plain packaging has reduced public exposure to tobacco packaging as a form of marketing."
According to the WHO guide, the early evidence from Australia suggests that plain packaging has already reduced consumer misperceptions of harm.
A national cross-sectional tracking survey found a statistically significant increase in the proportion of adult smokers who believed that brands do not differ in harmfulness (69.8%) during the first year of implementation as compared with the period before implementation (65.7%).
Since the introduction of plain packaging, the Australian government has observed declining total expenditure on tobacco products and declining customs and excise clearances on tobacco products.
Statistics also show that a decline in smoking prevalence has continued in Australia. These figures include the following:
* The National Drug Strategy Household Survey for 2013 showed a reduction in the prevalence of daily smokers aged 14 years or over to 12.8% in 2013, compared with 15.1% in 2010.
* The Australian Secondary Students' Alcohol and Drug survey found that in 2014 only 5.1% of 12-17 year olds are current smokers, compared with 6.7% in 2011.
* In the National Health Survey rates of daily smoking among adults (18 years and older) have continued to drop, to 14.5% in 2014-15, compared with 16.1% in 2011-12 and 22.4% in 2001.
"Although these studies were not designed specifically to measure the impact of plain packaging, the figures show a correlation between plain packaging, reduced total consumption and reduced prevalence of smoking."
Moreover, the Australian government released a formal post-implementation review of tobacco plain packaging in February 2016. The review concluded that the measure has begun to achieve its public health objectives.
More specifically, the analysis estimated that between December 2012 and September 2015 "the 2012 packaging changes reduced average smoking prevalence among Australians aged 14 years and over by 0.55 percentage points".
The report of the analysis also states that the effect is likely understated and expected to grow over time.
In short, said the WHO guide, plain packaging has reduced smoking prevalence in Australia beyond the pre- existing downward trend.
"In conclusion, peer-reviewed studies point in one direction and confirm the merits of plain packaging. These studies find further support in the real world experience of Australia."
Nonetheless, tobacco companies have commissioned studies to dispute the impact of the measure; the credibility of these studies is questionable because they have been commissioned by tobacco companies, are not supported by independent studies published in respected peer-reviewed journals and are inconsistent with a far larger body of evidence.
LEGAL CHALLENGES TO PLAIN PACKAGING
According to the WHO document, legal challenges to plain packaging are an example of the tobacco industry's broader strategy of using litigation to contest regulation, rather than a new phenomenon.
Australia's plain packaging measures have been the subject of legal claims under domestic law, the agreements and rules of the World Trade Organization (WTO) and a bilateral investment treaty between Australia and Hong Kong Special Administrative Region, China.
The WHO guide said that at the time of writing, the domestic law claims and the investment treaty claim have each been resolved in Australia's favour, but the WTO claim is ongoing.
At the time of writing, a WTO panel is adjudicating complaints by Cuba, the Dominican Republic, Honduras and Indonesia with respect to Australia's plain packaging law. Australia is defending its law against those claims.
A complaint by Ukraine has been suspended at Ukraine's request. The panel has advised that it will not issue its final report to the parties to the dispute before the first half of 2016.
According to WHO, Philip Morris Asia brought a claim against Australia under a bilateral investment treaty between Australia and Hong Kong-China. Philip Morris Asia sought compensation for losses it claimed were caused by plain packaging.
Australia had argued that the claim should be dismissed on jurisdictional grounds, and in December 2015, the Tribunal agreed with Australia that Philip Morris Asia's claim should be dismissed.
The Tribunal's award is expected to be published in 2016 once issues regarding redaction of confidential information have been resolved.
In both Ireland and the UK, plain packaging has been challenged before domestic courts, with tobacco companies invoking both domestic laws and the law of the European Union.
These challenges are made against the backdrop of existing challenges to the European Union's Tobacco Products Directive of 2014, which have been referred to the European Court of Justice by domestic courts in European Union Member States.
In addition to legal challenges, said the WHO guide, tobacco companies and their supporters have lobbied against introduction of plain packaging and contested the measure in the political sphere.
As far back as 1993 tobacco companies formed what they called a plain packs group to resist development of plain packaging laws. In Australia, the industry's opposition to plain packaging was also far greater than typical industry opposition to introduction of other tobacco control measures.
As part of this opposition, tobacco companies and their supporters have made numerous assertions, such as: plain packaging will increase illicit trade in tobacco products, lead to lower prices and have negative effects on retailers.
"These and other arguments made by tobacco companies align with the industry's self-interest, have not come to fruition in Australia and often lack any rational basis," said the WHO guide. +