ABAC didn’t ignore your complaint, we were just being incompetent, says Advertising Standards Bureau

A few days ago, DrinkTank re-published  a post from Sydneyhealthlaw  about the failure of the ABAC Complaints Panel to respond to a complaint about Diageo streaming a liquor ad at a 3 year-old.


DrinkTank ’s post was brought to the attention of the folks at ABAC and the Advertising Standards Bureau (ASB) .

If you want to complain about an alcohol advertisement, you need to submit it through the “front door” of the ASB.

The ASB determines whether or not the complaint raises issues relating to the Australian Association of National Advertisers (AANA) Code of Ethics.  My complaint did not: it only raised issues relating to applicable standards for advertising alcohol.

Accordingly, the ASB sent me this letter (Outside Charter-Not S2 – ABAC_01102015_11 34 34 566) advising that the ASB had forwarded the complaint to the ABAC Complaints Panel.

Except that it hadn’t.

ASB’s Operations Manager has now written to advise that due to an administrative error within the Bureau, my complaint went nowhere.

The ABAC scheme – nested within the broader set of advertising codes administered by the ASB – is supposed to serve the public interest. Performance ought to matter.

Unfortunately, based on my own experience, Diageo’s “very strict and long-standing guidelines and policies” for ensuring that alcohol is only promoted to adults didn’t work.  And when I made a complaint, the complaints handling system also broke down.


Just in time for Christmas drinks

12 weeks later, ABAC now has my complaint, just in time for Christmas drinks.

My guess is that in due course I’ll receive a response from the ABAC Complaints Panel advising that, in fact, spamming children with alcohol ads does not breach the current ABAC Code.

To get at that message, I’ll probably need to wade through a pile of steaming boilerplate about how the advertiser “shares the complainant’s concern”, “has an excellent advertising compliance track record”, and takes its obligations in relation to responsible consumption of alcohol “extremely seriously”.

At least, that was how the Complaint Panel’s adjudication read 4 years ago when the very same issue was brought to ABAC’s attention (complaint 118/11; 14 January 2012).

That’s where the real criticism lies.

There is no evidence that the alcohol industry, nor ABAC, are serious about imposing accountability for ensuring that alcohol advertisers cease spamming children watching children’s content.

ABAC’s Management Committee is dominated by alcohol and advertising industry associations.  They’ve known about this issue for 4 years and done nothing.  Don’t they monitor and act on complaints?

Call me old-fashioned, but performance matters.  ABAC and its signatories need to lift their game.


ABAC Complaints Panel fails to respond to complaint about Bundaberg Rum advertisement streamed at 3 year old

In an earlier post I showed photos of an Australian alcohol company, Diageo Australia, spamming my 3 year old daughter with an advertisement for Bundaberg Rum when she clicked on a YouTube video of Dora the Explorer.

I saw this as an important public interest issue, so I decided to follow it up.  Here’s what’s happened since.

IMG_4214 - resized

Google (which owns YouTube) has been grappling with technical difficulties about the placement of inappropriate ads next to children’s content hosted on YouTube.

Until resolved, this practice creates bad PR for everyone.

It makes alcohol companies look desperate and mercenary.  And if you own the IP for Dora the Explorer or, say, Frozen, would you want alcohol companies messing with your child audiences?

The practice comes as no surprise to ABAC.

ABAC is the voluntary, alcohol advertising code and complaints scheme whose Management Committee represents Australia’s beer, wine, spirits and advertising industries.  The Australian government is also represented on the Committee, through the Head of the Department of Health’s Drug Strategy Branch.

In 2012, the ABAC Complaints Panel dismissed a complaint (118/11, 14 January 2012) about an alcohol ad placed prior to a children’s game on a children’s website aimed at 3-8 year olds.

On that occasion, the Complaints Panel wrote that “the Panel is only permitted to consider whether the content (not the placement) of the advertisement breaches the ABAC”.


Why is ABAC ignoring my complaint?

I wanted to confirm what kind of advertising the ABAC Code prevents, and what it allows.  So on 29 September 2015, I sent a complaint about Diageo’s Bundaberg Rum ad to ABAC, through the Advertising Standards Bureau portal.  On 1 October, the ASA forwarded it to the ABAC Complaints Adjudication Panel.

Under ABAC’s Rules and Procedures, the ABAC Management Committee has set a target of 30 days (1 month) for handling complaints.

It’s now 11 weeks since the complaint was referred to the Complaints Adjudication Panel.  The Panel is yet to acknowledge receipt.  It’s not a good look.

In the meantime, ABAC has published adjudications for complaints that were made more recently than mine.

According to ABAC, ABAC is the “centrepiece of Australia’s quasi-regulatory scheme for alcohol advertising”.

Former Senator the Hon Alan Ferguson was appointed the inaugural Chair of ABAC’s Management Committee in July 2015.

The Chief Adjudicator of the Complaints Panel is Professor Michael Lavarch AO, a former Commonwealth Attorney-General.


Reply from Minister Ley MP

The Hon. Sussan Ley MP, the Minister for Health, did respond to my letter raising the issue of alcohol spam to children watching age-appropriate content online.

She advised that the Department referred my letter to the ABAC Management Committee for consideration at their meeting on 24 November 2015.

Minister Ley also advised that in consultation with ABAC the Department will “undertake further discussions with [the] internet industry associations about this issue”.

The Department’s involvement in this issue is timely and welcome.

Minister Ley referred me to the recently-released report of the (now disbanded) Australian National Preventive Health Agency entitled: Alcohol Advertising: the Effectiveness of Current Regulatory Codes in Addressing Community Concern (February 2014).

This report concluded that current regulatory arrangements “on the placement of alcohol advertising are failing to sufficiently protect children and adolescents and in some cases are facilitating their exposure to alcohol advertising” [particularly when watching live sporting broadcasts on weekends and public holidays (pp 9, 99-100)].

This report called for a review of all aspects of alcohol advertising regulation during 2016.

Amongst other recommendations, it called for changes to the ABAC Code to ensure that it covers alcohol advertising in all media, including user-generated online content (such as YouTobe) (pp 119-121).  It called on ABAC to perform annual monitoring of alcohol marketing, with public reporting (122-123).



I also received a reply on behalf of Senator the Hon. Mitch Fifield MP, the Minister for Communications, who confirmed that the Department urgently sought comment and action about the Diageo ad from Google.

Google has a number of policies and measures that are supposed to ensure that advertisements intended for adults are not spammed at children.  These include:

  • “alcohol advertisements are only shown to users that are logged in and who are aged 18 years and older;
  • Google excludes content that is family friendly;
  • Publishers have to opt in to show alcohol advertisements on their video content”.

Google advised the Department that none of these measures were effective in this case.

“[U]nfortunately [Diageo’s advertisement] was not correctly labelled as an alcohol advertisement, and Google’s other measures to identify inappropriate advertising content did not pick it up”.


Alcohol Advertising Review Board

IMG_4212 - resized

At the time I made a complaint to the ABAC Panel, I sent the same complaint to the Alcohol Advertising Review Board.

The AARB is is an initiative of the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA.  It administers an alcohol advertising content code as well as a placement code.

The AARB’s Placement Code contains the following provision:

“8 Internet

Alcohol Advertisements shall not appear online in connection with content that appeals or is likely to appeal to Young People.”

On 23 September, the AARB sought comment from Diageo Australia.  Diageo refused to participate in the AARB process, “noting that it is a signatory to and participates in the Alcohol Beverage Advertising Code (ABAC) Scheme.”

Earlier, Diageo told Fairfax journalist Amy Corderoy that the company “has very strict and long-standing guidelines and policies to ensure that our products are only advertised or promoted to people aged 18 and over” and that the company would investigate.

The AARB found that by streaming its ad with children’s content on YouTube, Diageo was in breach of the provision above.

You can read the AARB’s determination here.


The alcohol industry needs to keep away from kids’ play areas

Here’s the bottom line.

The business of encouraging people to purchase lots of alcohol is the alcohol industry’s business.  If they want to engage in that business, they ought to give children’s content a wide berth.

I don’t yet see any evidence that alcohol companies have fixed the problem or that they are willing to be held accountable for their ethical obligation to keep away from kids’ play areas.

ABAC should respond to my complaint, or explain why it is incapable of doing so.

On my reading, the ABAC Code doesn’t prevent alcohol companies from spamming kids with liquor ads online, provided those ads do not breach other Code provisions.  If the ABAC Code is to maintain credibility and public trust, this gap must be urgently addressed.

As a forum dominated by industry associations with a natural bias towards alcohol advertising, ABAC’s Management Committee may not be the best forum for addressing long-standing gaps in advertising regulation.

Spamming kids with liquor ads is a public interest issue, and the public should be kept informed about how industry and the government are going to ensure this practice ceases.


Are you interested in studying about health law and regulation?  Sydney Law School offers a Master of Health Law with units of study that explore health care law, public health law, mental health law, and global health law and governance.  Click here and here for more information.

Santa: jolly gift giver, or creeping trespasser?

Stop the sleds
Picture from: https://www.facebook.com/DIYrainbow/timeline.

In honour of the silly season, I’m taking a break from health law to venture into torts, another area that I teach into. This post is dedicated to all the hard-working students in my torts tutorial groups, and to anyone who’s ever wondered…. Can we sue Santa?

Christmas. The most wonderful time of the year. Traditionally characterized by peace, joy, goodwill towards all men (presumably women are included too), and not uncommonly, over-consumption of alcohol, processed meats, and high-sugar, high-calorie, figgy pudding.

The festive season is also a fruitful source of legal risk. Consider, for example, Uncle Bob’s defamatory comments about the dryness of the turkey, or Cousin Susan’s negligence in breaking your favorite Christmas ornament. Here we examine one of Christmas’ most legally fraught situations: the jolly bearded man flying over your house on a sleigh. Yes, that’s right: Santa.

Are you tired of sleigh bells ringing, and reindeer leaving unwanted gifts on your lawn? If so, what are your legal options?

Trespass to land

First, let’s consider trespass to land. This cause of action could arise from two aspects of Santa’s annual present delivery:

  • Overflight by Santa’s sleigh; and/or
  • Santa’s entry onto property to deliver presents.

An incursion into airspace can form the basis of an action in trespass where it takes place at a height that may interfere with the ordinary use and enjoyment of land (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479). If we were to sue Santa for aerial trespass under the first scenario, a key question would be whether his flight is at such a height that it would not interfere with the claimant’s potential use or enjoyment of his or her land. However, it is likely that at least part of Santa’s flight could intrude on a claimant’s airspace, given that Santa flies low enough to land on the roofs of people’s houses.

In the second scenario, Santa intentionally enters directly onto land, meeting the basic test for trespass to land. However, we need to keep in mind that the law grants implied consent for members of the public to go up the pathway or driveway to a house in order to talk to the person inside (absent any express evidence to the contrary). Could it be said that this implied license extends to entering premises via chimney, an extremely unorthodox method of entry? There may be a stronger argument of implied consent once Santa has entered a person’s house, if stockings have been hung up for him to fill, and there are mince pies laid out for him on the mantelpiece.


If Santa’s flight falls outside the claimant’s airspace, then we could consider a claim in nuisance.  A cause of action would hinge on whether a the plaintiff could show some kind of interference with his or her enjoyment or use of land, for example, through excessively high-volume “ho-ho-hos” or noxious fumes emitted by reindeer polluting the airspace.

The court would carefully weigh a range of factors in determining whether Santa’s activities amount to a substantial and unreasonable interference with use or enjoyment of land. The court might take into account that any noise occurs late at night; that the plaintiff may be living under the Sydney Airport flight path and thus already subject to substantial aircraft noise; and that Santa’s present delivery brings joy to millions of children around the world (although the social utility of an activity will not prevent it from being a nuisance if the activity is considered unreasonable).

Another consideration might be that any interference is likely to be a temporary, night-before-Christmas occurrence. However, in Munro v Southern Dairies [1955] VLR 332 the court acknowledged that the loss of even a single night’s sleep could amount to a substantial interference, say if the loud ringing of sleigh bells woke you up at 2am after a busy day making Christmas cake.

In NSW, section 72 of the Civil Liability Act 2002 bars actions in trespass or nuisance on the basis of overflight by aircraft, so long as the flight is at a height that is reasonable, and the applicable air navigation regulations are complied with. Whether Santa complies with the Air Navigation Regulations 1947 (Cth) is an open question, but it may be that sections of his flight take place at a height that is unreasonably low, meaning that an action in trespass or nuisance remains open to an aggrieved plaintiff. A successful claimant could seek damages, or perhaps an injunction to prevent a similar annoyance next Christmas.

Damage by Aircraft legislation

The final issue to consider is a statutory cause of action available under the Damage by Aircraft Act 1999 (Cth), which provides compensation for members of the public on the ground who suffer personal injury or property damage as the result of an air accident.

Santa’s sleigh fits within the definition of “aircraft” in section 4 of the Act, but section 9(4) would be a critical hurdle as it limits the Act’s application to certain categories of aircraft and only some types of flights. Plaintiffs in the ACT and NT would clearly meet the requirements of section 9(4), as in their case Santa is engaged in “air navigation to or from, or within, the Territories” (s 9(4)(c)(iv)). Plaintiffs in one of the States may struggle with the provision’s requirements, but these could be met if the sleigh is classified as an aircraft “engaged in international air navigation” under section 9(4)(c)(i).

If this initial hurdle could be overcome, section 10 requires potential claimants to show that there has been some kind of personal injury or material damage caused by an impact with the aircraft, or part of the aircraft damaged in flight, or with a person, animal, or thing that dropped off or fell from the aircraft. Section 10 would be satisfied if, for example, Santa crash-landed into your house, or dropped a load of presents off the sleigh that took a chunk out of your lawn. The Act is strict liability (s 11), meaning that a plaintiff can recover without having to prove intention or negligence on Santa’s part.

If the Commonwealth Act doesn’t apply, then plaintiffs in NSW could consider a similar cause of action under section 73 of the Civil Liability Act 2002 (NSW), which imposes strict liability upon the owner of an aircraft for all surface damage caused by an aircraft while in flight, or during take-off or landing, and by articles or persons falling from an aircraft.

This blog post only scratches the surface of Santa’s liability, and there are many other aspects of Santa’s operations that may raise legal issues: how many sherries has Santa been drinking while flying that sleigh? Are the Elves paid penalty rates for their overtime work during Christmas? What kind of conditions are the reindeer kept in?

However, one aspect of good legal practice is knowing when not to bring an action. I certainly wouldn’t suggest that you really sue Santa, and any Christmas-related legal action should be brought only on the basis of advice from a properly qualified (and entirely serious) solicitor. On that note, best wishes for a relaxing, and hopefully litigation-free, festive season.

We need to separate the neuroscience hype from the reality

This article by Sascha Callaghan and Allan McCay,  was published in the Sydney Morning Herald, 30 November 2015.

Oregon serial killer Dayton Leroy Rogers was recently sentenced to death for the fourth time, after a strongly argued case that the sentence should be reduced to life in prison.

Rogers’ lawyer argued that scans indicated damage to parts of his brain could have caused his manic killing sprees. The thrust of the argument was that brain damage reduced his responsibility for the crimes.

The Rogers case is part of an emerging trend for neuroscience evidence to be brought to court to help the defence in criminal trials.  That said, the use of neuroscience in court is not entirely new. Rogers has made similar claims for some time. However, there are reasons to believe neurolaw cases are increasing in the US and Australia.

In 2011, a member of the Tasmanian Legislative Assembly, Terry Martin, was found guilty of child sex offences. Neuroscience evidence made a major difference to the final outcome. The sentencing judge accepted that medication for the treatment of Parkinson’s disease had led to Martin’s compulsive sexual behaviour and that this was a significant mitigating factor.

In light of the expert evidence, Martin served no further time in jail.

In civil matters, neuroscience is assisting personal injury claimants seek compensation for pain and suffering. Courts are now looking to neuroscience evidence for “proof” that injuries such as pain or psychiatric illness are not “all in the plaintiff’s head”.

Earlier this year, brain research into post-traumatic stress disorder helped nurse Karen Casey to recover compensation after a terrifying plane crash that left her with multiple injuries and debilitating PTSD.

Under international law compensation for aviation injuries need only be paid in respect of “bodily injuries” and not purely mental or emotional injuries. Historically, PTSD has been regarded as a mental injury, but Casey’s doctors referred to neuroscience evidence showing that PTSD occurs alongside changes in the brain.

On this evidence, Justice Monika Schmidt of the NSW Supreme Court decided that Casey’s PTSD was “not merely the result of an injury to her mind” but that it also “involves an injury to her brain”.

Casey is the first Australian to recover damages for PTSD as a bodily injury.

Some commentators are now suggesting neuroscience will revolutionise the legal system, that courts will become concerned with managing those with malfunctioning brains, and that we will cease to care about “outdated” notions such as blame and deserved punishment; and that courts may eventually have access into our private thoughts, with sophisticated lie detection technology.

But is this just science fiction?

A research collaboration between Macquarie University and the University of Sydney aims to answer these questions. The Australian Neurolaw Database aims to separate neurolaw hype from reality. We are examining what Australian courts are doing in response to evidence derived from neuroscience.

Cases in the database, such as Martin’s and Casey’s, clearly demonstrate the ethical and legal significance of neuroscience evidence in some court decisions, although it does appear that judges are taking a reasonably cautious approach.

Traditional evidence is still the gold standard for the courts. For now at least, what people have done and said remains more persuasive than scans.

Important policy questions remain for the future.Do we allow every new technology into court? Should citizens have a right to mental privacy as pupil-scanning and other technologies become more prevalent? Should evidence gathered about what we are thinking and feeling via pupil and skin temperature data be excluded from courts? Should neuroscience-based dangerousness tests be used to determine whether prisoners should be granted parole?

Very soon policy-makers will be able to look to the Australia Neurolaw Database to help develop answers to these difficult questions.


ACCC fines Uncle Tobys for false and misleading statements

medias[1]A reminder last week about the important role that consumer protection laws play in public health, and in holding – in this case – a food manufacturers accountable.

Cereal Partners Australia, which owns the Uncle Tobys brand, has paid a penalty of $32,400  imposed by the Australian Competition and Consumer Commission for allegedly making false and misleading statements about the protein content of porridge.

Porridge is a protein superfood (if you add milk)

Uncle Tobys labelled its oat porridge satchets as “protein superfood”*, adding in small print “*when prepared with [1/2 or 2/3] cup of skim milk”.

This was not enough to satisfy the ACCC, which felt that the dominant impression created by the packaging was that oats are high in protein, when this is not the case.

Provisions in the Competition and Consumer Act 2010 (Cth) permit the ACCC to issue an infringement notice as an alternative to taking court proceedings against a person or company for breach of a range of provisions in the Australian Consumer Law (ACL), as well as many other provisions in the Act itself.

[Reckitt Benckiser, which manufactures the painkiller Nurofen, was not so lucky: the ACCC launched Federal Court action against the company for misleading statements made about the ability of Nurofen products to target particular kinds of pain.  The Court has ordered that Nurofen products for back, period, migraine pain and tension headaches be removed from shelves].

The Australian Consumer Law in contained Schedule 2  of the Competition and Consumer Act 2010 (Cth) . It commenced operation on 1 January 2011. It is a single, national law covering consumer protection and fair trading. It contains revised versions of provisions in the old Trade Practices Act, as well as provisions from Fair Trading Acts at State level. It implements agreements reached by the Council of Australian Governments (COAG) in 2008 to create a single, national consumer law. The Australian Consumer Law applies at Commonwealth, state and territory level.

Part 3-1 of the ACL contains a range of provisions relating to false or misleading representations.

In issuing three infringement notices against Cereal Partners, the ACCC would appear to have been referring to breaches of provisions in ACL Part 3-1, such as s 29, which provides that a person must not, in trade or commerce, make false or misleading representations about the standard, quality or composition of goods purchased by the consumer.

By claiming through its advertising that oats are rich in protein, the ACCC took the view that Uncle Tobys was making false or misleading representations.

According to its nutrition panel, one serving of oats gives you 4.4g of protein: about 9% of daily recommended intake for a normal adult.

Uncle Tobys was fined $32,400; that’s 3 X $10,800 for each of the 3 infringement notices issued.

That’s probably a few minutes of revenues for Cereal Partners Australia, which is the Australian subsidiary of Cereal Partners Worldwide, a joint venture  between Nestle SA and General Mills Inc.

But it’s still 6,700 times larger than a 10 pack of oats satchets, which retails for $4.83 at Coles.

When trust is such a vital ingredient for sales and revenues, the publicity given to penalties provides part of the wider incentive structure for food manufacturers to avoid false and misleading statements in their advertising.

Complaint to the Advertising Standards Board

In addition to advertising Uncle Tobys oats as a protein superfood on its packaging, the manufacturer ran TV advertisements claiming that “UNCLE TOBYS Oats with milk are naturally rich in protein which helps build muscles… and they’re a superfood”.

A disgruntled viewer made a complaint to the Advertising Standards Board, which administers a number of voluntary codes , including the  AANA Food & Beverages Advertising & Marketing Communications Code (the “Food Code”).

Section 2.1 of the Food Code states that: “ Advertising or Marketing Communications for Food or Beverage Products shall be truthful and honest, shall not be or be designed to be misleading or deceptive or otherwise contravene Prevailing Community Standards…”

The Board’s determination is here (0225/15).

The Board did not consider the term “superfood” was misleading; however, it did consider the advertisement breached section 2.1 because it suggested to a reasonable viewer that the product was naturally high in protein and failed to “make sufficiently clear that the product needs to be combined with milk to achieve the heightened nutritional content of protein”.

Unlike the ACCC’s action, the ASB’s determination received no publicity that we are aware of.

Wouldn’t it be clearer for consumers if food manufacturers focused their advertising on the nutritional characteristics of their product, rather than the nutritional features of quite separate products which – if consumed at the same time – can yield the nutritional benefits that are claimed?


Is your summer barbeque under fire? Chewing over the evidence on meat and cancer, and digesting the implications for regulation

Corned beef

The report

We’ve now had a few weeks to chew over the latest report linking food and cancer. Only this time it wasn’t a puff-piece in your Sunday newspaper, but an extremely comprehensive report from IARC, the World Health Organization’s International Agency for Research on Cancer. After a systematic review, IARC’s findings on the links between red and processed meat consumption, and cancer, were published in a press release and in The Lancet in late October (the full findings will be published later as a monograph).

In brief, red meat (“all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat”) was classified as being probably carcinogenic to humans. Processed meat (“meat that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation”) was classified as carcinogenic to humans. This means that, based on epidemiological studies, IARC found “convincing evidence” that meat products like ham, sausages, corned beef and biltong cause colorectal cancer.

Is meat the “new tobacco”?

Despite widespread media reporting that red and processed meats were now “as big a threat as cigarettes”, IARC did not actually make this comparison. Rather, it rated the strength of the evidence for the link as “Group 1”, meaning that the evidence is strong. So, the evidence linking tobacco and lung cancer is equally persuasive (Group 1) but this does not mean that eating meat is as dangerous as smoking. (This classification system is widely used in systematic assessments of nutritional evidence, including in the Australian Dietary Guidelines.)

Among those who denounced the comparison between eating meat and smoking cigarettes was Australia’s Agriculture Minister, Barnaby Joyce. Clearly, Mr Joyce has an interest in dampening any concerns that might threaten Australia’s reputation as a nation of meat-eaters – but in this case his assessment of the evidence was correct.

Regulation of bacon: the next frontier for public health law?

All in all, you may want to consider throwing a few extra vegetable skewers on your next barbeque. But more interestingly for our purposes, what – if any – are the implications for law and regulation?

As countries such as India and China undergo rapid social and nutritional transitions, the demand for meat will only grow – worldwide, meat-eating is correlated with greater wealth. This has environmental as well as health implications. Together, these implications may eventually prompt countries to take regulatory action.

While there are currently no jurisdictions that regulate the consumption of meat, the following developments may be indicative of an early trend:

  • “Meatless Mondays” or “meat-free Mondays” campaigns have been springing up around the world since the early 2000s. These tend to be grassroots civil society initiatives aimed at making vegetarian food more acceptable and available.
  • In 2009, the Belgian city of Ghent became the first in the world to proclaim an official “Veggie Thursday”.
  • The most recent iteration of the US government’s dietary guidelines, “MyPlate”, refers to daily “protein” rather than “meat” consumption.
  • In the early 1990s, Ghana introduced food standards setting maximum fat limits for pork, beef, mutton and poultry, in response to concerns about diet-related NCDs. While not a curb on meat consumption per se, this regulatory response does speak to some of the concerns raised by IARC.
  • Perhaps most tellingly, the food industry has come to recognise the commercial potential of vegetarian foods, which are now said to have “gone mainstream” after decades on the hippie fringe.

This is where the comparison with tobacco control may be more salient. The evidence linking tobacco to cancer was recognised by some governments as early as the mid-1950s, but the WHO’s Framework Convention on Tobacco Control was not enacted until 2003. Biltong regulation will no doubt require a similar fermentation period. But the mix of voluntary, regulatory and commercial developments above suggests that the goal of curbing meat consumption is not far-fetched or conceptually unappealing. More controversial perhaps will be the methods of achieving that goal. Warning labels on a pack of sausages? A tax on bacon? A ban on quarter-pounders? We’ll get back to you in 30 years…

Vodka and Vita Brits: will the alcohol industry successfully reverse the 10pm closing time for bottleshops, and other alcohol retail restrictions?

Credit: shutterstock_69600322

People sometimes say that the law is a blunt instrument.  Roughly translated, what they often seem to mean is “I don’t like this law”.

The comment holds a measure of truth.  When the law tries to address social problems, it can sometimes have unintended consequences.  For example, it may place regulatory burdens on innocent parties, or reduce competition.

Expect to see plenty of these objections as the Office of Liquor, Gaming & Racing moves to the next stage of its review of the 10pm curfew on take-away liquor sales across NSW.


10pm curfew for bottle shop sales in NSW

The 10pm closing time  for bottle-shops and other take-away retail outlets was introduced in 2014.  It was one of a number of measures introduced by the NSW Liberal government in response to “one-punch assaults” and alcohol-related violence.

Of all the measures introduced, the 10pm closing time is perhaps the most vulnerable to being rolled back, although achieving this will require legislative change.

A mere 7 submissions were received during the consultation process on the impact of the restrictions in regional NSW.  However, in 2016 when the review considers the impact of the 10pm sales curfew in Sydney metropolitan and surrounding areas, expect to see many more.

A summary of the NSW government’s “one-punch” reforms will appear in a subsequent post.


Liquor sales in convenience stores and supermarkets

Other retail restrictions on the retailing of alcohol are also under pressure.

The Australian Government’s Competition Policy Review  (the Harper review) was released in March 2015.  Panel members recognised that alcohol is different from cornflakes, washing powder and orange juice (pp 145-6), and that policymakers should not be prevented from pursuing harm minimisation objectives.  However, they also cautioned that liquor laws should not benefit particular competitors or classes of competitor.

In NSW, certain kinds of business are prevented from holding a packaged liquor licence.  These include general stores (mixed businesses with a floor area of 240 sq m or less), take-away food shops and service stations.

Exceptions apply to general stores in localities where there is no other take-away liquor service reasonably available to the public.

The Australasian Association of Convenience Stores argues (Harper review, p 147) that these restrictions make it harder for its members to compete with Coles and Woolworths – which locate the alcohol retail chains they own adjacent to their supermarket premises.

As Wardle and Chang  show, supermarkets do treat alcohol like cornflakes, giving shoppers hefty discounts for alcohol purchases from co-located alcohol stores.

Buy a banana for $1, as these researchers did, and your sales receipt could give you an unprompted wine discount of $19.99.

But why not sell alcohol in supermarket aisles, stocking a selection of red wine with the pasta sauce, perhaps?  And if convenience stores and service stations can sell cigarettes and lottery tickets, why can’t they sell booze as well?


Vodka and Vita Brits?

At the level of policy, the contest over retailing regulation is ultimately about whether we see beer as no different to breakfast cereal, and vodka as no different to Vita Brits, or whether we see alcohol as “no ordinary commodity”  because of its mind-altering effects, and because it is so clearly associated with a heavy burden of preventable injury and disease.

Current retailing laws reflect the assumption, at least hitherto, that although it is a consumer product, alcohol should not be ubiquitous, and that limits on accessibility play a role in reducing the negative social consequences of harmful levels of consumption.

Liquor laws in NSW do not prohibit supermarkets from selling liquor within the store.  They merely provide that the liquor sales area must be “adequately separated” from the rest of the store.

Relying on this, Aldi has recently begun selling  alcohol from dedicated zones within the interior of its stores.

Coles and Woolworths are watching closely.

Melbourne’s Herald Sun reported recently that the NSW government is considering plans to allow alcohol sales to be integrated into supermarket aisles.  The story is illustrated by a photo of crates of beer in a Russian supermarket.

Russia may not be the smartest model for retail alcohol regulation, given that a quarter of Russian men are dead before they reach 55, mostly due to alcohol.

In Australia, according to the National Drug Strategy Household Survey, in 2013 almost 5 million people – more than 25% of those aged 14 years or older – reported being a victim of an alcohol-related incident (including verbal abuse, physical abuse, or being put in fear) during the previous year.

Nearly 18% of people aged 18-24 reported being at very high risk of alcohol-related harm (defined as 11 or more standard drinks) at least once a month.


One-punch retail alcohol reforms: why did the NSW government act?

This video (0:58) shows the moment a Sydney bouncer was king-hit in an unprovoked attack by an intoxicated man refused entry to Bar 333 in George St.

Faidy Taiba suffered a traumatic brain injury and was in a coma for 19 days.  His wife spoke of the “ripple effects” of his injury on her family.

These ripple effects are important.

Beyond the pain and physical injury to the assault victim, the ripple effects of alcohol-related violence may include:

  • The costs of rehabilitation;
  • The opportunity costs: not only the lost earnings of both victim and perpetrator, but the lost earnings of the spouse, mother or family member who goes part-time or gives up their job to care for the victim;
  • The perpetrator ends up with a criminal record, despite wearing a suit in court as the defence barrister explains that they come from a really good family, and that this was an isolated incident;
  • There may be longer-term consequences as well. They will vary from case to case. For example, the perpetrator (or equally the victim) may respond to the life-jolt they have experienced with substance abuse, or they may slide into depression. These, in turn, will carry other longer-term consequences. Relationships may be lost. Careers ended, life trajectories forever altered.

According to one estimate, the societal costs of alcohol-related problems in 2010 were in excess of $14 billion.  Ultimately, the personal costs can never be quantified.

And this pattern is repeated over and over again.

According to the NSW Bureau of Crime Statistics and Research, “ there were 913 police-recorded incidents of grievous bodily harm, 10,427 ambulance calls for assault and 14,106 emergency department presentations for acute alcohol illness in the [Sydney] CBD” over the period 2004-2013.  This was prior to the government’s 2014 “lock-out” laws.

Between 2010 and 2013, although the proportion of those experiencing physical abuse by persons who were intoxicated remained constant, the number of persons experiencing physical abuse rose from 1.5 million to 1.7 million (NDSHS 2013, p 45).

According to the Australian Institute of Health and Welfare, at least once a year, 45% of Australians drink so much on a single occasion that they are at risk of an alcohol-related injury.  More men binge drink than women (58% vs 32%) (Australia’s Health 2014, p 164).

That’s excluding the risk of chronic harm caused by excess drinking, which affects one in five Australian adults.

Let’s include this evidence in the conversation when we talk about alcohol retailing restrictions.  Current laws may appear a bit less blunt than the pro-alcohol lobby would have you believe.

The role of law in noncommunicable disease prevention: an easy-to-digest explanation

Public health lawyers like me are often challenged on their claim that the law can (and should) play a significant role in the prevention of noncommunicable diseases (NCDs). Future Leaders, an Australian philanthropic organisation, has recently published an open-access, clearly written book on NCD prevention called Dancing in the Rain: Living with NCDs, which includes a chapter by Professor Larry Gostin and I on the role of law in NCD prevention. Here we describe the growing global governance framework for NCD prevention, and the range of new initiatives that governments around the world are using to combat NCDs, including measures that draw upon law and regulation. We contrast this widespread global innovation with Australia’s failure to take decisive action in relation to the prevention of obesity and excessive alcohol consumption, asking why Australia has ended up as a ‘laggard’ in these areas when it remains the world leader in tobacco control. This is an easy-to-digest introduction to the interaction between law and NCD prevention, and it sits alongside a number of other insightful chapters from prominent Australian activists and academics, including Dr Alessandro Demaio, Professor Fiona Stanley, and Professor Rob Moodie.

Dancing in the Rain is accessible in full via the following link: http://bit.ly/1QoDyLS

Lifetime achievement award for Professor Lawrence Gostin

Professor Lawrence Gostin, the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University, and a longtime friend of Sydney Law School and the Centre for Health Governance, Law & Ethics, has been honoured by the American Public Health Association’s Law Section for “Lifetime Achievement in Public Health Law ”.

Professor Gostin teaches a popular unit, Global Health Law, in Sydney Law School’s Master of Health Law program.

In his short acceptance speech, Professor Gostin reflected on how the field of public health law has flourished over the course of his professional career, and of the challenges and opportunities for younger scholars.

CHGLE event photo
Professor Lawrence Gostin (centre), seen here at a Sydney Law School event in July 2015, standing with: L to R: Dr Belinda Reeve (Sydney Law School), The Honourable Michael Kirby AC CMG, Ms Alexandra Phelan (SJD candidate, Georgetown University Law School), and Professor Glenn Cohen, Harvard Law School and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics)

Dancing on Christopher Hitchens’ grave? The tricky business of talking about consequences

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Vanity Fair, February 2004

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A “pro-smoking blogger for the libertarian right”  accuses me of “dancing on Christopher Hitchens’ grave”.

And other stuff.

Christopher Snowdon is a Research Fellow for the UK-based Institute of Economic Affairs, a think tank that receives tobacco funding.  He is an opponent of plain tobacco packaging, keeper of the pure flame of libertarianism etc.

My sin – contained in a paper forming part of a symposium on public health regulation and the “nanny state”, was to reflect on a self-confessed “crime spree” Hitchens took in New York City  in late 2003.

During the course of an autumn day, Hitchens broke as many of the city’s “petty ordinances” as he could, particularly its smoke-free laws.

At the time, Michael Bloomberg was in the second year of his first, 4-year term as NYC Mayor.  He went on to serve 3 full terms, introducing tobacco control laws that saw the adult smoking rate fall by 28% between 2002 and 2012, and the youth smoking rate fall by 52% between 2001-2011 .

Which is a terrible result, if you’re a tobacco company, but a magnificent result for New Yorkers – with changed life trajectories and longer, healthier lives for hundreds of thousands of people.

You can read about Michael Bloomberg’s public health legacy here.

Apparently embittered at the constraints on his smoking, Hitch lashed out, reflecting on the “shriveled core of the tiny Bloombergian mind”, and ending with:

“Who knows what goes on in the tiny, constipated chambers of his mind? All we know for certain is that one of the world’s most broad-minded and open cities is now in the hands of a picknose control freak.”

The editor of Vanity Fair, Graydon Carter, who at the time was being serially fined by the NYC Health Department for flouting its smoke-free laws and smoking in his office, published the whole account.

Then, in June 2010, at the height of his powers, Hitchens announced he had cancer  of the oesophagus.  As one journalist wrote, “The celebrated drinker and smoker who once claimed that “booze and fags are happiness” had succumbed to a cancer most often associated with drinking and smoking.”

Hitchens died less than 18 months later.

Like his hero Hitchens, Snowdon believes that smoke-free laws are anti-libertarian.  The mind boggles at this point, given that globally, one in ten people who die from tobacco are non-smokers who are unintentionally harmed (poisoned) by smokers….

However, to my mind the more interesting theme that excites Snowdon is the question of whether Hitchens’ diagnosis challenged his libertarian convictions.  Snowdon assumes that the rationale for discussing this issue was to concoct some sort of contrived, deathbed confession:

“Magnusson clearly thinks that Hitchens got his comeuppance when he died of cancer and wants to believe that he renounced his principles on his death bed.”

The record shows that Christopher Hitchens castigated those who promoted effective tobacco control, yet spoke frankly and publicly about his own cancer, acknowledging that it was probably caused by his smoking and drinking.

Hitchens made his choices, and talked about them freely.  He made his private life a public matter.

So we have permission, I think, to talk about Hitchens – who I suspect would have approved of being the topic of conversation.

“I’ve come by this particular tumor honestly”, he told Anderson Cooper on CNN in August 2010.  “If you smoke, which I did for many years very heavily with occasional interruption, and if you use alcohol, you make yourself a candidate for it in your sixties.” “I might as well say to anyone who might be watching – if you can hold it down on the smokes and the cocktails you may be well advised to do so”.

Cooper responded “That’s probably the subtlest anti-smoking message I’ve ever heard”.

“The other ones tend to be more strident”, Hitchens replied, “and for that reason, easy to ignore”.

“Even if this weren’t incredibly tasteless” Snowdon writes, “Magnusson could hardly have found a less fitting person to use as an example.”

Snowdon seems to think that the point of discussing Hitchens is to trip him up on his words, seek to make an object lesson out of him, or worse, to gloat.

But there are other reasons why Hitchens’ account of his illness is worth reflecting on.

Certainly, it was a compelling story. Statistics are easy to brush off: just ask a smoker.  But stories are a little harder.

Here comes this libertarian prophet – as sure as any libertarian ever was about the infantilising effect of public health laws – suddenly forced to come face to face with his own premature (and probably preventable) death.  Did he have conflicting feelings, second thoughts?  It’s not an unfair question.

“In whatever kind of a ‘race’ life may be”, Hitchens wrote  in 2010, “I have very abruptly become a finalist….In one way, I suppose, I have been ‘in denial’ for some time, knowingly burning the candle at both ends … .[F]or precisely that reason, I can’t see myself smiting my brow with shock or hear myself whining about how it’s all so unfair … . Instead, I am badly oppressed by a gnawing sense of waste. I had real plans for my next decade and felt I’d worked hard enough to earn it. Will I really not live to see my children married?  To watch the World Trade Center rise again?

Through his story, we catch a glimpse of the public interest that public health laws and policies are intended to protect.

The public interest in tobacco and alcohol control laws does not exist for the sake of some abstracted, disembodied “public”, but ultimately for the sake of all those individuals who might otherwise die prematurely, or just as frequently, as Simon Chapman writes, live long in distress and isolation due to the disintegrating impacts of their illness.

Bloomberg’s tobacco control laws were intended to help prevent the kind of death Hitchens died.  To say that is not to gloat.

Consequences tend to be trivialised or absent when libertarians set out their plans for how the world ought to be.

The narrative we tend to get is the one written by the be-suited Hitchens in 2003, flying through Central Park with his feet off the bicycle pedals, witty, cancer-free, not the man 7 years later, who writes  “The chest hair that was once the toast of two continents hasn’t yet wilted, but so much of it was shaved off for various hospital incisions that it’s a rather patchy affair. I feel upsettingly de-natured. If Penélope Cruz were one of my nurses, I wouldn’t even notice”.

How should public health advocates talk about consequences?

In the United States, gun enthusiasts have become so highly proficient at ignoring consequences that anyone who dares link the most recent gun-related massacre [insert dates & details] with that shocking, leftist, evil thing called “gun control” – is howled down for seeking to “politicise a personal tragedy“.

Plenty of compelling stories, it seems, but never a teachable moment.

But for the rest of us, prevention matters because people matter.  Their needless suffering or death is relevant to how we evaluate the wisdom of government actions, laws and policies.

The nanny state conspiracy theorists overstate their case.  Hitchens’ freedom to make choices about smoking, drinking, diet and lifestyle were his for the taking.  No one stood in his way.

Hitchens had no Damascus conversion over tobacco, or anything else for that matter, but his public expressions of regret were no less powerful for their subtlety.

[Interview between Anderson Cooper (CNN) and Christopher Hitchens, 6 August 2010: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385×492527 (transcript);  http://ac360.blogs.cnn.com/2010/08/07/video-extended-interview-hitchens-on-cancer-and-atheism/ (video).]

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