Once more with feeling…Barnaby Joyce on the merits of a sugary drinks tax

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Photo: Tongan Health Promotion Foundation

 

When I looked up from marking exams and saw the look on Barnaby Joyce’s face, I just knew he was seeing red about the Grattan Institute’s proposal for a sugary drinks tax, levied at a rate of 40 cents per 100 grams of sugar.

The Grattan Institute report estimates that such a tax would reduce the consumption of sugary drinks by about 15% and generate up to half a billion dollars that could help to pay for a broad array of obesity-related programs.

Imagine!  A public health policy that fights obesity, diabetes and tooth decay AND generates revenue.

The National Party hate the idea.  Deputy Prime Minister and Leader of the Nationals, Barnaby Joyce told reporters:

“If you want to deal with being overweight, here’s a rough suggestion: stop eating so much, and do a bit of exercise.  There’s two bits of handy advice and you get that for free.  The National Party will not be supporting a sugar tax”.

Well that’s what he said.

But here’s what I heard: “We know that obesity and diabetes are out of control.  But we have ideological objections to being part of the solution”.

The same day that Minister Joyce shared these thoughts with reporters, the Australian Food and Grocery Council issued a press release saying that it was seeking a “constructive response to obesity”.

“Obesity is a serious and complex public health issue with no single cause or quick-fix solution”, explained the AFGC, but “it is not beneficial to blame or tax a single component of the diet”.

With most complex issues, you start somewhere.  You come up with evidence-informed policies and you try them out.  You rigorously evaluate their performance, and learn by doing.

But not with obesity.  “Complexity” is the new enemy of action.  Since the causes of obesity are complex, every “single” policy advanced in response can be dismissed as a dangerously simplistic solution to a complex problem.

Welcome to obesity, the problem we’re not allowed to start to fix.

Except with personal responsibility, of course.

 

Personal responsibility…the answer to obesity, traffic accidents, terrorism, Zika virus, perhaps everything?

In a limited sense, Barnaby Joyce is right.

The only cure for personal obesity is personal responsibility.

But personal responsibility has turned out to be a spectacularly poor solution to “societal obesity”.

By societal obesity, I am referring to the trend towards overweight and obesity that has arisen over the past few decades and now affects the majority of adult men and women (and more than one in four children).

Since each of us is an individual, and because we live in a culture that prizes individual autonomy, it’s easy to fall into the trap of believing that individual effort, personal motivation, is the solution to the world’s ills.

But just as the global epidemics of obesity and diabetes were not caused by a catastrophic, global melt-down in personal responsibility, personal responsibility is equally unlikely to provide the magic solution.

That’s where public policies come in.

Governments know all this, but with the exception of tobacco control, they seem reluctant to apply their knowledge in the area of preventive health.

The fact is, from road traffic accidents to terrorism, smart governments:

  • acknowledge the complexity of the factors that contribute to societal problems;
  • They acknowledge that multiple interventions are needed, in many settings;
  • They acknowledge that possible solutions need to be trialled now, under conditions of uncertainty, instead of handing the problem to future generations.
  • They monitor the actions they take, because healthy public policy is a dynamic, ongoing process; and finally
  • They give a damn.  Meaning that they recognise they are accountable to the community for helping to solve difficult, societal problems, and for the performance of the public policies they administer.

Imagine if Australia’s government took that approach with obesity.

 

The debate about a sugary drinks tax is here to stay: it will never go away

A tax on sugary drinks will get National Party politicians in trouble with sugar producers, and Liberal Party politicians in trouble with big food.

The real problem is that it might work.  Based on the experience of Mexico, a sugary drinks tax will very likely cause consumers to purchase fewer sugary drinks.

Despite batting it away, a tax on sugary drinks is on the public agenda, and it’s here to stay.  I don’t see the sugary drinks industry winning on this issue indefinitely.

Partly because Australian health researchers will keep it on the agenda.

It will come back, and back.  Especially as evidence of its success accumulates overseas.

One conversation worth having is how revenues from a sugary drinks tax might support agricultural producers in rural Australia, helping to cushion them from the adverse effects (if any) of the tax and creating incentives for the production of a sustainable and healthy food supply.

That is simply one question worth considering during the process of developing a national nutrition policy (which we don’t currently have).

In the meantime, Australian health advocates need to broaden their base.

Advocacy for public policy action on obesity needs to become more closely integrated with advocacy on food security.   And advocacy in both areas needs to be linked more closely to action on reducing health inequalities.

But enough about all that.  You really came here for Barnaby, didn’t you?

OK, here he is:

The ATO is not a better solution than jumping in the pool and going for a swim. The ATO is not a better solution than reducing your portion size. So get yourself a robust chair and a heavy table and, halfway through the meal, put both hands on the table and just push back. That will help you lose weight.”

UN Secretary-General’s High-level Panel: a bold vision for improving access to essential medicines, or a “deep disappointment”?

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The UN Secretary General’s High-level Panel on Access to Medicines published its final report on 14 September 2016.

It took just two days for the US State Department to dismiss the report in a strongly-worded rebuke.

The Panel’s recommendations cover a wide area, including countries’ use of the flexibilities contained in TRIPS [the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights Agreement] and TRIPS-plus  provisions, incentives for research and development of health technologies, and global governance arrangements for R&D, production, pricing and distribution of medicines and health technologies.

The UN report took place against the background of efforts by US pharmaceutical companies to strengthen IP protection for medicines, including through the (now apparently very dead) Trans Pacific Partnership Agreement.

The Panel, which included Sydney Law School alumnus and former High Court Justice Michael Kirby, was an eminent but mixed group ranging from grassroots HIV treatment activists, former politicians, academics and senior executives of pharmaceutical firms.

Glancing over the biographies of members, you get the feeling that finding a consensus was always going to be a challenge.

Half the Panel members wrote additional commentaries to the Panel’s report, criticising the report for making dubious and unrealistic assumptions, or alternatively, for failing to adopt bolder and more visionary proposals on financing, IP and access (pp 54-63).

Regrettably, the Panel’s report, like the appointment of the Panel itself, has been ignored by Australia’s media.

Australians live in a bubble, protected by the Pharmaceutical Benefits Scheme (PBS) from experiencing the reality of real-world prices for essential medicines.

Under the PBS, patients pay a maximum of $38.30 for medicines listed on the PBS.  “Concessional patients” ie those who hold a pensioner concession, seniors health care or other concession card, pay only $6.20.

Unfortunately, Australia’s much-loved safety net for pharmaceuticals leads to lack of interest in this most pressing of global health issues: how to increase access to medicines at prices that are affordable to those who need them, while ensuring incentives exist for future R&D in health technologies.

Key issues and recommendations

A key argument in the Panel report is that there is an incoherency and imbalance between the right to health and the rules and practice of international trade and intellectual property protection.

For example, while IP rights are enforced by dispute resolution provisions found in WTO agreements, and in bilateral and multilateral free trade and investment agreements, the accountability mechanisms for human rights, including the human right to health, lack precision, legal weight and enforceability (p 8).

The Panel referred to the proliferation of “TRIPS-plus” free trade agreements that require countries to dispense with the flexibilities in TRIPS (see pp 24-25), writing that:

“Political and economic pressure placed on governments to forgo the use of TRIPS flexibilities violates the integrity and legitimacy of the system of legal rights and duties created by the TRIPS Agreement as reaffirmed by the Doha Declaration” (p 8).

The Panel report encourages countries to continue to make full use of TRIPS flexibilities in the spirit of the Doha Declaration, curtailing the evergreening of patents and ensuring that legislative criteria for the award of patents only reward genuine innovations.

The Panel encourages countries to adopt legislation authorising the issuing of compulsory licences, particularly in order to ensure affordable supply of essential medicines.

The Panel also encourages universities and research organisations that hold patents for inventions developed with public funds to prioritise public health objectives over financial returns, including by issuing non-exclusive licences, and participating in public sector patent pools.

The Panel urged governments to review the access to medicines situation in their own countries in light of human rights principles, ensuring that civil society is given the support it needs to submit shadow reports.  According to the Panel, national policy on R&D should be coordinated by an inter-ministerial body to ensure coherence.

Similarly, the Panel recommended that the UN Secretary-General should establish an inter-agency taskforce on health technology innovation and access for the duration of the Sustainable Development Goals (2015-2030).  The Taskforce would oversee the implementation of the recommendations of the High-level Panel and would report annually to the UN Secretary-General.

The Panel saw transparency as a vital accountability mechanism, urging private sector companies to “have a publicly available policy on their contribution to improving access to health technologies”.  The policy should set out timeframes, reporting procedures and lines of accountability, including board-level responsibilities for improving access to health technologies (p 11).

Two further interesting recommendations were that national governments should require manufacturers and distributors of health technologies to disclose commercial in-confidence information to drug regulatory and procurement authorities.  This should include the costs of R&D, production, marketing and distribution of the health technology, as well as the existence of any public funding received by the company during the process of development.

Secondly, the Panel recommended that the World Health Organisation should maintain an accessible, global database showing the prices of patented and generic medicines (and biosimilars) in the public and private sectors of all countries where the medicines are registered.

State Department’s response

In its rebuff to the Panel’s report, the State Department said:

We believe that we can both increase access to medicines and support innovation for the development of new and improved drugs for the world’s most critical health challenges. Indeed, there can be no access to drugs that have not been developed: support for innovation is essential.

No one disputes that the costs of investment in new health technologies can be substantial.

However, the UN Panel pointed to the complexity of the challenge.  In some cases, the problem is that the market for diseases that affect few patients, or disproportionately affect the citizens of poorer countries, is simply inadequate to incentivise the necessary investment.

In 2014, 1.7 billion people in 185 countries were living with a neglected tropical disease.  These diseases account for around 12% of the global burden of disease, yet over the period 2000-2011 only 4% of therapeutic products registered by the European Medicines Agency and the US Food and Drug Administration were for these diseases.

Similarly, antimicrobial resistance is a slowly mounting crisis, yet “only one novel class of antibiotics has been developed in the past 40 years” (p 14).

This state of affairs suggests that it is an over-simplification to simply assert that the answer lies in countries ratcheting up their IP protections in the hope that market forces will fix the problem.

One doesn’t need to deny the value of patent rights and incentives to nevertheless conclude that the system is broken.

It’s impossible to conclude otherwise when millions of the world’s citizens lack the safety net of a PBS, and where access to the medicine they need at real-world prices overwhelms their productive capability.

A substantial literature illustrates that essential medicines remain unaffordable for many people, in many countries of the world; see, for example here, and here.

Are you interested in studying health law at Sydney Law School?  You do not need a background in law to do so.  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  Click here for further details.

Sydney Health Law’s Food Governance Conference

 

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In the first week of November, Sydney Health Law will be hosting the Food Governance Conference. The conference is a collaborative endeavor between Sydney Law School and the Charles Perkins Centre, the University of Sydney’s dedicated institute for easing the global burden of obesity, diabetes, and cardiovascular disease. The conference also has sponsorship from The George Institute for Global Health and the University’s Cancer Research Network.

The Food Governance Conference will explore the role of law, regulation and policy in addressing the key challenges associated with food and nutrition in the 21st century, including food security, food safety, and preventing diet-related disease such as diabetes and cardiovascular disease. It also engages with issues related to sustainability, equity, and justice in the food supply, with a strong focus on nutrition and diet-related health in Aboriginal and Torres Strait Islander communities.

In taking such a broad focus we hope that the Conference will highlight the interrelationships between the main challenges facing the global food system in the 21st century. The conference will also showcase the work of researchers in developing new, innovative solutions to these challenges, with the conference including presenters from across Australia, as well as from the UK, Canada, and New Zealand. Some of the issues considered at the conference include:

  • Taxes on sugar-sweetened beverages
  • Free range egg labeling
  • Urban farming
  • The role of business in improving nutrition and diet-related health, and
  • The influence of trade agreements on the global food system

A draft conference program and registration form are available on the conference website.

Public events

We have an exciting program of events around the Food Governance Conference, including two free, public lectures to open the conference.

Professor Corinna Hawkes will be giving the opening address for the conference on Tuesday the 1st of November at 6pm at the Charles Perkins Centre Auditorium. This lecture is free and open to the public. Professor Hawkes is the Director of the Centre for Food Policy at City University London and a world-renowned expert on food and nutrition policy. She’ll be speaking on the three biggest challenges facing the food system, and how we fix them. If you’re interested in this talk, you can register at this link.

Dr Alessandro Demaio will also be giving a public lecture at 1-2pm on Tuesday the 1st of November at Sydney Law School. Dr Demaio (from the World Health Organisation) will be speaking on the links between food, nutrition and cancer, and what the nutrition community can learn from the cancer community from its fight against tobacco. Further details about his talk are available at this link.

Workshop on food advocacy

Along with the Charles Perkins Centre, the Australian Right to Food Coalition is hosting a masterclass on becoming an effective food policy advocate, featuring Professor Corinna Hawkes. The purpose of this master class is to encourage debate among academics and civil society about the role of advocacy in food and nutrition policy, what it is, and how it can be used more effectively. Registrations for the master class can be made herePlease note that the master class is now full.

We’re looking forward to the inaugural Food Governance Conference at the University of Sydney, and we hope to see you there. We welcome any questions about the conference, which can be directed to Dr Belinda Reeve: Belinda.reeve@sydney.edu.au

Follow #foodgovernance2016 on Twitter for updates about the conference!

Abortion law reform on the horizon in NSW and Queensland

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Contrary to popular belief, abortion is not available “on demand” in NSW.

The Crimes Act 1900 (NSW) contains three criminal offences relating to abortion.

Section 83 creates an offence for unlawfully administering a drug or using any instrument or other means to procure a woman’s miscarriage,

Section 82 creates an offence for a woman to unlawfully procure her own abortion (eg by taking abortion drugs), while section 84 creates an offence for unlawfully procuring drugs for the purposes of an abortion.

The scope of these offences reflect the limits of the law’s protection for the life of the foetus in the face of a decision by the pregnant woman to terminate her pregnancy.

However, the question of whether the doctor’s actions – or those of the woman or another person – are “lawful” has been left to the common law.  The leading decision is a District Court case from 1971 called R v Wald ([1971] 3 DCR (NSW) 25).

According to Wald, lawfulness turns on whether the jury (or judge) accepts that the person who performed the abortion believed on reasonable grounds that their actions were: “necessary to preserve the women…from serious danger to their life, or physical or mental health, which the continuance of the pregnancy would entail” (going beyond the usual dangers of childbirth), and secondly that the actions taken were not out of proportion to that danger.

Courts have elaborated on a number of issues that emerge from the principles set out above.

For example, in CES v Superclinics (Australia) Pty Ltd [1995] NSWSC 103, Justice Kirby wrote that the economic and social stresses that pregnancy and, in due course, motherhood might impose on the woman were relevant to the doctor’s conscientious belief on reasonable grounds that the abortion was necessary to preserve the physical or mental health of the mother (thereby negativing an offence under section 83 of the Crimes Act).

 

Removing abortion from the criminal law

Greens MP Mehreen Faruqi MLC has introduced the Abortion law Reform (Miscellaneous Acts Amendment) Bill 2016 into the NSW Parliament.

The Bill seeks to do four main things.

Firstly, the Bill would remove abortion from the Crimes Act 1900 (NSW) by repealing the three criminal offences in the Act that relate to abortion.

Secondly (to the extent that it exists), the Bill would abolish any remaining rule of common law creating an offence for procuring a woman’s abortion.

 

Abortion and the duty to refer

Thirdly, having banished abortion from the criminal law, the Bill would impose new requirements on doctors that would take effect through the Health Practitioner Regulation National Law – the statutory framework through which the medical profession enforces norms of professional conduct against medical practitioners.

Section 139C of the National Law, in its application to NSW, sets out the matters which may constitute “unsatisfactory professional conduct”.

Under the Greens Bill, a doctor who was approached by a patient seeking advice about abortion would be guilty of “unsatisfactory professional conduct” if they:

  • failed to tell the person about any conscientious objections to abortion that they had;
  • failed to refer the person in a timely manner to another health practitioner who the doctor knew did not have a conscientious objection to abortion, or to the local Woman’s Health NSW Centre, in order to ensure the woman had “full information about all of the person’s options in relation to the pregnancy”.

The intention of this amendment is appropriate.  It ensures that women are not kept in the dark about their options in ending a pregnancy because the doctor morally disapproves of their choice.  Victoria’s Abortion Law Reform Act 2008 contains a similar provision (s. 8).

Nevertheless, under the Greens Bill, a doctor would apparently be in breach of their professional obligations if they failed to refer the woman to someone who had no objections to abortion, irrespective of the woman’s circumstances and the reasons why she wanted the abortion.

So, to take an extreme example, a pro-life doctor would (obviously) be in breach of their professional obligations if they refused to provide a referral for a pregnant teenager who had been raped.

But so would a pro-choice doctor who nevertheless felt it was wrong to help a woman achieve an abortion because she wanted a boy, but had ended up pregnant with a girl.

This last scenario recalls the experience of Dr Mark Hobart, a Melbourne GP who was investigated for potentially breaching section 8 of the Victorian Act for failing to cooperate in an abortion.

“They wanted the abortion because they wanted a boy and they found out it was a girl” Dr Hobart told Ben Fordham on radio 2GB.

The woman was 18 and a half weeks pregnant.

As it turned out, Dr Hobart held a conscientious objection to all or perhaps most abortions.

In his words: “I guess I believe that life begins at conception, that human life is sacred….I know that other people [don’t hold views as strong as that] but that’s what I believe, I find it a big problem if someone asks me to refer them for an abortion”.

When I documented an “underground” in illicit euthanasia among health professionals working in HIV medicine in the late 1990s, in the book Angels of Death, one of the common ways that doctors, nurses, psychologists and others facilitated euthanasia was by referring people who requested it to others whom they knew would provide it.

Those who facilitated euthanasia in this way might have felt it was the right thing to do.  But they didn’t pretend they weren’t morally involved.

Impediments to access to abortion services are real (see eg Heather Rowe et al, “Considering Abortion: A 12 Month Audit of Records of Women Contacting a Pregnancy Advisory Service” (2009) 190 Medical Journal of Australia 69-72).

But requiring a doctor who has explained that they feel morally conflicted in facilitating the abortion in the circumstances of the case – to help the patient achieve it elsewhere – smacks of triumphalism.

The decision a woman reaches about her pregnancy should be respected.

But doctors should not be treated as moral slaves to their patients, especially in the case of this procedure, the moral character of which is notoriously contested.

There ought to be room for a more sensitive balance between the freedom that a woman ought to have to make decisions about her pregnancy, and the sincerely felt moral beliefs of the clinician.

It’s possible that euthanasia may be legalised in an Australian State within the next few years, if not sooner.  Will it also be “unsatisfactory professional conduct” for a doctor who has moral objections to euthanasia to fail to refer a patient to a colleague who is willing to provide a hot-shot?

 

Safe access zones for abortion

The fourth thing the Greens abortion law reform Bill would do is to implement a 150 metre “safe access zone” around abortion clinics.

A similar exclusion zone exists under the Victorian legislation.

Safe access zones were introduced to protect women who wish to access abortion services, and the staff of abortion clinics, from harassment, obstruction and humiliation by protestors.  In some cases, these protests have been carried on for decades.

 

Abortion law reform in Queensland

Two Bills to amend Queensland’s abortion laws have also been introduced into the Queensland Parliament.

Like NSW, Queensland has criminal prohibitions for “unlawfully” performing an abortion, unlawfully supplying drugs or instruments to procure an abortion, or in the case of a woman herself, unlawfully administering any “poison or noxious thing” to procure a miscarriage (sections 224-226).

However, the common law’s articulation of the circumstances in which an abortion is lawful is considered to be narrower in Queensland than in NSW.

In 2010, a young woman and her boyfriend were prosecuted under section 225 for procuring and self-administering RU486.  It took less than an hour for a jury to find them not guilty.

Two years earlier, in a remarkable judgment, a Justice of the Queensland Supreme Court found that parents lacked legal capacity to authorise an abortion for a 12 year old girl who was 18 weeks pregnant.  Rather, court approval was required.

The first Bill, the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 (Qld) would effectively take abortion out of the criminal law by repealing sections 224-226 of the Queensland Criminal Code.

The Health (Abortion Law Reform) Amendment Bill 2016 then sets out a new regulatory regime for abortion within the Health Act.

The Bill states that abortion procedures must only be performed by qualified medical practitioners, assisted by qualified nurses who may administer drugs at the written request of a doctor.

No limitations are imposed on the performance of abortions before 24 weeks: these procedures would effectively be available upon demand from a willing medical practitioner, as in Victoria.

Abortions after 24 weeks could only proceed when a doctor had consulted with at least 1 other doctor and both believed that continuing the pregnancy would involve “greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated”.

Nor is there any duty imposed on a medical practitioner to perform or assist in an abortion (except in an emergency, in order to save the woman’s life or to prevent serious physical injury).

The Bill provides protection from harassment, intimidation and obstruction for persons entering or leaving an abortion facility which the Minister has declared to be a protected area.

The Bill also prohibits protests, “by any means”, between the hours of 7.00am-6.00pm or for such other period   as the Minister declares.  The protected area must extend outwards at least 50m from the abortion facility.

In summary: I would be surprised if either the NSW or Queensland Bills are successful.  Already, a Parliamentary Committee of the Queensland Parliament has recommended that the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 should not be passed.

Rather than seeking to reverse all the perceived problems of current law in a single legislative episode, abortion law reformers may find it more effective to adopt an incremental approach.

In jurisdictions where the public mood remains more conservative, it might be wiser for law reformers to set out to achieve less.

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  You do not need a law degree to apply.  Click here for further details.

The Callinan inquiry into Sydney’s lock-out laws

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A few questions came to mind when I read that former High Court Justice Ian Callinan had been appointed to head the independent inquiry into amendments to NSW’s liquor licensing laws, including the controversial lock-out laws”.

Mr Callinan was a member of the High Court when it decided, by a 3:2 majority, that hoteliers owe no duty to use reasonable care to prevent patrons from causing harm to themselves as a result of excess drinking.  Despite the economic interest hoteliers have in encouraging patrons to drink, and to keep drinking.

The primacy of personal responsibility was clearly the over-riding value in the statement by Justice Callinan that:

Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess [Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29, at [121]].”

The lock-out laws that currently apply in the CBD and Kings Cross precincts of Sydney were neither an exercise in temperance by the NSW Government, nor a response to the fact that alcohol is responsible for 5% of Australia’s burden of disease (Australia’s Health 2016, p 59).

Rather, the lock-out laws were part of a package of amendments seeking to reduce the number of unprovoked alcohol-fuelled assaults by yobbos on Sydney streets.

For a short review of the “one-punch” reforms, see here.

The impact of the liquor licensing amendments on supermarkets and bottle shops was discussed here.

The death of Thomas Kelly, who was punched in the head during a night out in Kings Cross, was partly a catalyst for these changes.

In July, the Kelly family suffered a further loss with the death of another son, Ralph.

The injustice visited upon this family is heart-breaking, it is dizzying.

But it truthfully illustrates how alcohol-related harm spreads outwards – through families and beyond, like the ripples in a pond.

Much of that harm is externalised by the alcohol industry onto others.

What is the industry’s response?

Industry-funded “DrinkWise” public health messages/advertisements (can’t tell which) like this one, that build brand value for alcohol companies and associate beer brands with water sports.

Yep, that ought to work.

Watch out for the new “SmokeWise” e-cigarette advertisements – brought to you by Philip Morris….

 

Highlights from the Callinan report

In his report, Mr Callinan gave particular weight to the opinions and experience of police and the medical profession.  He said:

“The police and the medical profession, the latter of whom are financially and generally otherwise disinterested in the relevant issues, are strongly, adamantly, of the opinion that it is the Amendments in total and in combination that make them effective in reducing alcohol-fuelled violence and anti-social behaviour in the [CBD and Kings Cross] Precincts”.

He concluded that the Precincts were “grossly overcrowded, violent, noisy, and in places, dirty, before the Amendments, but that after them, they were transformed into much safer, quieter and cleaner areas” (p 10).

Mr Callinan was dismissive of the assumption that the vibrancy of a city at night can only be measured by the amount of alcohol consumed or available.  However, he acknowledged that opportunities for live entertainers may have diminished, and that the amendments may have contributed to some closures of premises selling alcohol, and some reductions in employment opportunities:

“The Amendments have come at a cost which is not quantifiable but which should not be exaggerated to employment, live entertainment and the vibrancy of the Precincts” (p 11).

Mr Callinan did not accept that violence had simply been displaced to other areas.  In response to the usual suggestion that anti-social drinking should be addressed by “cultural change and education”, rather than regulation, he said: “Cultural attitudes are difficult and slow to change.  The legislature in the meantime has to deal with the situation as it exists” (p 6).

Mr Callinan pointed out that the lock-out laws had enabled more police to be deployed in detecting and preventing non-alcohol-related harm, rather than tying up resources (pp 8-9).

Mr Callinan stated that he regarded the 10 pm curfew as making “little or no contribution to violence and anti-social behaviour in the Precincts” (para 9.10), although he acknowledged it might contribute to domestic violence (para 9.11).

He recommended relaxing the hours of sale for takeaway alcohol at licensed premises to 11 pm, and home delivered alcohol until midnight (para 9.10).

Two of the more controversial liquor control measures included in Mr Callinan’s inquiry were the “lock out” and “last drinks” provision.

For a trial period of two years, Mr Callinan recommended a relaxation of the lock-out laws from 1.30 am to 2.00 pm, but only to enable patrons to enter those parts of premises offering live entertainment.  He recommended a further relaxation of the liquor sales cessation period, from 3.00 am to 3.30 am, but only in respect of patrons in the “live entertainment” parts of the premises.

The NSW Government has indicated it will respond to the Callinan report before the end of the year.

Are these photos the pointy end of tobacco control? Or just another example of what the tobacco industry does best?

Blu electronic cigarettesrecent e-cigarette adwhy quit - switch to Blu

If the e-cigarette industry in Australia has a martyr, his name is probably Vince van Heerden.

More about him in a moment.

Advocates for e-cigarettes claim that they are a healthier alternative to smoking, and provide a ray of hope for desperately addicted smokers.

However, before you make up your mind, look at how e-cigarettes are promoted in countries like the US where they can be freely sold.

I am not a fan of e-cigarettes.  Some of the (highly visual) reasons why are given at the bottom of this post.

The June 2016, the Australian Competition and Consumer Commission (ACCC) took action against two online retailers for suggesting that e-cigarettes do not contain carcinogens and toxic compounds.

Second hand smoke may be more toxic than e-cigarette vapour, but according to a recent review by NSW Health, “passive exposure to EC vapour has the potential to lead to adverse health effects”.

According to the review: “…EC vapour contains elevated levels of nicotine, PM [fine particulate matter], glycerine, propylene glycol, formaldehyde and acetaldehyde, PAHs [polycyclic aromatic hydrocarbons] and metals”.

And that’s putting to one side documented reports of pediatric poisoning and burns from exploding lithium ion batteries in e-cigarettes.

EVO photo

When you see advertisements like this giving tacit permission for parents to vape all over their kids, you realise that the e-cigarette industry craves truth, justice, evidence (and profits) in much the same way as the cigarette industry.

But back to van Heerden.

 

Tale of an e-cigarette martyr?

Van Heerden, an IT professional, ran an e-cigarettes business called “Heavenly Vapours” from his home in Perth, selling e-cigarettes and nicotine-free “e-juice”.

Van Heerden was charged with an offence under section 106 of the Tobacco Products Control Act 2006 (WA).

Section 106 says:

“A person must not sell any food, toy or other product that is not a tobacco product but is…designed to resemble a tobacco product”.

Are e-cigarettes [and vaping hardware generally] “designed to resemble tobacco products”, such as cigarettes and cigars?

The Magistrate didn’t think so, and dismissed the charge.

The WA Health Department appealed.

In van Heerden v Hawkins, Justice Janine Pritchard of the Supreme Court of Western Australian allowed the appeal, convicted van Heerden and later imposed a fine of $1,750.

She also ordered van Heerden to pay the Department’s costs both in the Magistrate’s Court ($5,578), and in the Supreme Court ($ 8,500).

Her Honour noted that van Heerden had set up a webpage seeking donations to fund a further appeal.

That appeal has now run its course.  In March 2016, the Court of Appeal of the Supreme Court of Western Australia unanimously upheld Justice Pritchard’s decision.

You can read the Court of Appeal’s judgment here.

In imposing the fine and making the costs order against van Heerden in June 2014, Justice Pritchard accepted that van Heerden honestly believed e-cigarettes were a “healthy alternative to smoking cigarettes”.  She also noted that conviction under section 106 did not depend on the product that was sold being “harmful to public health”.

 

Why did the Court of Appeal confirm van Heerden’s conviction?

The Court of Appeal judgment provides a helpful primer on the principles of statutory interpretation – especially the judgment of Buss JA [paras 93-103].

The judgments also raise interesting questions for e-cigarette businesses operating in States that have tobacco control laws that are similar to WA’s section 106 (see below).

The most interesting argument raised by van Heerden was that section 106 was not intended to create an offence for the sale of “harm reduction” products that are intended to discourage the use of ordinary cigarettes.

Counsel for van Heerden argued that the prohibition in section 106 should be understood in light of the purposes of the Act, which included “discouraging the use of tobacco products”.

Counsel argued that while cigarette smokers inhale tar and tobacco-related toxins, this is not the case with those who inhale e-cigarette vapour, since electronic cigarettes do not involve combustable tobacco: [90].

Furthermore, “electronic cigarettes compete directly with ‘tobacco products’ on the basis of the ‘substantial and obvious differences between them” [91].

In response, Justice Buss JA pointed out that the purpose of legislation arises from the meaning of the text itself, when considered in context, as distinct from assumptions about “the desired or desirable reach of operation of the relevant provisions” [96].  The context includes the history of the legislation, and the “mischief to which the statute is directed”.

In 2006, when the WA Act was introduced, electronic cigarettes had not yet appeared in Australia.  (It was not until 2007 that Philip Morris began test marketing first generation “heatbar” cigarettes in Melbourne).

heartbar cigarettes

The Court pointed out that legislative provisions that set out the purpose of an Act are certainly relevant to construing the meaning of a statutory words.

If two competing constructions are open, the object or purpose of the legislation, where it is stated, will be relevant to choosing between those meanings.

On the other hand, no such choice arises when the plain and ordinary meaning of the text is apparent [paras 176-182].

In this case, section 106 prohibited sale of food, toys and other kinds of products (not being food or toys) that were designed with the intention of having a likeness or similarity to tobacco products [paras 114-118].

Section 106 did not include a defence if the products sold might be used to assist people to give up or to minise their smoking [para 121].

In other words, section 106 did not exclude products that might be used in ways consistent with “one or more of the express or implied purposes of the Act” [para 137].

Ultimately, the text of section 106 simply didn’t support the argument that Parliament had intended to create a distinction between “products designed to resemble tobacco products” and “products designed to reduce tobacco-related harm” [paras 123-125, 151, 154].

Even if e-cigarettes were properly regarded as harm reduction products, the language of section 106 did not exempt them from the prohibition on sale, given the clear language of the section [para 151].

Accordingly, whether or not e-cigarettes should be exempted from the prohibition in section 106 was a matter for Parliament, not for the courts [para 182].

 

Implications of the van Heerden judgment

With his conviction upheld, Van Heerden has reached the end of the road.

However, van Heerden appears to have raised a substantial sum of money for his legal costs from sympathisers.

Van Heerden’s conviction has interesting implications for retail sales of e-cigarettes in NSW, South Australia, and Queensland, which have similarly worded provisions to s 106.

For example, section 21(3) of the Public Health (Tobacco) Act 2008 (NSW) states that a person must not sell any confectionary, food, toy, amusement or other product “that resembles a tobacco product or is packaged to resemble a tobacco product”.

In Victoria, following a recommendation by the Secretary of the Health Department, the Health Minister is empowered to ban a product or class of products that “is not a tobacco product but resembles a tobacco product” [Tobacco Act 1987 (Vic) ss 15N-15S].

By contrast, in Tasmania and the ACT, the prohibition on sale of products that resemble a smoking or tobacco product applies only to toys or confectionary.

In the Northern Territory, the prohibition on sale of products resembling tobacco products only applies if the product is designed or marketed for consumption by children.

 

Are e-cigarettes the pointy end of tobacco control?

The merits of e-cigarettes should not be judged solely on their safety profile relative to cigarettes.

It is important to also consider evidence of the attractiveness of e-cigarettes to youth, their capacity to act as a gateway to nicotine addiction and later smoking, their observed function in undermining quitting through dual use, their potential to trigger relapse, not to mention their capacity to undermine hard-won social norms about smoke-free environments.

Let’s assume that some individuals do manage to quit smoking with the help of e-cigarettes.  That does not necessarily mean that legalising the sale of e-cigarettes is a good result for public health.

It is possible that e-cigarettes might be “good” for the health of some individuals, while at the same time being “bad” for the health of the population overall.  Such things are possible.

Studies that reach their conclusions about harm minimisation products by comparing the harm between a cohort of smokers and a cohort of e-cigarette users trivialize the complexity of the ways in which e-cigarettes are both pathways to and pathways from nicotine addiction and smoking.

E-cigarette use among high school students has skyrocketed by 900% in the United States, from 1.5% in 2011 to 16% in 2015.

No wonder tobacco companies are buying up e-cigarette companies.  Blu e-cigarettes, for example, was purchased in July 2014 by Imperial Tobacco, the world’s 4th largest tobacco company.

Self-evidently, it makes no sense to Imperial Tobacco to position e-cigarettes in a way that would undermine its “full harm” cigarette business.

There is emerging evidence that e-cigarette use is a risk factor that facilitates smoking.  A recent study of Southern Californian teenagers compared never-smoking e-cigarette users with never-smoking teenagers who had never used e-cigarettes.  Over a 16-month period, more than 40% of e-cigarette users progressed to smoking, and more than 10% of those who had never used e-cigarettes.  However, those who used e-cigarettes had 6 times the odds of progressing to smoking than those who had never used e-cigarettes.

So…are e-cigarettes the pointy end of tobacco control?

Well, let’s do the math.

This is how cigarettes used to be advertised.

springtime

This is how e-cigarettes are advertised now.

springtime 2

 

This is how cigarettes used to be advertised.

old tobacco ad

This is how e-cigarettes are advertised now.

recent e-cigarette ad

 

This is how your doctor and dentist used to advertise cigarettes.

dentistreccomendedLdoctor recommends lucky strike

According to the Huffington Post, in July 2016 a company called Nicoventures – owned, not coincidentally by British American Tobacco – published research claiming that 8 in 10 Australian doctors support the use of e-cigarettes.

BAT has a vaping device that is already licensed as a quit smoking aid in the UK, and available through the NHS.

Perhaps BAT is angling to have their product approved by the Therapeutic Goods Administration in Australia.

Oh dear.  So confusing.  Should we believe anything the tobacco companies say?

Well, perhaps sometimes…

Zero style

Are you interested in health law?  For further information on Sydney Law School’s Master of Health Law and Graduate Diploma programs, follow this link.

Named reporting of HIV: A positive step for public health?

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Image from Flickr.com

In Australia, doctors must notify public health authorities of new cases of HIV/AIDs. However, strict confidentiality requirements apply to the testing, treating and notification of HIV, protecting the identity of patients.

As part of its review of the New South Wales Public Health Act 2010, the Department of Health is considering whether to remove these confidentiality requirements from NSW public health legislation. Is this a move that should be welcomed by health care professionals and patients?

Infectious disease notification

All Australian jurisdictions have laws that require the notification of certain infectious diseases. In NSW, notification requirements can be found in the Public Health Act 2010, which creates five categories of diseases that must be reported by medical practitioners, pathology laboratories, and hospitals, including HIV/AIDs.

Section 56 of the Act places confidentiality requirements on information relating to a patient’s HIV status. There are three main components to section 56:

  • Notifications for HIV/AIDs must be made in a de-identified format;
  • A person’s identifying details must not be used when arranging a diagnostic test for HIV (except in hospital situations or with the person’s consent);
  • A person who, in the course of providing a service, obtains information that an individual has been tested for HIV or has HIV/AIDs, must take reasonable steps to prevent that information from being disclosed. However, the information may be disclosed to a person involved in the provision of care of the patient, so long as it is relevant to the provision of such care.

Section 56 allows for disclosure of identifying information in certain other circumstances, including if there are reasonable grounds to suspect that failure to disclose the information would likely be a risk to public health. This allows for the Secretary of the Department of Health to identify and manage HIV positive individuals who pose a risk to the health of others, including (as a last resort) through public health orders that allow for the mandatory treating and detention of patients living with HIV.

Review of the Public Health Act 2010 (NSW)

NSW Health recently published a discussion paper on the review of the Public Health Act 2010 (NSW). The Ministry’s preliminary view is that HIV-specific confidentiality protections should be wound back. The paper notes several difficulties that stem from the confidentiality requirements for HIV notification:

  • De-identified notification increases the likelihood of duplicate testing and errors in notification, and impacts negatively upon the collection of epidemiological data, surveillance, and monitoring, and follow-up care of HIV positive patients;
  • Confidentiality requirements create a barrier to testing for HIV in combination with testing for other conditions as there are different consent procedures for HIV tests and other tests; and
  • They prevent healthcare professionals from being informed of patients’ HIV status where they are not providing treatment directly related to the patient’s HIV condition, but it would assist in providing care to know about the patient’s status (given that HIV and ART treatment have a range of health implications).

The policy of de-identifying HIV/AIDs notifications was first developed in the 1980s, at a time when most HIV infections occurred in gay men and there was considerable stigma and discrimination against the gay community and those living with HIV/AIDs. At that time, no effective treatment options were available for HIV/AIDs, making it a terminal condition. Many activists, clinicians, and community organizations were strongly against notification, and confidential notification provisions were adopted to encourage at-risk individuals to access HIV testing and care without fear of recrimination or discrimination.

The situation has changed significantly since then. Anti-retroviral therapy (ART) has made HIV a manageable, chronic condition, and has demonstrable benefits in preventing onwards transmission. Community attitudes towards the gay community and people living with HIV have changed considerably over the past 30 years, assisted by the introduction of laws that address discrimination and privacy concerns.

The discussion paper lists a number of benefits that would flow from rolling back HIV-specific confidentiality requirements:

  • Named notification would enable more accurate epidemiological data on HIV to be collected, for example, by allowing for better linking of HIV notifications with notifications of other conditions, which would assist with tracking and managing HIV co-infections; and
  • It would potentially allow better service provision and care of people living with HIV: one outcome would be that it would enable public health officers to follow up with HIV positive patients directly; liaise with clinicians; and refer people living with HIV to the relevant health services.

However, there is significant disagreement between NSW Health and HIV activists over whether named reporting would improve epidemiological data and access to care. Advocates argue that while named reporting may provide some benefit, this would be outweighed by its impact on privacy, testing, surveillance, and treatment.

HIV remains heavily stigmatized, and many people living with HIV continue to experience discrimination. These concerns are particularly relevant given that NSW criminalizes individuals with HIV (and other STIs) who fail to disclose their condition to their sexual partners.

Named reporting may deter people from being tested for HIV, particularly people from culturally and linguistically diverse backgrounds, recent migrants, highly sexually active men with multiple STIs, sex workers, and non-gay identifying men who have sex with men. People diagnosed with HIV may also be less willing to report sensitive personal information (e.g., injecting drug use), particularly if it could be used for law enforcement purposes. This would undermine the effective care of people living with HIV, as well as the quality of population-level data.

Advocates recognize that making information about a person’s HIV status, co-morbidities, and treatment regimen more widely available in clinical settings could improve care outcomes. However, they say that there are not enough examples of non-disclosure causing adverse effects to warrant the proposed changed, and the amendment would undermine the right of people living with HIV to disclose their HIV status to medical and healthcare workers at a time of their choosing.

Winding back “HIV exceptionalism”?

Writing on the legal environment of sexual health care practice, Roger Magnusson describes HIV as an “exceptional STI,” with unique legislation regulating counselling, diagnosis, and reporting of HIV. The central concerns of this legislation are the provision of supportive treatment and maintaining patient confidentiality.

Professor Magnusson describes how some countries are now winding back HIV exceptionalism, for example, in the US, CDC guidelines now recommend opt-out screening for all patients, i.e., patients are notified that screening will take place unless they decline consent. Some states, such as California, have adopted these recommendations, and while anonymous testing is still offered in many states, named HIV reporting is now the norm.

Notification of HIV/AIDs is a contentious subject, engaging issues around rights to privacy and autonomy, as well as on the role notification plays in data collection, testing, and treating. Many jurisdictions are streamlining the legal treatment of HIV testing with that of other infectious diseases; the question is whether NSW will – or should – do the same.