Public health law in the USA: What can Australia learn?

SEMINAR ANNOUNCEMENT: 

Public Health Law and Health Leadership in the United States: What can Australia learn?

Thursday 19 July, 6.00-7.30pm, Sydney Law School

In 2016, life expectancy at birth in the United States fell for the second year in a row.  Since his inauguration in 2017, President Trump and his administration have taken a number of actions that arguably weaken America’s public health infrastructure.

At the same time, the Unites States remains one of the world’s great innovators. With 52 States and more than 89,000 local and city governments, the United States frequently functions as a social laboratory for social policies, and public health laws and practices. While constrained in some areas by its constitutional design, the United States remains a leader: its influence and innovations in public health law cannot be ignored.

What can Australia learn from recent American experience with public health law and regulation?  What are the good ideas?  What should be avoided?  How can Australian jurisdictions adapt the best American innovations and create an enabling legal and political environment for public health and wellbeing?

This seminar features presentations reviewing public health law and leadership in the United States, with particular reference to: communicable diseases and pandemic preparedness, non-communicable diseases, health care, injuries and global health leadership.

This seminar is co-hosted by the United States Studies Centre at the University of Sydney, and Sydney Law School.

This event features a keynote presentation by Professor Lawrence Gostin, who is the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University Law School, Washington DC, and Faculty Director of the O’Neill Institute for National and Global Health Law. Prof. Gostin is also the Director of the WHO Collaborating Center on National and Global Health Law.

For further information on this event, further speaker details, and to register for this event, click here.

Trump: the war on breastfeeding

The New York Times reports that US officials threatened to unleash trade sanctions and withdraw military aid from Ecuador unless it withdraw a resolution at May’s World Health Assembly calling on governments to “protect, promote and support breast-feeding”.

The article is worth reading in its entirety.

As the father of a currently breastfeeding infant, I find this kind of behaviour utterly repellent.

There are echoes of Right to Health language (respect, protect, fulfil) in the resolution which might have displeased the Americans, but the real motivator was American support for large corporate manufacturers of breast-milk substitutes.

(Like Chicago-based Abbott Laboratories.)

Ecuador backed off from the offending resolution, as did “at least a dozen other countries, most of them poor nations in Africa and Latin America”.

Then Russia stepped in, and the intimidation apparently stopped.

“We’re not trying to be a hero here”, said a Russian delegate to the World Health Assembly, “but we feel that it is wrong when a big country tries to push around some very small countries, especially on an issue that is really important for the rest of the world.”

Plenty of ironies here.  But they have a point.

According to the New York Times report, a Department of Health and Human Services spokesperson said: “The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children.  We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.”

Well gosh, that ought to sort out the doubters.

The Lancet reports that scaling up breast-feeding to near universal levels could avoid 823,000 deaths of children under 5 each year, and 20,000 maternal deaths from breast cancer.

Breastfeeding protects both mother and child, and it’s free, which is important if you’re poor.

Yet for billion dollar formula companies, the temptation to monetise the act of feeding by targeting young mothers, is just irresistible.

Read the Guardian’s investigation into Nestle’s marketing practices flogging formula to poor women in central Manila here.  Then weep.

Here is the resolution that eventually passed in the World Health Assembly, with American support.

Amongst other things, it requests the WHO Director-General to provide, upon request, “technical support to Member States to establish, review and implement national laws, policies and programmes to support infant and young child feeding”.

However, US hostility scuttled language that would have called on WHO to provide “technical support to member states seeking to halt “inappropriate promotion of foods for infants and young children.”

“Inappropriate” in this context would refer to the promotion of foods in contravention of the International Code of Conduct of Breast-milk Substitutes.

The Code prohibits the advertising of infant formula and other breast-milk substitutes to the general public, to pregnant women and mothers, and to health workers who are concerned with infant and maternal nutrition.  It also prohibits the giving of samples and other incentives for purchase. Governments are urged to implement the Code through national legislation, regulations or other suitable measures.

In addition, the Code states that infant formula should contain a clear statement of the superiority of breastfeeding, and a statement that the product should only be used following advice from a health worker. The container and labels should not contain pictures of infants, or include pictures or text that “may idealize the use of infant formula”.

Appropriately, the resolution does urge Member States (of the World Health Organisation) to strengthen national initiatives to implement the Code.

However, when you put it all together, it appears the Trump administration does not want sovereign countries receiving technical support from WHO about how best to frame their laws and policies to prevent predatory marketing practices that breach the Code.

It’s the Trump administration’s war on breastfeeding women.

Click here for information about the Australian Breastfeeding Association.

ANNOUNCEMENT: Sydney Law School and the United States Studies Centre at the University of Sydney are co-hosting an evening seminar entitled “Public health law and health leadership in the United States: What can Australia learn?” on 19 July 2018, 6.00-7.30pmClick here for the brochure and further details.  A separate post will follow about this event.

If you’re interested to learn more about law and non-communicable diseases, Sydney Law School is offering a Masters unit, “Law, Business & Healthy Lifestyles” in the coming semester.  Click here for more information.

What becomes of a country that cannot protect its young?

 

March for our lives, Washington DC, 24 March 2018

 

It’s too early to say if the grassroots social movement initiated by students who survived the gun massacre at Stoneman Douglas High School in Parkland, Florida will be successful in nudging America’s gun laws in the direction of rationality and evidence.

After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.

On March 24, students and gun control advocates took to the streets of Washington DC in a “March for Our Lives”.

They’re trying to start a movement.  You can join them.

“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.

Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”

In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law.  You can read about the march on his twitter account here.

He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”

He’s right.  This is true of gun control, tobacco control, and much else in public health.

Is there constitutional space for rational, evidence-based gun control laws in the United States?

It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.

This is not so, argues Professor Gostin in a recent paper published in the Journal of the American Medical Association.  For additional resources, click here, here, and here.

In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one.  Rational, evidence-based measures to reduce firearms deaths in the United States could include:

  • mandating a higher minimum purchasing age for firearms
  • prohibiting dangerous individuals from purchasing or owning firearms
  • requiring safe storage
  • banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
  • banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).

Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018.  (However, Rick Santorum suggests they would be better served taking CPR classes)

 

What makes bottom-up change happen?

This is a neglected but vitally important questions for public health lawyers.

Will the anger and conviction that fuels the “March for our lives” movement endure?  Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?

Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change.  And then nothing happens.

More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.

Jeremy Shiffman has written about why some global health issues attract attention while others languish: his scholarship is helpful in also analysing national public health issues.

For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance.  The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.

From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.

On this view, global health (and the same could be said of national public health priorities) is a competitive – and brutal – process of portraying and communicating severity, neglect, tractability and benefit in ways that appeal to political leaders’ social values and concepts of reality”.

Yet increasingly, reality itself is no longer a shared experience.  Gun control advocates and gun enthusiasts might as well live in different universes.  Their sources of information are completely unrelated; the things they find persuasive utterly different.

Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”

The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.

Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.

A couple of examples.  Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.

Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”

All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.

Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.

What becomes of a country that cannot – or will not – protect its young?

Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.

That’s bad news for freedom, and bad news for America.

 

Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’.  Sydneyhealthlaw.com will advertise this event in due course.  Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here.  For more information on Sydney Law School’s Master of Health Law, click here and here.

A Foundation for a smoke-free world…funded by a cigarette multinational: more smoke and mirrors?

The Swiss like butter on both sides of their toast.

Headquartered in Lausanne, half an hour’s train ride from the World Health Organisation in Geneva, you’ll find the headquarters of the world’s most profitable tobacco company, Philip Morris International (PMI).

Makers of Marlboro and other global brands.

A few years ago, at the end of a very long interview, held in the PMI Boardroom, I asked a senior PMI executive what he would most like to tell the public health community.

This gentleman, although friendly and accommodating, had smoked all over me for three solid hours.

He said:

“I would like the public health community to try to spend some time listening to what Philip Morris has to say and to see whether or not we can reach some kind of agreement… I think if we continue to fight as opposed to try to reach an accord, we’re losing an opportunity, and I think that Philip Morris has a lot to offer that can help shape and develop regulation, but the public health community has [got] to get beyond its pre-conceived notion that anything that Philip Morris or any other tobacco company proposes is immediately suspect and inappropriate.  That would be my number one concern…”

The wish of this PMI executive was the same as that of every other tobacco executive I spoke to: he wanted governments and public health advocates to listen to his company.  He wanted to partner with the public health community, he wanted a role in shaping policy and regulation.  He wanted “the war” to end.

Philip Morris International may be a step closer to this aim with the launch of a new entity called the Foundation for a smoke-free World.

 

Foundation for a Smoke-Free World

Founded by Derek Yach, the former head of the WHO’s Tobacco Free Initiative, the Foundation was launched with a promise of US$80 million funding per year for 12 years from PMI.

The aims of the Foundation are to “advance smoking cessation and harm-reduction science and technology”.  These aims appear suitably aligned with PMI’s strategy of eventually replacing cigarettes with smoke-free products, and in order to get there, lobbying governments to give preferential treatment to non-combustible recreational nicotine products.

PMI’s website states that: “we don’t agree that banning cigarettes makes sense for smokers or for society at large.”

But speaking of the success of IQOS (a heated tobacco product manufactured by PMI) in South Korea and Japan, PMI CEO André Calantzopoulos suggests that in five years, as users of heated devices outnumber smokers, “That is when we could start talking to governments about phasing out combustible cigarettes entirely.

They’ve taken their time sharing it with us, but according to Philip Morris, there is an answer to the tobacco epidemic.  It seems you won’t find it in the World Health Organisation’s Framework Convention on Tobacco Control, nor in generations of experience with evidence-based tobacco control laws and policies.

Rather, the answer lies elsewhere:

Individual risk reduction X consumer switching = population harm reduction.

In particular, PMI wants smokers to start using IQOS, the first of four smoke-free products it is (apparently) building its future on.

Of course, PMI needs governments to play their part as well.

We are confident that the right mix of government leadership and commercial initiative will dramatically accelerate efforts to reduce the health burden of smoking.

Which is why, I suspect, substantial funding to the Foundation for a Smoke-free World makes sense at this time.

 

Independent?

The centrepiece of the Foundation’s claim to independence is the article on scientific integrity in its by-laws, which states:

“The goal of the Corporation is to promote and support significant scientific research that advances the field of tobacco harm reduction and reduces the public health burden of smoking-related diseases.  The Corporation shall not take into account the potential impact of that research on the image of the tobacco industry or any other industry or commercial entity”.

That sounds good, doesn’t it, if they can manage it?

The problem is that the funding for this Foundation would appear to depend on annual or periodic renewal by a tobacco multinational.

And that is howlingly significant.

The existence of the Foundation, certainly its size and clout, will depend on how the activities and results of the Foundation appeal to PMI’s board.

That may not be such a risk if you’re married to a vision of tobacco harm reduction that involves promoting the recreational nicotine products that PMI wants to flog around the world.

According to PMI CEO André Calantzopoulos, “The Foundation is a welcome driver of change, at a time when a smoke-free future is clearly on the horizon. We will welcome its recommendations to accelerate smoker adoption of less harmful alternatives.”

No doubt.

But if the Foundation, in all its independence, were to fail to effectively prosecute the case for harm reduction in a form that benefits PMI’s business case, surely the Board would re-consider its investment.  It would be mad not to.

 

No accident

The Foundation for a Smoke-free World has appeared at a time of unique risk for makers of e-cigarettes and heated tobacco products.

I would expect that part of the Foundation’s work, pursuant to its harm reduction agenda, would be to encourage governments to make e-cigarettes more available (in jurisdictions, like Australia, where they are banned), perhaps to tax them at a lower rate, and certainly to reverse the tendency seen in jurisdictions like California to apply smoke-free laws and minimum purchasing age restrictions equally to both cigarettes and non-combustible nicotine products. (See references to California’s legislation in a previous post).

In October, New York State became the latest U.S. state to ban use of e-cigarettes in restaurants, bars and indoor public places including workplaces.  (See here for the text of the legislation).

Addressing this dangerous tendency, and promoting a regulatory environment that allows recreational nicotine products to thrive, is best framed in terms of “saving lives”.

Australia’s Health Minister, Greg Hunt MP, has stated that he will not lift the ban on e-cigarettes: “not on my watch”.

For that, I believe, he deserves credit.

We can expect a gush of Foundation-funded research, ultimately paid for by Philip Morris, arguing that e-cigarettes and heated tobacco products save lives.

Rather than focusing on implementing the evidence-based controls in the Framework Convention on Tobacco Control, governments will be encouraged to switch strategy towards tobacco harm reduction, which translates into relaxing controls on the products that make PMI shareholders rich.

The World Health Organisation claims the Foundation has conflicts of interest and states: “WHO will not partner with the Foundation. Governments should not partner with the Foundation and the public health community should follow this lead.”

In the end, whatever the Foundation and its leaders think they are doing, given the scale of PMI’s investment, the  Foundation will perform a massively important public relations function for its economic parent.

These PR functions are important, given that in the here and now, PMI remains firmly in the cigarette business, exploiting markets around the world where tobacco control laws remain weak (see eg Kalra et al in Reuters).

 

Reaction to the Foundation for a Smoke-free World

To say that the launch of the Foundation has been taken badly by NGOs and global leaders in tobacco control is something of an under-statement.

Distinguished Professor of Tobacco Control at UC San Francisco, Stanton Glantz, writes that “Derek Yach’s journey to the dark side is now complete”, pointing out that PMI’s funding of the Foundation represents “about .1% of PMI’s revenues and 1% of its profits”.

Ruth Malone, Simon Chapman and colleagues write:

“This ‘new’ initiative is just more of the same lipstick on the industry pig, but in a way it’s far worse this time: by using a formerly high profile WHO leader as a spokesperson, PMI can also accelerate its longstanding ambition to splinter the tobacco control movement”.

WHO points out that if PMI supported a smoke-free world it would support evidence-based tobacco control policies that help people quit smoking, including tobacco taxes, graphic disease warning labels, and comprehensive bans on tobacco advertising, promotion and sponsorship.

These are building blocks of successful tobacco control.  They work.

The reality, in jurisdictions around the world, is that PMI opposes these measures.

Outside of rich western markets, where health considerations predominate, it’s business as usual for Philip Morris International and for Marlboro, their star brand.

(Marlboro advertising in Jakarta, Indonesia; the photo at the top, from the island of Lombok, is typical of advertising by Philip Morris International throughout the archipelego)

 

“Party like it’s payday!” urges Diageo Australia (before your welfare cheque runs out?)

It looks like Diageo Australia is at it again.

No, this time they’re not advertising Bundy Rum to a 3 year old.

Instead, they’re urging Western Australians to “Party like it’s payday” – hoisting ads for Captain Morgan Original Spiced Gold Rum around the Perth suburbs, including right outside a Centrelink office.

Whatever were they thinking?  Party like it’s payday – before your welfare cheque runs out?

Here’s Hannah Pierce, Research Officer at the McCusker Centre for Action on Alcohol and Youth, Executive Officer of the Alcohol Advertising Review Board, and a Master of Health Law candidate at Sydney Law School.

Hannah’s blogpost is re-published with permission from Drink Tank.

Just when you thought the marketing techniques of alcohol companies couldn’t shock you any further, along comes an ad campaign that takes things to a whole new low.

Last month the Alcohol Advertising Review Board received a complaint about outdoor ads for Captain Morgan Original Spiced Gold Rum with the very prominent message, “Party like it’s payday”.

Understandably, the complainant was concerned about the tagline linking drinking and payday:

It makes me think of the people who spend their pay on alcohol and then don’t have much money left over for essentials like food and rent etc. There has been quite a lot of talk in the media of cashless welfare cards which can’t be used on alcohol or gambling so people use their money on food, clothing and bills. This is obviously a big problem in Australia, so it seems outrageous to have a very public alcohol advertising campaign that is actually promoting partying and buying alcohol around the payday theme.”

When notified of the complaint, Diageo Australia, the owner of Captain Morgan rum, declined to participate in the AARB process and confirmed their support for the self-regulatory system.

Given the sensitive issues the ad could raise, you’d think they’d be pretty careful where they put the ad, right?

Wrong.

The AARB received a second complaint about the ad, this time placed directly outside a Centrelink office on a Telstra payphone. The complainant said:

The sign says “Party like its Payday” conveniently out the front of Centrelink where people go to get their fortnightly welfare payment. This is highly insensitive considering Australia’s alcohol issues are highly prevalent amount those on welfare benefits […]”

Considering the substantial concerns about alcohol-related harms in Australia, including alcohol use among young people and vulnerable populations who are likely to visit Centrelink, the placement of this ad is blatantly inappropriate.

These complaints were reviewed and upheld by the AARB Panel. The Panel believed the tagline was irresponsible and encouraged excessive drinking, and that the ad attempts to establish that drinking Captain Morgan should take precedence over other activities, such as paying for accommodation and food.

The Alcohol Advertising Guidelines of the Outdoor Media Association (OMA), the peak national industry body that represents most of Australia’s outdoor media companies, note that its members “only accept copy for alcohol advertising that has been approved for display through the Alcohol Advertising Pre-vetting System”.

Evidently, the content of the Captain Morgan ad was actually approved by the self-regulatory system, highlighting serious concerns about its ability to ensure alcohol advertising is socially responsible.

In addition, the OMA has only one guideline relating to the placement of alcohol ads – that they cannot be placed within 150 metres of a school gate. Everywhere else is open slather.

So it appears neither the content of the “Party like it’s payday” rum ad nor its placement outside a Centrelink breach any codes in the self-regulatory system.

Despite this, the AARB has written to the OMA and Advertising Standards Bureau to seek their position on whether the content and placement of the Captain Morgan ad is consistent with the OMA’s commitment to “the responsible advertising of alcoholic beverages”.

The AARB has also written to Telstra to highlight our concerns about outdoor alcohol advertising and ask that they consider phasing out alcohol advertising on Telstra property, including pay phones.

The AARB was developed by the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA in response to concerns about the effectiveness of alcohol advertising self-regulation in Australia.

This Captain Morgan ad is yet another example that highlights the need for this alternative complaint review system to support action on alcohol ads that the self-regulatory system deems acceptable.

If you see an alcohol ad that concerns you, we encourage you to submit a complaint to the AARB. Every complaint the AARB receives is further evidence of the need for strong, independent, legislated controls on alcohol advertising in Australia. Visit www.alcoholadreview.com.au and follow @AlcoholAdReview on Twitter to find out more.

Republished with permission from Drinktank.

California raises the minimum purchase age for cigarettes and e-cigarettes

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Last week was a big week for those who think the law should have a role in helping to reduce the 6 million deaths caused each year by tobacco.

First, tobacco taxes

In 2013, the Rudd government announced a 12.5% increase in the tobacco excise to take effect over 4 years:  1 Dec 2013; 1 Sep 2014; 1 Sep 2015; 1 Sep 2016.

Scott Morrison’s 2016 budget will continue this increase for a further 4 years (2017-2020), taking the price of a pack of 25 cigarettes to around $41 in 2020.

These excise tax increases will be in addition to the usual, bi-annual indexation of excise in accordance with average weekly earnings.

As recognised by the WHO Framework Convention on Tobacco Control, which Australia has signed, tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people.

Secondly, more wins on tobacco plain packaging

The European Court of Justice has upheld the right of Member States of the European Union to pass plain tobacco packaging laws that exceed the requirements for the standardisation of tobacco packaging contained in the European tobacco products directive.

The Directive includes a requirement for mandatory health warnings, comprising text and colour photographs, covering 65% of the back and front of tobacco packages (Art. 10.1).

Article 24.2 of the Directive preserves the right of member states to introduce further requirements for the standardisation of tobacco packaging “where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive”.

These further measures must be proportionate, and must not be a disguised form of trade restriction.

The ruling of the Court paves the way for the UK’s tobacco plain packaging legislation (the Standardised Packaging of Tobacco Products Regulations 2015 to become mandatory for all tobacco products on 21 May 2017.

Following Australia’s Tobacco Plain Packaging Act 2011 (Cth), plain tobacco packaging has become an export industry, with Ireland also adopting legislation in 2015.

California raises the minimum purchase age for tobacco

But perhaps the most interesting development is the creeping advancement of higher tobacco purchase laws for tobacco within the United States.

On 4 May 2016, California Governor Jerry Brown signed 2 Bills into law that confirm California’s leadership in tobacco control.

Senate Bill No 7 prohibits the sale of tobacco products in California to persons younger than 21 years.

The Bill includes an anti-pre-emption provision giving freedom to local governments to raise the minimum purchasing age even higher.

With a republican-controlled Congress hostile to public health measures, it has fallen to local and city governments, and to States, to innovate and to protect the health of their populations.

California’s action follows the lead of Hawaii and over 125 local and city governments that have passed legislation to raise the minimum purchase age for tobacco to 21.  This trend is likely to continue, both in the United States, and possibly elsewhere.

The California Bill contains an exception for Military personnel in active duty who are aged over 18 but under 21 years.

This is not the first time U.S. legislatures have bent the rules to facilitate smoking by members of the US armed services.

California Senate Bill No. 5, also signed into law, expands the definition of the term “tobacco products” in the Business and Professions Code to include e-cigarettes, and requires retailers to pay a licence fee to sell e-cigarettes.

It requires all cartridges for e-cigarettes to be in child-resistant packaging;

It also extends the smoke-free controls applicable to cigarettes in California, to e-cigarettes – a regrettable omission in the Public Health (Tobacco) Amendment (E-cigarettes) Act 2015 (NSW).

The California Bill also prohibits selling or advertising or furnishing e-cigarettes to persons younger than 21 years.

Time to raise the minimum purchase age for tobacco in NSW?

Raising the minimum purchasing age for tobacco is a sensible next step towards a tobacco-free generation that is healthier and more productive.

Higher minimum purchasing age laws make sense, since few smokers begin smoking or become addicted to nicotine beyond the vulnerable mid to late teens and early twenties.

A 2013 study of smoking initiation rates in New Zealand confirmed that while initiation after age 24 is rare, the highest initiation rates occur among those aged 15-21 years. Over a four-year period, the rate of smoking initiation for those aged 15-17, 18-19, and 20-24 was 14.2%, 7.0%, and 3.1%, respectively.

An expert Committee of the Institute of Medicine concluded that raising the minimum purchasing age would substantially reduce smoking prevalence and smoking-related mortality, given the numerous life transitions young adults experience between 18 and 20 years.

It could also help to improve foetal, maternal and infant health, by reducing the numbers of young parents smoking.

The Tasmanian Government has released a 5-year strategic plan for health that includes raising the minimum legal smoking age to 21 or 25 as an option for consideration.

Such laws could help to reduce health inequalities.  For example, according to Tasmania’s Council of Obstetric and Paediatric Mortality and Morbidity, more than 33% of Tasmanian teenage pregnant women are smokers (2013 figures).

Raising the minimum purchase age for tobacco would not be costly to implement, although resources should be budgeted for its enforcement, and this includes close monitoring and evaluation of its net effects.

Think about it.  Will there be any parents, including smoking parents, who wish their child had been able to buy smokes on their 18th birthday?

Conversely, how many 30 year olds – facing the economic challenges of life, including breaking into the property market – will be thankful they missed the bullet of nicotine addiction and aren’t now making generous weekly donations to Australia’s tobacco giants?

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.  For further details, click here, and here.

A short review of the NSW Government’s “one-punch” alcohol control reforms

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In February 2016, former High Court Justice the Hon. Ian Callinan AC QC was appointed by the NSW Government to review the effectiveness of the “lockouts” and the 3am liquor sales cessation period on the Sydney CBD entertainment precinct, the Kings Cross precinct, and potential displacement areas.

Mr Callinan will also consider the impact of the 10pm closing time for bottleshops, with a particular focus on rural and remote communities.

These are perhaps the best known “one punch” alcohol controls introduced by former NSW Premier Barry O’Farrell’s government following a number of highly-publicised assaults by alcohol-affected persons on Sydney streets.

 

Why did the NSW government act?

In July 2012, 18 year old Thomas Kelly was walking with his girlfriend down Victoria Street, Kings Cross, when he was punched in the face.  It was an unprovoked attack.  He fell back, cracking his skull on the pavement.

His life support system was turned off two days later.

Ralph Kelly, Thomas’ father, told the media his son’s life had been finally taking off”, after difficult times at school, with the good news of a cadetship with a Sydney accounting firm.

The young man who threw the punch, Kieran Loveridge, was sentenced to 4 years for manslaughter.

The Crown appealed on the grounds that the sentence was manifestly inadequate.  The NSW Court of Criminal Appeal agreed, extending the minimum sentence to ten years.

In December 2014, Loveridge’s application for leave to appeal to the High Court was refused.

Thomas Kelly was not an isolated incident.

For example, Daniel Christie hit the pavement just metres from where Thomas Kelly fell, after being fatally punched on New Year’s Eve 2013.

Fady Taiba spent 19 days in a coma after refusing an intoxicated man entry to Bar 333 in September 2013.

34-year old Brazilian Lucio Stein Rodrigues was killed by a “ferocious” punch outside a pub in the CBD in November 2013.

Between 2000 and December 2013, 90 people were killed in this way, by a single blow to the head.

 

Preventive alcohol controls prior to the “one punch” alcohol laws

According to John Green, from the NSW Branch of the Australian Hotels Association, “It’s not good enough anymore to use hotels as whipping posts…We need to target those thugs in the community who think it is OK to pre-fuel and hit people.”

But how exactly do you “target thugs”, before – rather than after – they become violent, without burdening the service of alcohol?

Three “preventive” controls are worth mentioning.  These controls were already in place when Thomas Kelly, Daniel Christie and others like them hit the pavement.

Firstly, s. 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) authorises police to give “move on” orders to people who are drunk in public.

In 2011, Parliament introduced the offence in s 9 of the Summary Offences Act 1988 (NSW).  This is an offence for continuing intoxicated and disorderly behaviour, following a section 198 order.

According to the NSW Ombudsman, over a 1 year period (October 2011-September 2012), NSW police issued 110,949 formal orders to intoxicated persons. 33,580 were orders issued under s. 198.

Secondly, under s 206 of the Law Enforcement (Powers and Responsibilities) Act, police can detain an intoxicated person who is behaving in a disorderly manner, or in need of physical protection due to their intoxication.

Finally, the NSW Government had already introduced “three strikes” legislation, which imposes “strikes” when a licensee or manager commits one of a number of serious offences in relation to an alcohol licence.

After a third prescribed offence, the Independent Liquor and Gaming Authority can decide whether to impose a third strike, and thereafter to cancel, suspend or impose additional conditions on a liquor licencee’s license.

Preventive laws have taken different forms since 2014.

 

The NSW Government’s “one punch” alcohol reforms

Five reforms are worth noting; for a broader discussion of the government’s response, see here.

Firstly, the Government introduced sections 25A-25B into the Crimes Act 1900 (NSW).  Section 25A is a new statutory offence for an assault causing death.  Section 25B imposes a minimum mandatory custodial sentence of 8 years for this offence if the accused had a blood alcohol concentration of 0.15 (3 times the legal driving limit).

Amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (s. 138G) authorise police to detain and require a person to undergo breath testing (within 2 hours of the alleged commission of this offence), or to give a blood or urine sample at a hospital, within 4 hours of the alleged commission of this offence.

In 2014, a Bill (the Crimes Amendment (Intoxication) Bill 2014) was introduced to create a number of additional aggravated intoxication offences, with a minimum period of imprisonment for each offence.  However, it was never passed.

Secondly, changes to the Liquor Act 2007 and its regulations introduced the idea that a geographic area can be declared to be a “prescribed precinct” (s 116C).  The Act then sets out the kinds of restrictions the regulations can impose on premises within a “prescribed precinct” (s. 116I).  These may include:

  • Restricting use of glasses or breakable containers;
  • Prohibiting or restricting sale of certain kinds of liquor;
  • Prohibiting patrons from entering licensed premises at certain times (ie “lock outs”);
  • Requiring incident registers to be kept;
  • Requiring licensees to contribute to the costs of measures to prevent violence and alcohol-related harm in the precinct.

Additionally, the Liquor Act 2007 and Liquor Regulation 2008 set out a number of specific controls that apply to the Kings Cross Precinct, and the Sydney Entertainment Precinct, respectively: these take effect as licence conditions applicable to licencees within each precinct.

The most significant controls that apply to the new CBD precinct are the “lock out” and liquor sales cessation periods.  These are discussed separately below.

Thirdly, the Liquor Act authorises a police officer to issue a temporary banning order that prohibits a person from entering or remaining on specified licensed premises within a prescribed precinct for up to 48 hours (s. 116F).

Fourthly, the Act provides the basis for payment of risk-based licence fees by liquor licensees.  Fees are set by taking into account the location of the premises, its trading hours, patron capacity, offences committed, and compliance with licence requirements (s. 58A).

Click here for an overview.

The final control included in this short review is the 10pm closing time for bottle shops and other take-away retail liquor establishments: s 12(1C) of the Act.  This was discussed in a previous post.

 

Lock out and liquor sales cessation controls

There are 7 categories of liquor licence in NSW.  Taking the Sydney CBD precinct as an example, under ss 53Y-53Z of the Regulations, the lock out and liquor sales cessation restrictions apply specifically to hotels, clubs, high-risk venues (including large hotels which operate after midnight), and premises to which a “level 2” licence applies (due to previous incidents of violence).

The “lock out period” is defined in s 3 of the Regulations to mean after 1.30am until the beginning of the standard trading period the following day.  During a lock out period, new patrons may not enter the premises, although patrons can remain on the premises, and leave at any time.

During a liquor sales cessation period, hotels, clubs and high risk venues must not sell liquor.  The liquor sales cessation period” is defined to mean between 3am until the beginning of the following day’s trading period.

Additional controls apply to after midnight trading (the general late trading period) in respect of declared venues with a history of alcohol-related violence.  For example, glasses must be removed from patrons and drinks cannot be sold in glasses during the late (after midnight) period.

During the general late trading period, venues within the Sydney CBD Entertainment Precinct are also prohibited from selling certain kinds of alcoholic drinks (see Regs s. 53ZB).  These include:

  • Shots (any drink designed to be consumed rapidly);
  • drinks containing more than 50% liquor;
  • any ready to drink beverage containing more than 5% alcohol by volume, and
  • drinks containing more than 30ml spirits.

However, these restrictions do not apply to cocktails.

During the late general trading period, no more than 4 alcoholic drinks, or the contents of one bottle of wine, may be served to the same patron.

This requires licencees to keep tally of the number of drinks sold to any one patron.

Under s 53ZE, licencees of premises within the CBD Precinct must keep a “round the clock” incident register.  Where a violent incident does occur, the licencee must preserve and keep the area where the incident occurred intact (s 53ZF).

S 53ZG also requires licencees to exclude entry to people wearing clothing or symbols of a number of motorcycle clubs such as the Bandidos, Gypsy Jokers, or Rebels.

 

Are NSW’s one-punch laws working?

One man who has seen it all is Dr Gordian Fulde, head of emergency at Sydney’s St Vincent’s Hospital, Darlinghurst, who was named Senior Australian of the year in 2016

Decades ago, nobody would punch a nurse”, he says.  But these days spitting, punching and kicking are common occurrences.

Dr Fulde is the lead author of a recent paper in the Medical Journal of Australia comparing emergency presentations to his hospital’s emergency department before and after the one-punch reforms.   The study confirms that presentations for alcohol-related serious injuries are much higher during the “high alcohol time” from 6pm Friday to 6am Sunday.

This study also found that after the introduction of the one-punch laws in 2014, there was a 25% reduction in patients presenting with serious alcohol-related injuries during the high alcohol period.  The authors note: “The reduction was most marked in the period after midnight, which corresponds with the main thrust of the changed regulations”.

According to a study by the NSW Bureau of Crime Statistics and Research, the one-punch reforms were associated with an immediate 32% reduction in the number of reported assaults in Kings Cross, and a 26% reduction in assaults in the Sydney CBD.

These reductions suggest that changes to alcohol trading hours – including lock-outs, liquor sales cessation periods, and bans on late-night take-away liquor sales – are part of an effective package for reducing alcohol-related violence.

However, as with tobacco controls, it may be difficult to definitively quantify the specific contribution of each measure and to link it to reductions in violent assaults.  It is the overall impact of the package of controls that speaks.

Recently, a grassroots organisation called “Keep Sydney Open” have opened a petition to the Premier, Mike Baird, to remove the lockout and last drinks laws.

What is their solution to unprovoked attacks by alcohol-affected young men who are angry at the world?

“We demand smarter solutions — a holistic and lateral approach to preventing assaults which examines transport, CCTV, tougher sentencing, density and diversity of licensed premises, venue management, culture as a placating tool and the tendency towards violence among certain groups of individuals.”

CCTV, tougher sentencing, freezes on new licences?  These are not new ideas, as a glance at the Act and Regulations illustrates.

“Culture as a placating tool”?  What do they have in mind here?

The uncomfortable truth is that Australia’s alcohol culture is partly created by the easy availability of alcohol, the ubiquitous nature of alcohol advertising, and the relative affordability of alcohol (availability, advertising, and price).

Lawmakers may find it more difficult than they would hope to meet community expectations about safety from unprovoked, alcohol-fuelled assaults without relying on laws that burden the business of service of alcohol, and impact indirectly on levels of alcohol consumption.

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.  And click here for more information about Sydney Law School’s health law team.