Vaping: the madness of the British?

My google search engine thinks Public Health England (PHE) is a vaping organisation.

“Vaping organisation UK”.  You can try it yourself.

E-cigarettes lie at the centre of PHE’s tobacco control strategy, probably drawing attention and commitment away from alternative strategies for reducing smoking rates.

In September 2017, PHE encouraged smokers to “stop smoking with an e-cigarette”.

E-cigarette promotion also featured significantly in the 2019 NHS “Stoptober” campaign.  “Try an e-cigarette”, urges Public Health England.

This page tells you all you need to know to get started.

Public Health England continues to defend its conclusion, based on the opinion of twelve experts, that “vaping is at least 95% less harmful than smoking” and that “more smokers [should be] encouraged to make the switch from smoking to vaping”.

(A commissioned report that repeats assurances about “95% safer” notes a number of significant limitations, including that “some of the studies [relied on] were tobacco industry funded”). See here, p 171.


Politicians are getting the message too.

The Independent British Vape Trade Association re-tweets Conservative Party MP Gareth Johnson who says:

“For the first time in my life, there is something that genuinely can help people to get off tobacco …the more people #vape, the fewer people smoke. We need to highlight that and celebrate it, and the Government should take that forward.”

How, exactly?

Through preferential treatment for the liquid nicotine industry, that’s how.  Bill Grant MP, a member of the industry-friendly Committee that inquired into e-cigarettes in 2018, tells Hansard:

“There should be a shift to a more risk-proportionate regulatory environment; where regulations, advertising rules and tax duties reflect the evidence of the relative harms of the various e-cigarette and tobacco products available.”

Pretty much what the vaping industry itself argued, when it fronted the House of Commons Committee.

What about winding back smoke-free laws, so that people with nicotine addiction can vape wherever and whenever they please?

In a document called “Use of e-cigarettes in public places and workplaces: advice to inform evidence-based policy making”, PHE urges organisations to exempt vaping from their smokefree policies.

According to PHE, “It is never acceptable to require vapers to share the same outdoor space with smokers”.

“[A] more enabling approach may be appropriate in relation to vaping to make it an easier choice than smoking. In particular, vapers should not be required to use the same space as smokers, as this could undermine their ability to quit smoking and stay smokefree” (p 9).

And since vapers require more frequent top-ups to maintain their “desired blood plasma nicotine level”, these differences should also be taken into account.


Two camps

Global tobacco control is now split into two camps, divided – irrevocably – by ideology.

Boiled down, traditional tobacco control advocates believe that the best way to deal with the tobacco snake is to cut off its head: to support smokers to quit smoking forever by conquering nicotine addiction.

Deal with addiction, and you’ll eliminate the ability of the tobacco industry to maim and kill – not to mention suck a lifetime’s wealth out of their predominantly socio-economically disadvantaged customers.

Tobacco harm reductionists, by contrast, have all but given up encouraging nicotine abstinence and seem largely focused on encouraging smokers to migrate to recreational nicotine products that will (hopefully) cause less damage to health over the long term.

For harm reductionists, the rhetoric of “saving lives” is powerful.  But under the surface, there’s a deadly serious economic contest as the nicotine and tobacco industries work the corridors of power.

As more public health leaders come out in favour of vaping, there’s a once-in-a-generation opportunity to re-normalise nicotine addiction and rescue recreational nicotine use from the poor image of smoking.

[US advertisement for Blu, an e-cigarette brand owned by Imperial Brands]


“No one likes a quitter, so make the switch today”

The e-cigarette industry is delighted with Public Health England’s support for e-cigarettes, seamlessly blending PHE messages into their marketing strategies, as illustrated here.

The UK Vape Industry Association, whose members include British American Tobacco, Philip Morris and Japan Tobacco International, feature Public Health England’s 95% safer claim in their advertising for VAPRIL – Vaping Awareness Month.

In one undercover investigation, 87% of vape shops in England sold e-cigarettes to people who were neither current nor former smokers, violating the Code of Conduct of the Independent British Vape Trade Association, a rival vape trade organisation.  You can watch the footage here.

But it’s not as if these industry codes actually mean anything.

And little point in government taking the high ground when their strategy for alcoholism is to promote light beer.

The Independent British Vape Trade Association, based in “the heart of Westminster” states that “The UK has remained firm in its belief that e-cigarettes should be promoted as an effective tobacco cessation aid”.

IBVTA members include “HealthySmoker”, “Puff in Peace”, “Sweet Cloud”, “Vlad the Inhaler Ltd” and “Liberty Flights”, as in “Liberty Flights Limited is working with the addiction centre at a leading London University on a study funded by a cancer charity, supporting clients who access drug and alcohol services.  The location for the study is an NHS Foundation Trust which provides care and treatment for people with mental health problems.

Liberty Flights Ltd is supplying vaping products and advice for a quit-smoking study.

Essex Vape Company is partnering with a local authority public health department and an NHS Foundation Trust on a smoking cessation program for pregnant women: a voucher scheme helps participants to access the company’s vaping starter kits.

Totally Wicked (“the world’s premier vaping retailer”) delivered “e-cigarette training” to staff involved in a quit smoking program funded by a city council, and provided free e-cigarettes and e-liquids to 1000 smokers.

One gets the impression that the vaping industry has a spring in its step in England, partnering with government, handing out free vapes.

Promoting nicotine has become the Lord’s work.

Although tank systems remain the most popular vaping products in the UK (77% in 2019, down from 83% a year earlier), branded, re-chargeable products with pre-filled cartridges are on the rise (see here, pp 1, 13).

The leading UK e-cigarette brands are Vype (18%) [British American Tobacco], Blu (15%) [Imperial Brands], Logic (11%) [Japan Tobacco], and JUUL [the dominant US brand but a new entrant in the UK market], with 6%.

The reality is that heated tobacco products, and e-cigarettes, are increasingly owned and marketed by transnational tobacco companies – the folks who trade in death on an industrial scale.  See for example here and here.


Not everyone shares the excitement of PHE’s approach.

Professor Martin McKee from the London School of Tropical Medicine states that PHE “seems to be doing everything it can to promote e-cigarettes”, exposing a new generation to poorly studied chemicals.

The prominence given to PHE’s “95% safer” claim, by the e-cigarette industry, has led to an “escalation of commitment” in which “evidence that supports the position being held is promoted, whereas that which challenges it is dismissed”.

Professor Jeffrey Gotts, lead author of a recent study in BMJ (see here) told the New York TimesPeople are conducting a huge experiment on themselves about what kind of lung disease you can produce from all these different chemicals that you’re putting into the lung.  And the bulk of the evidence is increasingly that these devices have new and unpredicted toxicity”.

Children, adolescents and teenagers tend not to feature much when tobacco harm reductionists open up about their preference for relaxing controls on e-cigarettes.

After all, they’re not supposed to be using these products, are they?

And yet, every year, arriving in Washington DC to teach, I’ve watched youth vaping rates rise.  From 2011 to 2015, use of e-cigarettes among high school students rose by 900%: from 1.5% to 16%.

In 2019, 27.5% of high school students (aged 14-18 years) were currently using e-cigarettes (4.1 million people), and 10.5% of middle school students (aged 11-13 years).

That’s the power of the “consumer led approach” to e-cigarette regulation that the nicotine industry and its public health followers now advocate.

It’s a fascinating example of regulatory capture.  Without the regulation.

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.



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)


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.


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.

Democracy is not a spectator sport: more on campaign finance and public health

Picture1Mike Daubes tie 2

In October 2015, at the Oceania Tobacco Control Conference, Professor Mike Daube, one of Australia’s best-known public health advocates, gave the closing address.

He wore a tie given to him some years ago by an American colleague.  It read: “Democracy is not a spectator sport”.

On the back were the words: “Made exclusively for Philip Morris”.

The tie had been sent to all member of Congress.


A seat at the table

Like other business groups, tobacco companies want to be “part of the process”, to have a seat at the table.  In the words of the CEO of one Australian tobacco company:

“The purpose [of political donations by tobacco companies] is to make sure the democratic process is working and to get access, so we can have a seat at the table…. I think it’s really important that people fund democratic parties so that they can exist. Otherwise they cease to exist, they take the money from the public purse.  I think it’s a really strong part of democracy that political parties are allowed to raise funding from their constituency…the only caveat I would make to that is it has to be absolutely transparent.”

RM: But is that what a political donation buys?

“…you know, you get to [go to a lunch where a Minister is speaking] and you get to have a chat with him and say, ‘how are you?’ And you get to know the people and the players in the market; otherwise you never have any human contact, [which makes it] incredibly hard to be part of the process.”

In Australia, the High Court has ruled that freedom of political communication on matters of politics and government is implied by the Australian Constitution and is “an indispensable incident of the system of representative government for which the Constitution provides”.

But should this freedom translate into a right for tobacco, alcohol, gambling, and other corporations to make large donations to political parties in order to strengthen alliances and to influence political and policy processes?

If the capacity to make political donations acts as a social lubricant which facilitates access and relationship building, where should the line be drawn in denying access to certain industries?

As noted in a previous post, in McCloy v New South Wales [2015] HCA 34 (7 October 2015), the High Court considered the constitutional validity of provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which impose caps on political donations and electoral communications expenditures.

The same Act prohibits property developers, tobacco industry business entities, and liquor or gambling industry business entities from making political donations at all.

In McCloy, a property developer argued that the freedom to “build and assert political power”, by making substantial political donations with the intention of achieving access to politicians, was an aspect of the implied freedom of political and government communication.

The plaintiff argued that as a result, the caps on political donations imposed by the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (ss 95A-95B) were inconsistent with the Constitution and therefore invalid.

This post briefly summarises key aspects of the reasoning adopted by French CJ, Kiefel, Bell and Keane JJ, who joined in the majority judgment.


Freedom of political and government communication in Australia

In an earlier case which had considered a different section of NSW’s Election Funding Act, five Justices of the High Court reaffirmed that, unlike the First Amendment to the United States Constitution, the implied freedom of political communication is not a personal right which restricts legislative power in accordance with the measure of a constitutionally protected individual freedom of persons to express themselves.

In Unions NSW the High Court accepted that the freedom of political communication protects the discussion of political and government matters at federal, state and local levels (Unions NSW [25]).

In McCloy, the majority summarised the approach that the Court takes when it considers the validity of legislation – in this case NSW’s Election Funding Act.

The first question is to consider whether the specific provision in dispute “effectively burdens the freedom of political communication either in its terms, operation or effect” (Unions NSW [35]).

The High Court accepted that irrespective of the legitimacy of the purpose of the Election Funding Act, the provisions in dispute did effectively burden the implied freedom of communication because they reduced the funding available to political parties and candidates (Unions NSW [38]; McCloy [30]).

Given this conclusion, the next question was whether the provisions of the Act that were in dispute were proportionate or served a legitimate purpose in a way that was compatible with the system of representative government prescribed in the Constitution ([Unions NSW [44]).

Identifying whether legislative provisions serve a legitimate purpose requires the court to identify the statutory purpose(s) that the relevant provisions seek to achieve (McCloy [31]).


Caps on political donations

The majority accepted that the caps on political donations were intended to prevent corruption and undue influence within the government of the state.  They were also directed to overcoming perceptions of corruption and undue influence, which could in turn undermine public confidence in government (McCloy [33]-[34]).

The majority accepted that large political donations by wealthy donors may dominate the flow of political communication, drowning out other voices and undermining “equality of opportunity to participate in the exercise of political sovereignty” (McCloy [45]).  In their majority judgment, French CJ, and Kiefel, Bell and Keane JJ pointed out that the capping of political donations was not only compatible with the system of representative government established by Australia’s constitution, but preserved and enhanced it [47].

Mike Daubes tie 2


Prohibited political donors

The Election Funding Act also prohibited donations by property developers, tobacco, alcohol and gambling business entities.

Pointing to no fewer than 8 reports about corruption in the planning process published by the NSW Independent Commission Against Corruption (ICAC) and other bodies, the majority accepted that planning decisions may involve the risk of undue or corrupt influence that is “greater than in other areas of official decision-making”.

The prohibition on donations from property developers was upheld as being directed to a legitimate purpose.

The majority went on to consider whether there were “alternative, reasonably practical means” of achieving the legitimate purpose of reducing the risk of corruption and undue influence, by means other than the capping provisions and the prohibited donor provisions.  This step is required because any restriction of the implied freedom of political communication must be justified (McCloy [68]).

The majority Justices emphasised that considering “alternative means” does not mean that the Court will substitute its own judgment for the political judgment of Parliament (McCloy [58]).  Rather, the court considers proportionality by considering:

  • whether there is a “rational connection between the provision in question and the statute’s legitimate purpose” (McCloy [80]);
  • whether there are “other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom” [81], and thirdly
  • whether the effect of the legislative provision on the freedom is “undue”.

This third step necessarily involves a value judgment: the court must weigh the “public importance of the purpose sought to be achieved” [86]. The greater the restriction on the implied freedom of political communication, the “more important the public interest purpose of the legislation must be [in order] for the law to be proportionate” [87].

In this case, the majority recognised the public interest in removing both the risk of corruption, and perceptions of corruption.

On the other hand, the caps on political donations, and the prohibitions on political donations by certain entities did not prevent people from seeking access to politicians or from communicating with others about matters of politics and government.  For these reasons, the majority upheld the constitutional validity of the “capping” and “prohibited donor” provisions in the Election Funding Act.

This bodes well for any potential challenge to legislation prohibiting donations from alcohol, tobacco and gambling business entities.


In summary

The Unions NSW and McCloy cases confirm that the power that companies and business associations might seek to exercise over the political process in Australia is not unchecked.

Corporations do not have rights of commercial speech that are protected by the Constitution.  The Australian Constitution protects freedom of political communication, but it does not protect the specific commercial interests of particular companies in having their voices heard, including through advertising.

Secondly, neither corporations nor individuals have personal rights “to communicate” about regulatory matters relating to their business in the sense that legislation infringing those rights will be invalidated.  Rather, the question will be whether legislation enacted by Parliament is invalid because it “effectively burdens the freedom of political communication either in its terms, operation or effect” (Unions NSW [35]).  Even when it does, such legislation will be upheld when it is proportionate or serves a legitimate purpose such that it is compatible with the system of representative government prescribed in the Constitution ([Unions NSW [44]).

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.

Campaign finance: a neglected public health issue


Enjoying the Australian election?  Of course you aren’t.

But campaign finance and political donations are a neglected public health issue.

A few years ago I asked the Chairman of an Australian tobacco company “Why do you do it? Why give political donations at all?”

“[F]or the same reasons as Westfield or anyone else”, he answered.  “We think it doesn’t hurt access. Of course it doesn’t.”

“It doesn’t buy favours but it gives you personal access to the [politicians]?”

“You know, the notion that $100,000, and we’re not talking millions, we’re talking hundreds of thousands, gives you much of anything is really just bizarre.  I mean…”

“Is it noticed?  Does it get you a cup of coffee and 15 minutes or is it just irrelevant?”

“Is it absolutely irrelevant?  No. The truth is, government departments see stakeholders.  [I]f we gave no money or if we gave $1 million to whatever the party is that happens to be in power, the Health Department will accept our submissions about the latest packaging restriction or whatever.  Will it take more notice of us because we give them $1 million?  I think the answer is clearly no….people are aware it’s such a small amount of money”.

Later on:

“The reason we do it is because we are obviously a highly regulated industry and … on balance, we think it’s worth doing.  Would it make any difference if we didn’t?  I doubt it.  It probably would make it a bit harder to call up the minister and get, get access…”

This kind of politicking raises an important question.  Why should industries that harm and destroy health have privileged access to politicians and greater influence on public policies – simply because they have more money?


Restrictions on political donations in NSW

This post briefly reviews restrictions on political donations under NSW law.

Under Commonwealth law, there is no limit for donations to political parties and candidates for political office, although donors must disclose donations above the disclosure threshold (currently $13,000 for the year to 30 June 2016) to the Australian Electoral Office (Electoral Act 1918 (Cth) ss 305A-305B).

In New South Wales, on the other hand, Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 imposes restrictions on political donations and electoral expenditure.  The purpose of these restrictions is to “prevent corruption and undue influence in the government of the State” (s 4A).

Except where specified, the Act extends to both State and local government elections.

There are 5 main restrictions.

Firstly, the Act requires the disclosure of “reportable” political donations and electoral expenditures (as defined) to the NSW Electoral Commission (ss 86-87, 92-93).  The Commission is required to make these disclosures publicly available on its website (s 95).

Secondly, the Election Funding Act imposes caps on political donations (ss 95A-95B) and on “electoral communication expenditures” during the run-up to State elections.  This is known as the “capped expenditure period” (ss 95F, 95H-95I).

For the year ending 30 June 2016, political donations to a registered political party are limited to $5,800, and $2,500 for an elected member or political candidate.  Current caps on electoral communications expenditure are shown here.

However, the restrictions on political donations do not apply to gifts intended for private use by a Member of Parliament (s 85(4)), nor does the cap apply to expenditure by a wealthy politician or candidate on their own campaign.

Although caps on political donations and electoral communications expenditures affect the finances of election campaigns, this is offset by Part 5 of the Act, which regulates public funding of NSW election campaigns.

Thirdly, in addition to caps on political donations and electoral communication expenditure, the Act prohibits a range of “indirect campaign contributions” (s. 96E).  These include the provision of office accommodation, computers or other equipment which are to be used substantially or wholly for election campaign purposes.  It also includes the waiving of payment for electoral advertising expenditure, although this does not apply to the provision of voluntary labour.

Fourthly, in order to remove perceptions that foreign political donors can unduly influence the political process, the Election Funding Act states that political donations can only be accepted from individuals enrolled to vote in the State, or from corporate entities that are either registered to operate a business in Australia or who have an executive officer living in Australia (s 96D).

Finally, the Act prohibits certain donors from contributing to a candidate, politician, or political party at all.  Prohibited donors include: a “property developer”, a “tobacco industry business entity”, a “liquor or gambling industry business entity”, or an industry association representing the donors listed above.

The definition of prohibited donors include “close associates”, including company officers, related bodies corporate, and significant shareholders of property developer, tobacco, liquor and gambling companies (s 96GAA, 96GB).

It is unlawful for a prohibited donor to make a political donation in NSW (s 96GA).

LA 2015

Campaign finance legislation tested in court

In McCloy v New South Wales [2015] HCA 34 (7 October 2015), a property developer challenged the constitutional validity of those provisions of the Election Funding Act that prevent property developers from making contributions in excess of the cap to a political party.

The plaintiffs included a property development corporation, and a director and close associate of such a company who argued that the ability to make substantial political donations in order to gain access to politicians is an aspect of Australia’s implied constitutional freedom of political communication.

Six of the seven justices concluded that the caps on political donations, and the prohibited donor provisions were not invalid by virtue of infringing the implied freedom of communication on government and political matters that is recognised by the Commonwealth Constitution.

This case has interesting implications for political spending by corporations whose business activities come at a cost to public health.

The McCloy case will be discussed in a later post.

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


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 tiny illustration of what the tobacco industry is like

518 - B&W

Click on this link.  It’s a tiny illustration of what the tobacco industry is like.  It ought to be placed on the health curriculum of every school.

Professor Stephen Leeder once wrote that public health is a “contest of raw political power” (S.R. Leeder, “Ethics in public health” Internal Medicine Journal 2004; 34:435-439).  Basically, it’s WAR!  He’s right.

(And if you ever doubted it, read this).

The document I’m referring to was written by the owner and manager of E. M. Bowman & Co, Flinders Island’s longest established general store.  It is a submission to a Parliamentary Committee of the Legislative Council of the Tasmanian Parliament, which is holding hearings into the Public Health Amendment (Tobacco-Free Generation) Bill 2014.

Tasmania’s smoking rate is second-only to the Northern Territory, with daily smoking prevalence of 20.6% in 2011-2012.  The Tobacco-Free Generation Bill proposes an endgame scenario for tobacco in the state.

The Bill proposes to amend Tasmania’s Public Health Act 1997 (Tas) by creating an offence for selling tobacco at retail, in Tasmania, to a member of the “tobacco-free generation” (s. 67J).  The Bill defines a “member of the tobacco-free generation” as a person born after 1 January 2000.  The Bill does not have the support of the Tasmanian government.

The Bill would not prohibit smoking by those born after 1 January 2000.  However, as time went on, the impact of the legislation would be that:

  • adults who were older than the current year (eg older than 21 years during the year 2021) would, by virtue of being born before the year 2000, be able to continue to purchase tobacco during their lives;
  • On the other hand, adults of the tobacco-free generation, who would be the same age, or younger than the current year (eg aged 21 in 2021) would never be entitled to purchase tobacco lawfully in Tasmania.

You can read all the submissions about the Bill here.  This post does not focus on the merits of the Bill.

In her submission, Ms Lois Ireland, owner and manager of E M Bowman and Co, writes how she was contacted by Imperial Tobaco, which attempted to co-opt her into lobbying the Legislative Council against the Bill.

Ms Ireland writes:

“I made a conscious decision to stop gaining a profit from sales of a product that I knew to be highly addictive and that was causing long term health issues with those who I knew personally as members of my community.  I knew they would go elsewhere to purchase their cigarettes but I did not wish to be further implicated in their poor health choices.  As a result I fully endorse any moves that make it more difficult for young people to take up/continue smoking, despite any effects such measures may have on businesses”.

Ms Ireland’s submission to the Parliamentary Committee illustrates two important lessons.

First, it is one, tiny, local example of a global phenomenon: the relentless efforts of tobacco companies to undermine, weaken and resist tobacco control laws and policies, and to identify proxy lobbyists to assist them in doing so.

Secondly, it illustrates a singular act of courage by a retailer whose revenues would have been reduced by the value of the tobacco she chose not to sell.  But she did it anyway.

If you ever visit Flinders Island, make a point of stopping in to E M Bowman & Co.