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.

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

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Vanity Fair, February 2004

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

And other stuff.

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

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

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

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

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

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

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

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

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

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

Hitchens died less than 18 months later.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How should public health advocates talk about consequences?

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

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

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

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

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

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

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Why is the U.S. Chamber of Commerce playing patsy to the tobacco industry, and what does this mean for Australia?

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“From Ukraine to Uruguay, Moldova to the Philippines” – according to the New York Times – the U.S. Chamber of Commerce and its affiliates “have become the hammer for the tobacco industry”.  This is revealed by “interviews with government ministers, lobbyists, lawmakers and public health groups in Asia, Europe, Latin America and the United States.”

By Presidential order, U.S. federal agencies are not supposed to promote the export or sale of tobacco products in their global trade promotion activities.  However, the U.S. Chamber of Commerce is a business federation of American companies and business associations, so it can do what it likes.  It spends more on lobbying than any other U.S. industry group.  There’s an Australian branch with offices in all state capitals.  They may be wining and dining our politicians even as we speak.

The pro-tobacco lobbying activities of the U.S. Chamber are summarised in a report recently published by a coalition of U.S. public health and consumer rights groups, entitled U.S. Chamber of Commerce – Blowing Smoke for Big Tobacco.

As the BMJ points out, in 2009, the U.S. Chamber made a submission to Australia’s Preventative Health Taskforce, which had been tasked by former Health Minister Nicola Roxon to develop a national strategy to reduce the burden of disease from alcohol, tobacco, and obesity.  That submission protested against the proposal for mandatory plain packaging of tobacco products.

In 2011, the Commonwealth Parliament passed the Tobacco Plain Packaging Act.  Evidence shows that it was immediately and highly successful in increasing the rate of quit attempts.  For more evidence, see this open access special supplement in Tobacco Control (April 2015) , or read on here.

In 2012, Ukraine lodged a complaint against Australia, arguing that the Act breached Australia’s obligations under a number of World Trade Organisation (WTO) Agreements.

According to Ukraine’s Prime Minister, Arseniy Yatsenyuk, Ukraine’s complaint against Australia was initiated at the request of the U.S. Chamber of Commerce.  The costs of the action were reported to be at least partly funded by British American Tobacco.

In May 2015, the WTO panel hearing the complaint was suspended at Ukraine’s request.  The reasons for this change of heart may include the closer ties between Australia and the Ukraine following the shooting down of MH17 (Australia has opened an embassy in Kiev and provided $100 million in assistance).   Ukraine’s complaint is not only inconsistent with its status as a party to the Framework Convention on Tobacco Control, but with its aspirations for a closer relationship with the EU and perhaps EU membership.  In 2014, the European Parliament and EU Council adopted the revised EU Tobacco Products Directive.

Multinational corporations producing harmful products – such as tobacco, or alcohol – can’t bring proceedings by themselves alleging that the laws and policies of foreign countries breach the WTO rules.  Instead, they rely on friendly governments to pursue complaints for them.  On the other hand, standing may be granted to foreign investors through investor-state dispute resolution clauses in trade and investment agreements.  Within the Asia-Pacific, the U.S. Chamber of Commerce has been lobbying heavily for the inclusion of investor-state dispute resolution clauses in the Trans Pacific Partnership Agreement – with no carve-outs or exclusions for tobacco.

The protection of wealth in the globalized trading system relies increasingly on large and powerful corporations using trade and investment agreements as a political tool, lobbying governments to weaken or abandon domestic health policies that could undermine revenues, and when they fail, trying to claw back compensation under variously worded clauses.  Trade and investment agreements might be complex, but countries that give foreign corporations – especially tobacco firms – the capacity to meddle in domestic health policies risk losing a significant measure of health sovereignty.

Larger countries may be willing to defend their sovereign laws, although doing so may come with a hefty price tag.  Smaller countries may lack not only the money, but the specialist knowledge, and the money to hire the specialist knowledge.  Australia’s bill for defending the complaint brought by Philip Morris Asia under Australia’s bilateral investment treaty with Hong Kong – claiming that the Tobacco Plain Packaging Act represents an expropriation of PM’s investments in Australia – has been estimated so far at $50 million. No wonder the U.S. Chamber doesn’t want any tobacco carve-outs. It knows that the value of the TPPA lies only partly in the legal rights conveyed through the terms of the agreement itself, and perhaps mostly in the political value of the agreement as a tool for tobacco companies to bully governments in an effort to weaken tobacco controls.

But back to the Ukraine. Thanks, apparently, to the U.S. Chamber of Commerce, a country with negligible trade links with Australia, and no tobacco trade, was able to begin the process of hauling a democratically elected government over the coals for passing legislation to reduce death and disease from tobacco use.

This raises some important questions.  Does the U.S. itself think its Chamber of Commerce has acted appropriately, and if not, does it have the capacity to haul it in?  If the Australian Business Council had lobbied, say, Indonesia, to bring a WTO claim against the U.S. attacking certain provisions of the U.S. Family Smoking Prevention and Tobacco Control Act, would that have been considered appropriate by our American friends?  Just how close has the U.S. Chamber gotten to Australian Ministers and negotiators in the current TPPA negotiations?  This is an important question that should be answered, especially since public health experts have been completely frozen out.  If the U.S. Chamber of Commerce is a tobacco lobby, shouldn’t the Australian government declare all meetings with it in which the status of tobacco in the TPPA is discussed, in order to meet its obligations under the Guidelines for Article 5.3 of the FCTC?

Free trade is central to Australia’s economic prosperity, now and in the future.  But saying that doesn’t mean we need to abandon all nuance, and give  tobacco, alcohol, food, pharmaceutical or indeed any other kind of corporations the right to claim compensation if our non-discriminatory health policies undermine their revenues.  For diseases caused by tobacco use, harmful use of alcohol, and poor diet, better health necessarily means avoiding or moderating consumption, and that necessarily means fewer sales.

Currently, Australians can have no confidence that the government is not trading away its health sovereignty under the TPPA.  The government doesn’t trust you to see the draft text. The only way you will see it is if it is leaked.  The TPPA perfectly illustrates the structural weakness in global health governance generally: negotiations that could have a massive impact on the health of future generations are being carried out in secret, in trade and economic forums, and health has no seat at the table.

For cynically disregarding the health sovereignty of nations, for being a shameless patsy to the U.S. tobacco industry in violation of U.S. federal policy, the U.S. Chamber of Commerce is hereby re-named the U.S. Chamber of Tobacco.  Off to the dog box, now, Chamber.  No supper for you…