Consulting, Greenhill
Greenhill Consulting
PO Box 590
Kingston
TAS 7051
[ADDRESS REDACTED]
Assistant Secretary
Drug Strategy Branch
Attention: Tobacco Reform Section
Department of Health and Ageing
MDP 701
GPO Box 9848
Canberra ACT 2601
Email: tobaccoplainpackaging@health.gov.au
Comments on the Consultation Paper
Tobacco Plain Packaging Bill 2011:
Exposure Draft 7 April 2011
We congratulate the government on moving forward with plain packaging of tobacco products. This is a very important step in the process of eliminating all advertising from tobacco products, and reducing their attractiveness to young people and potential quitters. However, this Bill needs to be considered in the context of a suite of legislation and administrative arrangements which will be necessary to regulate the palatability and toxicity of tobacco products within a short period of time.
The Plain Packaging Bill deals with the last vestiges of advertising tobacco products. It is important that the content of tobacco products be considered as the next stage of regulation and as such an integrated regulatory framework should be established that is consistent with this goal, and enables a seamless transition, rather than a patchwork of disjointed regulatory arrangements being developed at a national level.
As has been pointed out in the consultation paper, smoking cessation rates need to double if we are to reach the COAG target of 10% by 2018. Plain packaging and other measures such as the investment in effective media campaigns will assist in the decline of smoking rates.[1]
We believe that it is important to reduce the attractiveness of the product itself, its palatability and content, as well as the visual effects of advertising, in order to reach the 10% target.
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Shippers
On Page 10 of the consultation paper there is a loophole in relation to “shippers”. Display of these is prohibited in Tasmania, but we are unsure of the situation in other States/territories. It is recommended that the packaging of shippers should also be subject to the legislation, but may not need health warnings. Plain packaging without trademark in the olive green would be sufficient. Our experience with the tobacco industry is that they will exploit loopholes like this if they see an opportunity to put monster “Marlboro” or “Peter Jackson” signs, colours and logos on large packages in transit, on trucks, wharves, shopping centres etc.
Cost recovery
We note that there is a reference to cost recovery on page 8 of the Bill, and we provide comments on this in the context of the related Key Action Area 5 of the Preventive Health Strategy.1
It is important to consider the question of cost recovery for regulating the tobacco industry, not merely in relation to the current Bill, but to plan for the immediate future whereby regulation of cigarette engineering and content will be brought into effect in accordance with implementation of the FCTC.
Retailers are currently licensed in some states/territories and the revenue barely covers the costs of enforcement of sales to minors and other regulations. We doubt there is sufficient capacity to raise revenue from this source to cover the costs needed for regulation of plain packaging and cigarette engineering and contents.
Our recommendation is that the tobacco industry itself be licensed to operate in Australia and that licenses be of the order of $10 million per annum for BATA and Philip Morris, $5 million for Imperial and $1 million for companies with small market share, and that these be adjusted annually according to market share.
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We propose that the revenue from license fees on tobacco companies be used to establish a tobacco branch within the ACCC (or the DOHA), with responsibility for regulating the content and packaging of tobacco products, and regulation of tobacco content. Alternatively, funding should be made available from general revenue bearing in mind that tobacco taxes provide billions of dollars, increasing annually, to the national budget.
We note that the Government has said it is not intending to establish a body specifically to regulate the contents and performances of tobacco products. The Commonwealth will engage the states and territories in preliminary discussions on the possibility of regulation of tobacco products through the National Drugs and Poisons Scheduling Committee (NDPSC), which currently regulates nicotine as a poison.2
We do not consider it appropriate for the NDPSC to be the appropriate body to regulate the content of tobacco products. Firstly there are other bodies more experienced in dealing with the tobacco industry, such as the Department of Health and Ageing and the ACCC. Secondly, cigarette engineering is a very specialized field and requires expertise which is not the province of the pharmacy representatives on this committee. Finally because the complex nature of a committee, which is subject to the vagaries of ever changing state political structures and nuances, would be paralysed by processes and unable to regulate the tobacco industry effectively. This model would suit the tobacco industry and no doubt they will recommend it, a sure sign of ineffectiveness. A strong central authority with bureaucratic, legal and cigarette engineering expertise is essential in dealing with an industry like tobacco.
The Therapeutic Goods Administration (TGA) is a division of the Department of Health and Ageing. The TGA's overall purpose is to protect public health and safety by regulating therapeutic goods that are supplied either imported or manufactured, or exported from Australia. Therapeutic goods include medicines, medical devices and human blood, blood products and tissues. Therefore it is unlikely to be an appropriate vehicle for the regulation of tobacco products, not only because tobacco has no therapeutic use, but because to argue that it is beneficial is unlawful in some States.
Some States have already attempted to regulate the content of tobacco products (SA and TAS) by banning the sale of fruit and confectionary flavoured cigarettes. Whilst the legal status of these is uncertain, nevertheless there is some precedent in Australia, states have been willing to act, and the Commonwealth has the power to do so.
We refer to Article 9 of the FCTC which relates to the regulation of tobacco products. 3
We argue that an incremental approach to the regulation of cigarette engineering will make a major contribution to reducing smoking rates in Australia. Australian and New Zealand researchers and tobacco control experts have suggested some mechanisms for regulating tobacco products and in some cases for eventually phasing out the sale of tobacco products. Varying models have recently been suggested for achieving this outcome, including the “sinking lid”, the “regulated market” and the “four policy” approach. [2–4]
In addition to the recognised and well researched approaches to reducing smoking rates, such as increasing price, mass media campaigns, elimination of smoking indoors and in public open spaces, and elimination of advertising, sending tobacco products under counters at point of sale, cessation support services, and introduction of plain packaging, that cigarette engineering should be tackled to reduce the palatability of cigarettes.
The removal of flavourings and vented cigarette filters would reduce the palatability of cigarettes and therefore their attraction to children, new or relapsing smokers and potential quitters. Furthermore, removal of some substances that are currently added to tobacco products may reduce their toxicity, and the gradual reduction of nicotine over time would reduce addictiveness.
Attempts have been made in Australia to regulate the content of cigarettes. The ACCC succeeded in eliminating “light” and “mild” descriptors on cigarettes sold in Australia,( although this initiative has been only partially successful in reducing consumers perceptions about the “lighter” products, due to tobacco industry trickery) and the ACCC has also succeeded in mandating Reduced Fire Risk cigarettes, and banning Dunhill wallet packs, known as “kiddie packs”. The ACCC has gradually developed an impressive track record and expertise in dealing with the tobacco industry.
In 2007, a member of the Tasmanian Legislative Council proposed a ban on menthol cigarettes but her motion was defeated. The Tasmanian and South Australian Governments banned fruit flavoured cigarettes in 2008. Due to legal complications relating to the operation of mutual recognition legislation, the status of these bans is problematic, and the ban on display of cigarettes at point of sale is the only legal mechanism for removing the opportunity for such sales.
Vented cigarette filters are known to be associated with increased risk of ill health and health professionals and researchers have recommended that they be banned, along with reducing nicotine and CO2 levels. Borland et al have said “Kozlowski … et al….have previously proposed that filter ventilation should be banned, and we believe that the present study strengthens the case for that proposal.”[5, 6]
A reduction in nicotine content over time, as in models suggested by Laugesen and Benowitz, may also substantially contribute to smoking cessation rates, as the cigarettes become less addictive, and would not expose smokers to additional harm. [7]
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The incrementalist approach to cigarette engineering and constituent regulation could use existing Australian regulatory infrastructure.
Menthol is also an important additive that should be banned as soon as possible. It is possible that menthol is one of the causes of the increase in lung cancer rates in women. “Studies such as ours indicate that in the presence of menthol, there is an increase in the uptake of carcinogens and nicotine that have the potential to increase the risk of oral cancer and addiction.”[8, 9]
Proposal
1. Establish a tobacco regulatory branch of the ACCC, and an expert advisory committee on cigarette engineering.4
a. Amend the Trade Practices Act to ensure that the ACCC can adequately regulate the constituents of tobacco products in addition to labelling and marketing.
b. Fund the expanded role of the ACCC from substantial ($25+ million) new licensing fees for tobacco companies operating in Australia.
c. Permit the ACCC (or DOHA or both) to engage independent consultant laboratories/agencies to test the constituents of tobacco products, funded as above.
d. Require the tobacco industry to provide information to the ACCC on cigarette engineering and research on additives, to be made available on the ACCC (or DOHA) website.
2. Prohibit specific filters, additives and flavourings through the tobacco regulatory branch in particular as a first step
a. Ventilated filters [6]
b. Use of pigs blood in any filters, papers and cigarettes [10]
c. Use of asbestos in any filters [11]
d. Menthol [6]
e. Fruit, spiced or sugar based flavourings including herbs, spices; honey, glucose, sucrose, fructose, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, liquorice, cocoa, chocolate, cherry, or coffee.
3. Prohibit the sale of tobacco in Australia, where the use of DDT or high phosphate fertilizers using Polonium 210 has been used on tobacco crops in any jurisdiction, where those crops will be used in Australia.[12, 13]
4. Prohibit any other product, including herbicides, in the growing or manufacture of cigarettes and tobacco sold in Australia that may, using the precautionary principle, cause harm to users. It would not be necessary to prove that the product did cause harm in order to prohibit it.
5. Prohibit the addition of any substances not approved by the regulatory authority such as ammonia.[14]
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6. Reduce the amount of nicotine, tar and CO2 permitted in cigarettes over a four to five year period
The Tobacco control policy resources within DOHA need to be continually strengthened and funded in order to provide the driver for reform on tobacco control issues, at a national and international level. The tobacco industry is a resourceful and unprincipled opponent and government’s need to maintain vigilance in dealing with the industry. Resources from tobacco licensing should be directed to this area, as well as to a regulatory authority.
[NAME REDACTED]
References
1. Gartner, C.E., J.J. Barendregt, and W.D. Hall, Predicting the future prevalence of cigarette smoking in Australia: how low can we go and by when? Tobacco Control, 2009.18 (3): p. 183–189.
2. Laugesen, M., et al., Four policies to end the sale of cigarettes and smoking tobacco in New Zealand by 2020. The New Zealand Medical Journal, 2010. 123(No 134): p. 1-13.
3. Thomson, G., et al., Ending appreciable tobacco use in a nation: using a sinking lid on supply. Tobacco Control, 2010.19 (5): p. 431-435.
4. Borland, R., A strategy for controlling the marketing of tobacco products: a regulated market model. Tobacco Control, 2003. 12(4): p. 374-382.
5. Borland, R., et al., Use of and beliefs about light cigarettes in four countries: Findings from the International Tobacco Control Policy Evaluation Survey. Nicotine & Tobacco Research, 2004.6(Suppl 3): P.S311-S321.
6. Kozlowski, L.T., et al., Maximum yields might improve public health—if filter vents were banned: a lesson from the history of vented filters. Tobacco Control, 2006.15(3): p. 262-266. 7. Benowitz, N.L., S.M. Hall, and S. Stewart, Nicotine and Carcinogen exposure with smoking of progressively reduced nicotine content cigarette. Cancer Epidemiology, Biomarkers and Prevention, 2007. 16.
8. Arcavi, L. and N.L. Benowitz, Cigarette smoking and infection. Archives of Internal Medicine, 2004. 164(20): p. 2206-2216.
9. Squier, C.A., M.J. Mantz, and P.W. Wertz, Effect of menthol on the penetration of tobacco carcinogens and nicotine across porcine oral mucosa ex vivo. Nicotine & Tobacco Research, 2010. 12(7): p. 763-767.
10. MacKenzie, R. and S. Chapman, Pig's blood in cigarette filters: how a single news release highlighted tobacco industry concealment of cigarette ingredients. Tobacco Control, 2011. 20(2): p. 169-172.
11. Pauly, J.L., et al., Cigarettes with defective filters marketed for 40 years: what Philip Morris never told smokers. Tobacco Control, 2002. 11(suppl 1): p. i51-i61.
12. Muggli, M.E., et al., Waking a Sleeping Giant: The Tobacco Industry's Response to the Polonium–210 Issue. American Journal of Public Health, 2008.98(9): p. 1643-1650.
13. Chapman, S., "Keep a low profile": pesticide residue, additives, and freon use in Australian tobacco manufacturing. Tob Control, 2003. ]12(Suppl 3): p. iii45 - 53.
14. Stepanov, I., et al., Carcinogenic tobacco-specific N-nitrosamines in US cigarettes: three decades of remarkable neglect by the tobacco industry. Tobacco Control, 2011.
1 Preventive Health Strategy. (government response) Action 5.4
5.4 Regulate tobacco design, contents, emissions and labelling.
5.4.1 Establish or nominate a body with the power to regulate the contents and performance of tobacco products and any alternative nicotine delivery devices that come onto the market in Australia, and with responsibility for specifying the exact wording of any public disclosure about contents and performance.
5.4.2 Specify the form and content of reporting required for all tobacco7 products, and the exact wording required for disclosures to consumers.
5.4.3 Consider prohibiting the use of filter ventilation in Australian cigarettes.
5.4.4 Consider banning all additives that enhance palatability or addictiveness.
5.4.5 Specify any further modifications required, restrictions on additives or upper limits for emissions.
2 Taking Preventative Action – Government Response Page 70
http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/takingpreventative-action
3 FCTC Article 9 Regulation of the contents of tobacco products: The Conference of the Parties, in consultation with competent international bodies, shall propose guidelines for testing and measuring the contents and emissions of tobacco products, and for the regulation of these contents and emissions. Each party shall, where approved by competent national authorities, adopt and implement effective legislative, executive and administrative or other measures for such testing and measuring, and for such regulation.’ Comments on the Consultation Paper: Tobacco Plain Packaging Bill 2011: Exposure Draft:
4 This model could also be used with DOHA as the regulatory agency, however the ACCC is already set up as a regulatory agency, and has legal and prosecution resources available, and is experienced in dealing with the industry.
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