Inside Story

Current affairs & culture from Australia and beyond

1549 words

Tobacco takes a soft-power hit

16 May 2017

Australia’s pioneering laws, likely to survive the latest legal actions, are having an impact around the world


Unstoppable: Nicola Roxon speaks to journalists after the Australian parliament passed the world’s first plain packaging of tobacco legislation on 21 November 2011. Lukas Coch/AAP Image

Unstoppable: Nicola Roxon speaks to journalists after the Australian parliament passed the world’s first plain packaging of tobacco legislation on 21 November 2011. Lukas Coch/AAP Image

Nicola Roxon has few doubts about what the victory means: “Closer friendships are made fighting a common enemy.” The former federal health minister, who pushed through Australia’s groundbreaking shift to plain tobacco packaging, is reflecting on the reported decision by the World Trade Organization, or WTO, to uphold Australia’s law. As the legal impact starts reverberating around the world, the case has become a landmark for something perhaps even bigger: Australia’s capacity to influence international change through “soft power.”

Bloomberg news reported earlier this month that the WTO’s confidential interim report had rejected a bid backed by tobacco companies to sink Australia’s law. The WTO is due to release its final report later this year, and lawyers in Australia who have been following the case say it is “unheard of” for a WTO outcome to change between interim and final reports. Already, health experts are predicting big changes from the ruling.

As the WTO case against Australia dragged on, it had a chilling effect on other countries. Some that had plans to mandate plain packaging held back. Now, says Rob Cunningham, a senior analyst at the Canadian Cancer Society in Ottawa, the news of the WTO’s verdict has made momentum for global change “unstoppable.” According to Cunningham, “Australia has demonstrated incredible leadership. Australia has done the heavy lifting that will benefit the rest of the world. And now the global dominoes are falling. The result will be reduced addiction, disease, disability and death.”

The momentum started in December 2012, when Australia became the first country to start operating plain packaging. Since then, Britain and France have done likewise, Ireland and Norway are due to do so later this year, and New Zealand and Hungary intend following next year. About ten other countries, including Canada, Romania and Uruguay, have signalled plans for plain packaging.

Even as the Gillard Labor government prepared to pass the enabling legislation in late 2011, other countries and international health outfits were watching Australia closely. And since she left politics four years ago, invitations have kept coming to Roxon to speak on the topic around the world.

She has met government ministers and given talks in South Africa, Norway, Canada, China, Sweden, Denmark and Britain. She has spoken twice at the Bloomberg Initiative to Reduce Tobacco Use, a campaign funded by American billionaire Michael Bloomberg to cut an estimated six million deaths a year from tobacco smoking, most of them in poorer countries. And in 2011, she addressed a UN General Assembly summit on non-communicable diseases. “The fight against big tobacco is one which, together, we will win,” she told world leaders and health officials.

Six years later, with the WTO decision hovering, Roxon puts the point another way. “The movement to control the tobacco industry has to be a global one as well,” she told me recently. “Otherwise we’re fighting with a hand tied behind our back.”

In her post-political life, Roxon remains engaged with the issue. Among other roles, she is chair of the Cancer Council Australia and an adjunct professor at Victoria University. Hers has not been the only voice carrying Australia’s message: “There could have been ten people from ten different Australian organisations, health experts and NGOs, travelling at any one time talking in different countries,” she says.

These countries are the “friendships” Australia has built. The “common enemy” is big tobacco: “All countries where I and other Australians have spoken want to know the same things: what the tobacco industry did to counter our move, how we mastered the political will and how the battle unfolded here.”

Australia’s plain packaging law went further than any previous regulation, anywhere in the world, designed to turn people off smoking. It required all packets to be the same drab brown colour, brand names to be reduced to the same small font size and graphic pictures to be displayed of smoking’s health impacts, such as lung cancer and gangrene. The global tobacco industry was undoubtedly alarmed by the prospect of bigger countries with higher smoking rates taking up Australia’s regime.

The industry didn’t wait for Australia’s law to start operating before trying to stop it. In 2011, British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris launched a constitutional challenge to the legislation in the High Court in Canberra. The same year, Philip Morris Asia opened a separate challenge in a Singapore-based tribunal under a bilateral investment treaty between Australia and Hong Kong. Both challenges failed.

Because the WTO oversees international trade rules and settles trade disputes, it will accept challenges only from WTO members, not from corporations. Four countries, Honduras, the Dominican Republic, Cuba and Indonesia, brought cases against Australia. A fifth, Ukraine, initially joined them, but later withdrew. Some tobacco companies have reportedly helped the countries mount the cases, which were all eventually heard together.

The four countries alleged that Australia’s plain packaging law imposed trade barriers and breached intellectual property and trademark rights. Australia argued that the law was designed, in part, to meet its international obligation to help safeguard public health. In its defence of the Hong Kong case, the Australian government said smoking killed 15,000 Australians each year and placed a significant burden on productivity and the healthcare system.

Legal experts believe Australia has a strong case. “Under WTO law, measures that have a protectionist intent are problematic,” says Andrew Mitchell, a professor at Melbourne Law School. “In contrast, Australia’s plain packaging law doesn’t discriminate between countries. It applies to all tobacco products, whether made here or imported into Australia. So it’s a non-discriminatory measure introduced in good faith to protect public health.”

Meanwhile, almost five years after plain packaging started in Australia, evidence indicates that it is working. The Cancer Council Victoria cites the latest National Drug Strategy Household Survey, which shows a drop of 2.6 per cent in the number of daily tobacco smokers in 2013, the year after plain packaging started, compared with three years earlier. (Results of the latest survey are due later this year.)

The federal health department commissioned Tasneem Chipty, an expert in econometric analysis, to crunch data from smoking prevalence surveys. She concluded last year that plain packaging, after almost three years, had resulted in more than 108,000 fewer smokers in Australia. Tobacco companies have challenged such data, claiming higher prices from increased excise taxes (another government anti-smoking measure) caused the falls in smoking. But Chipty says she accounted for “a range of variables, including excise tax increases.”

In a “post-implementation review” of plain packaging last year, the federal health department found the measure had “begun to achieve its public health objectives of reducing smoking and exposure to tobacco smoke in Australia.”

Amid Australia’s toxic federal political scene, where policy progress often proves impossible, plain packaging stands out for having attracted a strong bipartisan consensus. At first, though, there were divisions.

As the Gillard government prepared to introduce legislation in 2011, opposition leader Tony Abbott and his shadow health minister, Peter Dutton, weren’t ruling out abolishing the law in government. Tobacco companies, which had donated big money to the Liberal Party, vigorously opposed the legislation. So did conservative think tanks allied to the party, including the Institute of Public Affairs.

The Coalition eventually voted for the bill. Roxon now gives credit to Coalition governments from 2013 for keeping up legal and financial support to defend Australia’s case at the WTO. “Many new ministers in this government have been surprised to discover how popular Australia has become overseas with this,” she says.

Once the WTO formally announces its decision, lawyers expect the complainants to lodge an appeal. Such a move would fit the tobacco industry’s pattern of trying to delay plain packaging’s spread. Rob Cunningham of the Canadian Cancer Society says that if the WTO ruling survives an appeal, it will have “enormous impact.” For many countries, “WTO agreements are the only potential legal issue regarding plain packaging.”

Regardless of legal outcomes, Australia’s influence has already spread. “Australia’s Nicola Roxon was genuinely impressive in how she pressed forward, despite fierce tobacco industry opposition,” says Cunningham. “She was a model health minister with a historic achievement and deserves tremendous credit. Australia’s plain packaging experience has been cited in parliament after parliament.”

Roxon herself is anxious to share the credit. “It shows we have smart researchers, very professional public servants, recognised non-government organisations and a sceptical media,” she says. “These things make fertile ground for a government to act. All these partners have been part of a soft power diplomacy taking something to the world that works. The international links are now deep and there are lots of channels to talk, which are being used extensively. I’m just a small part of that, because it has taken on a life of its own.” •

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Still giving a Gonski? Greens senators Scott Ludlum, Nick McKim, Sarah Hanson-Young, Janet Rice, Rachel Siewert, Lee Rhiannon and Peter Whish-Wilson in the Senate in late March. Mick Tsikas/AAP Image

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