Philip Pattemore: No more Mr Nice Guy, now it's war

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A legal war is being waged over the right of governments to legislate to reduce the smoking rate among their citizens and improve their health. Photo / Getty Images
A legal war is being waged over the right of governments to legislate to reduce the smoking rate among their citizens and improve their health. Photo / Getty Images

Have you noticed how the tobacco industry's public relations tactics have recently changed?

Traditionally they have supported what seem to be community-promoting initiatives, such as Keep New Zealand Beautiful and the Life Education Trust's, I've Got the Power (a school programme teaching responsible decision-making).

In these, there's an emphasis on "personal responsibility" and choice, aimed at subtly undermining interpersonal responsibility, in particular the public health implications of second- and third-hand smoking.

Recent events in Australia show, however, that Big Tobacco has given up trying to persuade us how much it cares, and is quite willing instead to use undisguised strong-arm tactics to dissuade governments from passing smokefree legislation. The message now is: "No more Mr Nice Guy. We are bigger than you and we'll rough you up if you continue to threaten our interests."

There have been three legal challenges to the Australian legislation brought by, or with legal support from, the tobacco industry.

The impression is that such processes are intended to frighten other countries from proceeding with strong smokefree legislation. In the first action, four tobacco companies challenged the plain-packaging law on the basis that it was unconstitutional. This is the action that has just been rejected by the Australian High Court.

The second action, that plain packaging breaches intellectual property rights and poses a technical barrier to trade, has been brought by Ukraine, Honduras, the Dominican Republic and others, through the World Trade Organisation, with legal support from tobacco companies.

The third action is potentially more worrisome. Philip Morris has sued the Australian government for the damage it says plain packaging will do to its branding and intellectual property rights.

It has used its Asian office, and a trade agreement between Hong Kong and Australia to challenge the legislation under international law.

In this latter case, three people (one nominated by the government, one by Philip Morris and one appointed by the domestic courts), will decide, in secret, whether the Australian government's democratic power to legislate to protect the health of its citizens is subordinate to its obligations under the trade agreement.

The Australian government has strong legal arguments in its favour, but defending against this challenge is likely to cost it significantly - perhaps more than its tobacco control budget.

Not only does this process erode the democratic powers of governments, but the behind-doors arbitration flies in the face of the natural-justice principles enshrined in Western law - justice must be seen to be done. Powerful industries like Big Tobacco can and will attempt to use these secret negotiations to frighten governments from key tobacco-control legislation.

Could this happen in New Zealand? Until now, our trade agreements have not included provisions for suing the government for discrimination against intellectual property rights. But that might be about to change, under pressure from the United States.

Negotiations between the US, Australia, Brunei, Chile, Singapore, Malaysia, New Zealand, Peru and Vietnam are under way to forge the Trans Pacific Partnership Agreement (TPPA).

Outside Cabinet, this is known about only through leaked documents because the negotiations are secret. Only a select few know whether the TPPA will include strong protections for intellectual property rights, or whether there will be exemptions for public health legislation.

Many may be sighing in relief at the recent Australian High Court decision, but the battle is far from over. Philip Morris says legal questions have not been fully explored and has vowed it will ultimately prevail over plain-packaging restrictions.

We can expect more legal action and strong-arm tactics, and even governments can struggle to take on the financial might of Big Tobacco in the courts.

Our government has made a very strong commitment to a smokefree Aotearoa by 2025 with a laid-out plan of progressive smokefree legislation. Already, smoking rates have fallen below 20 per cent and are continuing to fall in all age groups. The tobacco industry's newfound aggression indicates this legislation is and will be effective at reducing smoking and its health effects.

Should you be concerned that the government might be negotiating away its democratically appointed powers behind closed doors and putting public health policy at risk? You should be very concerned. Your health should not be for sale.

Philip Pattemore BHB, MB, ChB, MD, FRACP is associate professor of paediatrics at the University of Otago's Christchurch campus.

- NZ Herald

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