Plain Packaging Opposition in the UK: 2012 Consultation

Background

In the UK, tobacco companies Imperial Tobacco, Japan Tobacco International (JTI), British American Tobacco (BAT) and Philip Morris International (PMI) have publicised their arguments against plain packaging using:

• their corporate websites;
• political advertising campaigns;
• submissions to the two UK Consultations on plain packaging;
• third-party voices.

The plain packaging of tobacco products was first suggested in Canada, New Zealand, the UK and Australia in the mid-1980s and early 1990s. Tobacco companies and their associates have been working on a defence strategy against the threat of plain packaging since this time. See the TPD: Developing the Intellectual Property Argument for detailed information on the development of this strategy.

Nearly two decades later in 2010, industry analyst Citigroup noted that plain packaging was the “biggest regulatory threat to the industry, as packaging is the most important way tobacco companies have to communicate with the consumer and differentiate their products.” ¹

Tobacco companies are aware of how important packaging is to marketing, especially in countries that do not permit any other forms of advertising. For example, a Philip Morris marketing executive stated in 1994:

“In the absence of any other Marketing messages, our packaging — comprised of the trademark, our design, color and information — is the sole communicator of our brand essence. Put another way — when you don’t have anything else — our packaging is our Marketing.” ²

Taking each tobacco company in turn, this page highlights some key examples of the aforementioned activities particularly during the UK government’s first public consultation on the plain packaging of tobacco products which took place between 16 April 2012 and 10 August 2012. It is not exhaustive.

Imperial Tobacco

In 2011, when the UK government first announced that it would hold a public consultation on plain packaging , Imperial Tobacco held the largest share of the UK cigarette market with 43.1%.³ During the first consultation in 2012, the company engaged in corporate political advertising in an attempt to influence the views of the general public and most importantly politicians.

Attempts to Influence the General Public

Imperial produced a YouTube advert called Britain – 2020 Vision?, which misleadingly suggested that by 2020 all perceptibly unhealthy products would be sold in plain packaging. ⁴ The 2020 Vision advert was promoted on leaflets distributed to the public, with the message “Say NO to plain packs”. The leaflets were not openly attributable to Imperial Tobacco or the Hands Off Our Packs campaign, which uploaded the advert to YouTube (see images 1 and 2).

Speaking in May 2012, Imperial CEO, Alison Cooper, stated that plain packaging would be a gift to criminal gangs and terrorists. Cooper said: “Do we really want to hand business like this to gangs in Eastern Europe funding crime and even, in some cases, terrorists?” Reporting on Cooper’s remarks, The Sun newspaper ran a sensationalist headline (Image 3). It argued that “groups who benefit from such trade include al-Qaeda and Hezbollah.” ⁵ There is no independent evidence that plain packaging will increase illicit trade, increase crime or terrorism.⁶⁷⁸

Attempts to Influence MPs

Imperial also attempted to influence UK MP’s views on plain packaging. The company funded an advert in The House magazine (a weekly political magazine delivered directly to MPs, Peers, and civil servants), whereby the normal cover pages of the magazine were covered with dark brown/gold plain packaging, with a warning message, mimicking those found on tobacco packets, which read, “WARNING Plain Packaging: Bad for business Good for Criminals” (Image 4). ⁹ The double spread cover page did not disclose it was an Imperial Tobacco advertising campaign.

It was only on page 19 of the magazine that a second gold coloured full-page advert explained, in a smaller font than the rest of the text at the bottom of the page and with no explicit link to the cover advert, “This advert has been produced and placed by Imperial Tobacco in association with Asian Trader magazine.”

More information on this advertisement, and the debate that followed, can be found on Imperial Tobacco Promotes Opposition to Plain Packaging.

Imperial Tobacco’s UK 2012 Consultation Response

In Imperial Tobacco’s Submission to the 2012 UK Consultation on standardised packaging, the company put forward the following arguments against the introduction of plain packaging legislation in the UK.

* No credible evidence or research that plain packaging would reduce smoking prevalence

AND, plain packaging will:

* Increase the trade in illicit tobacco;

* Put the government in breach of national, European and international law.

Furthermore it argued that:

* The consultation process was fundamentally flawed;

* Plain packaging goes against the government’s principles and objectives.

Click on thumbnails to enlarge images.

File:Imperial_say_no_1.PNGImage 1: Front of leaflet used to advertise Imperial Tobacco funded anti-plain packaging video
File:Imperial_say_no_2.PNGImage 2: Back of leaflet used to advertise Imperial Tobacco funded anti-plain packaging video
File:Funds terror.JPGImage 3. Imperial scaremongering in interview with The Sun newspaper, 25 May 2012
File:House mag.jpgImage 4: Cover of Parliamentarian The House magazine, June 2012

Japan Tobacco International

In 2011, Japan Tobacco International (JTI) owned the second largest proportion of the UK cigarette market (37.1%). Approximately 24-hours after the British government announced a 4-week extension to the first consultation on plain packaging on 10 July 2012, JTI launched an anti-plain packaging campaign costing £2 million to “share its views”.¹⁰¹¹

According to JTI, this spending was to ensure a wide reach of its messages to JTI’s target audience, “both government and decision makers”. Adverts were included in a number of daily newspapers including The Financial Times and The Guardian (see Image 5 and Image 6).¹² The adverts specifically claimed that the UK government had considered plain packaging previously and had ‘rejected’ the idea ‘when it was found to have no credible evidence’ for success. The adverts appeared online as well as in print (Image 7).

In September and October 2012, a second wave of the JTI campaign promoted the potential detrimental impacts of plain packaging on the illicit tobacco trade with a knock on effect for small businesses. This wave of advertising consisted of full page adverts in The Financial Times, The Times, The Telegraph, The Guardian and the Evening Standard and ran over a two week period. Martin Southgate, then Managing Director of JTI said that this wave of the campaign “was timed to coincide with the party political conference season”, in order to reach an unprecedented number of MPs and opinion formers.¹³ This can be seen as an example of indirect lobbying.

Action for Smoking and Health (ASH) London, ASH Scotland and Cancer Research UK complained to the Advertising Standards Agency (ASA) that the claims made by JTI in both adverts were misleading.¹⁴

On 13 March 2013, the ASA upheld the complaint pertaining to the first wave of advertising.

“We acknowledged the numerous statements regarding the issue of plain packaging which had been provided by JTI, and which they considered demonstrated both that the government had rejected the policy in 2008 and that it had done so because it lacked the evidence to support it. However, although the government had decided not to take forward the proposal for plain packaging in the same way as it did with other measures considered in the consultation, we understood that they had nevertheless intended to keep the measure under review and planned to re-assess it at a later date. We therefore considered that the claims in the adverts that the policy had been ‘rejected’ in 2008 because of a lack of credible evidence gave a misleading impression of the position and action taken at that time by the government and concluded that the adverts breached the code.” ¹⁵

A month later, in April 2013, the ASA ruled that the second set of adverts (September and October 2012) were also misleading. The ASA ruled that JTI could not claim that “the black market in tobacco is booming”. Nor could they claim that the UK had suffered “£3 billion lost in unpaid duty last year”. The ASA noted that this figure was the very upper limit of an estimate of revenue loss by Her Majesty’s Revenue and Customs (HMRC) – in reality the figure was likely to be far lower.¹⁶

HMRC figures show that the illicit market for cigarettes in the UK has more than halved in a decade. The ruling noted that JTI had themselves acknowledged that the illicit trade in tobacco products has reportedly been a declining trend in the last ten years.

Despite the rulings of the ASA against JTI’s first two waves of advertising, later in April 2013, in response to political speculation that plain packaging would be incorporated into the government’s legislative programme and announced in the Queen’s Speech in May 2013, JTI launched a third wave of print advertising (Image 8). This time the advert featured a full page 2011 letter from the UK Department of Health to the Australian government. The letter asked what evidence the Australian government had to support plain packaging legislation. JTI’s Managing Director in the UK Jorge da Motta told Packaging News: “We are using this media campaign to demonstrate that in 2011 even the Department of Health accepted that these proposals are not supported by any hard evidence.” However, JTI did not mention that since the time this letter was penned a considerable amount of plain packaging research was conducted both in the UK and elsewhere.

A 2012 systematic review by the Public Health Research Consortium of 37 studies of the potential impacts of plain tobacco packaging found that when branding is removed from tobacco packaging, health warnings are more salient, packs appear less attractive and of a lower quality and there is less confusion about the relative harm from different brands.¹⁷

In March 2015, a series of studies evaluating the impact of plain packaging in Australia were published in the peer-review journal Tobacco Control. For more a summary of these studies please visit Countering Industry Arguments Against Plain Packaging: No Evidence Plain Packaging Will Work.

File:JTI ad in the financial times.PNGImage 5: JTI advert in The Financial Times, 10th July 2012, p5
File:JTI ad on their corporate webpage.pngImage 6: JTI advert taken from www.JTI.com July 2012 (the advert has since been removed)
File:JTI online Guardian ad.JPGImage 7. JTI anti-plain packaging advert: The Guardian online, 3 October 2012
File:Tobacco-ad-complete.jpgImage 8: JTI advert in The Telegraph, 5 April 2013

JTI UK 2012 Consultation Response

In Japan Tobacco International’s Submission to the UK 2012 Consultation on standardised packaging the company argued that:

* there is no evidence that plain packaging will work;

* the consultation process of the Department of Health is flawed;

* plain packaging will have serious unintended consequences.

To support its arguments JTI attached 12 research reports from “independent experts” along with their submission.

“JTI’s views are based on our experience of how competition between branded consumer goods works, our careful review of the documents forming part of the current consultation, as well as the independent opinions of leading experts, whose reports are being submitted with this response.”(p2)¹⁸

Each of the 12 reports cited in the JTI submission, written by “leading experts” with “independent opinions”, was financially supported by JTI and therefore arguably not independent.¹⁹ This is an example of a well-worn industry tactic of Hiring Independent Experts.

British American Tobacco

In 2011, British American Tobacco (BAT) owned 8.1% of the UK cigarette market.²⁰²¹

BAT’s UK Consultation Response

argued that plain packaging would:

* Not be effective in reducing smoking prevalence as tobacco packaging is not a relevant factors in people’s decision to smoke or quit;

* Exacerbate the significant illicit trade problem in the UK;

* Lower cigarette prices, thereby increasing smoking, reducing government revenue and harming small businesses;

* Breach UK, EU and international laws and agreements and “constitute a wholesale expropriation of BAT’s valuable intellectual property” costing the government significant compensation.

BAT also criticised the Department of Health for not considering the “relevant research”, claiming instead that it relied on insufficient and unreliable evidence and that it has failed to demonstrate that the benefits would outweigh the adverse consequences.

See BAT Funded Lobbying Against Plain Packaging for BAT’s lobbying activities in the UK, Australia and New Zealand, including the its funding of third-party campaigns against plain packaging.

Philip Morris International

Philip Morris International (PMI), the largest transnational tobacco company in the world, owned approximately 8% of the UK market share in cigarettes in 2011. Nevertheless, PMI engaged in extensive lobbying activity in the UK – most notably pushing the so-called “illicit trade” argument.

In 2013, PMI published their annual “Project Star” report (produced by KPMG) several months earlier than it had done in previous years. Given that the results suggested that illicit trade increased by a quarter of the legal market compared to the fourth quarter of 2012, the early publication could be seen as a deliberate attempt to influence the outcome of the consultation. Project Star’s findings were in direct contradiction to official figures suggesting that illicit trade in the UK was decreasing. ²²

Furthermore, the Project Star report was “traditionally agreed with OLAF (EU anti-fraud office) and member states in advance of publication but this year’s 2013 had not been.” ²³
PMI also employed the public relations firm Luther Pendragon to try and create a grassroots rebellion amongst UK MPs, but the PR firm severed its ties with the company following criticism from leading health organisations. PMI replaced Luther Pendragon with a deal with the Crosby Textor Group and lobbyist Lynton Crosby in November 2012. This was an extremely controversial appointment as Crosby had also been appointed as a political advisor to the Conservative Party that very same month.²⁴

Furthermore, leaked Philip Morris International (PMI) corporate presentations from 2012 revealed that the company had meticulously planned an extensive multifaceted public relations campaign against Plain Packaging in the UK, including a highly detailed media campaign, a strategy to mobilise opposition from retailers, and scaremonger about illicit trade and detailed political analysis of the best ways to prevent the implementation of the policy. See below for links to other pages on the leaked PM documents:

• PMI’s Anti-Plain Packaging Lobbying Campaign
• PMI’s “Illicit Trade” Anti-Plain Packaging Campaign
• PMI Mobilised Support from Retailers
• PMI’s Anti-PP Media Campaign
• PMI’s Lobbying Campaign to Undermine the TPD
• Will O’Reilly

PMI UK 2012 Consultation Response

Philip Morris’ Submission to the UK’s 2012 Consultation on standardised packaging argued that:

* The evidence does not meet the standards set by the Department of Health and that PMI only supports regulation proven to be effective in reducing youth smoking.

It, like the other three companies insisted that plain packaging will:

* …not reduce youth smoking and may actually encourage it;

* …not make it easier to quit smoking;

* …increase the level of illicit tobacco in the UK;

* …require the government to compensate tobacco companies, costing taxpayers billions.

Use of Third-Parties in Consultation Responses

Each of the big four tobacco companies presented evidence to support their arguments in their submissions to the plain packaging consultation. This evidence took a number of forms, from peer-reviewed journal articles, to tobacco industry funded reports, to the opinions of trade organisations, MPs and police officers. A significant proportion of the people and organisations cited as independent from the industry had significant conflicts of interest; being either entirely industry-funded front groups or industry-linked through membership fees, research funding or vested interests (e.g. retailers and packaging companies who believe that their business is going to be damaged by plain packaging).²⁵

Use of Third-Party Evidence to Support ‘Unintended Consequences’ Argument

Tobacco companies cited evidence from financially linked third parties to support its arguments that plain packaging would lead to an increase in illicit tobacco trade in the UK with an associated increase in crime and a detrimental impact on small businesses.

Some organisations cited were industry front groups, others were commissioned to write reports at the request of individual tobacco companies and some were lobby groups that listed tobacco companies as fee paying members. In the majority of cases the tobacco companies, in their submissions, did not disclose any links between authors of the evidence and themselves. It should be noted however, that the actual pieces of evidence, for the most part, did disclose the link.

This is a problem when policymakers reviewing each tobacco company’s consultation submission do not know that these individuals and organisations are associated with the industry without further investigation, i.e. looking at each piece of evidence referred to by the tobacco companies. Given the volume of detailed responses to the consultation received by the Department of Health, checking the independence of each piece of evidence would be an extremely time consuming exercise.

The following tables provide details of organisations and people cited in the industry’s 2012 submissions in order of proximity with the tobacco industry. Listed first in alphabetical order are front groups, followed by a list of those paid by tobacco companies to write reports or give opinions, followed thereafter by those with vested interests, for example, packaging companies, trade organisations and lobby groups with tobacco industry members.

The majority of the individuals or organisations listed include a hyperlink to a more detailed page explaining their relationship with the tobacco industry.

Front Groups

Some front groups are likely to be known to policy makers, for example, the Tobacco Manufacturers’ Association, however in many cases affiliations are less intuitive.

Organisation	Funded by	Argument	Cited by
Alliance of Australian Retailers26	PM Limited, BAT and IT27	The Alliance which was entirely conceptualised and funded by tobacco companies in Australia commissioned a report by Deloitte. See Deloitte in the next table.	PMI, JTI, IT
Tobacco Manufacturers’ Association2829	BAT, JTI, IT30	Counterfeit cigarettes account for 13% if the illicit market compared to 1% in 2004. Plain packaging will have detrimental economic impacts as an estimated 66,000 jobs among suppliers wholesalers, distributors and retailers are dependent on the UK tobacco industry.	BAT, JTI
Tobacco Retailers Alliance 31	TMA 32	Small retailers will suffer as increased transaction times send customers to the larger retailers.	BAT

Commissioned Opinions and Reports

Organisation	Commissioned by	Argument	Cited by
Deloitte33	PMI	Visits to small stores will decrease due to an increased demand for illicit tobacco and as well as increased transaction times sending customers to larger supermarkets.	PMI, JTI, IT
Dr Andrew Lilico from Europe Economics3435	JTI	Plain packaging will lead to an increase in price competition and a downward trend in prices, which in turn will lead to an increase in demand.	BAT, JTI
Lord Hoffman	PMI	The UK government may have to pay tobacco companies compensation for “depriving someone of his proprietary interest in a trade mark for a tobacco product…”	PMI
KPMG	PMI	Illicit tobacco is a big problem in the UK costing the treasury £3.1 billion per year.	PMI
Professor Ernesto Savona and Dr Francesco Calderoni at Transcrime36	PMI	Plain packs will increase illicit trade because, 1) plain packs will be easier and cheaper to counterfeit, 2) Consumers may prefer illicit branded packs over unbranded legal products, 3) tax increases in response to price competition may drive consumers to the illicit trade.	PMI, BAT
Professor Alan Zimmerman and Professor Peggy Chaudhry37	JTI	Plain packaging will create opportunities for illicit traders and make it more difficult for law enforcement and consumers to differentiate been legitimate and illicit products.	JTI

Vested Interests

Organisation	Connection with Industry	Argument	Cited by
Anti-Counterfeiting Group (ACG)3839	Tobacco industry are fee paying members of the ACG.40	Plain packs will ‘open the floodgates’ to branded illicit packs and at the same time plain packs will be easier to counterfeit and more difficult to detect.	BAT, PMI
Association of Convenience Stores (ACS)41	Tobacco companies are members of the ACS.42	Plain packaging will lead consumers to buy illicit branded packs. “The result would be more consumers placed at the mercy of unscrupulous criminals that run the black market…”	BAT, JTI
Business Action to Stop Counterfeiting and Piracy (BASCAP)43	BAT disclosed on the EU Transparency register 2013 that it is a member of BASCAP.44 See also International Chamber of Commerce.	Plain packaging will make counterfeiting easier and it will “increase the burden on already overstretched public agencies as they try to keep illicit products away from consumers.”	BAT, JTI
British Brands Group4546	Big four are fee-paying members of the British Brands Group.47	PP would set a precedent and put off companies looking to invest in the UK this would have an adverse impact on the economy. Furthermore, the impact on the illicit market will be huge.	BAT, PMI, JTI, IT
Confederation of British Industry (CBI)	Industry are members,48 BAT’s ex-CEO Martin Broughton had close ties with the group and became its president between 2007 and 2009.49	Plain packaging would set a precedent and put off companies looking to invest in the UK this would have an adverse impact on the economy. Furthermore, the impact on the illicit market will be significant.	IT
European Carton Makers Association (ECMA)5051	Receive tobacco industry business.52	BAT is a member of the ICC. Philip Morris International is listed as a member of the ICC’s American affiliate the US Council for International Business.53	PP would set a precedent and put off companies looking to invest in the UK this would have an adverse impact on the economy. Furthermore, the impact on the illicit market will be huge.	BAT, JTI, IT
International Tax and Investment Center (ITIC)54	Tobacco industry are fee paying members of the ITIC.55	Illicit cigarettes are smuggled by criminal gangs who operate in our local communities. These gangs also bring smuggled alcohol, guns, drugs and violence. “The man on the corner selling cigarettes to kids from the boot of his car is not acting alone – his sales fund serious organised crime and terrorism.	PMI
National Federation of Retail Newsagents (NFRN)5657	Received industry funding for an anti-point of sale display ban campaign.58	Price competition resulting from plain packaging will disproportionately affect small retailers who rely more on the profit.	BAT, IT
Nude Brands Consulting Limited59	JTI is a client. JTI does disclose this in its submission to the consultation.	JTI accounts for approximately 75% of Nude Brands’ business.	JTI
Parkside, Chesapeake, Weidenhammer Packaging Group, Amcor, API Group60	Receive tobacco industry business.	Plain packaging will undermine the legitimate economic interests of packaging companies.	BAT,JTI, IT
Roy Ramm,61 Former Commander of Specialist Operations for New Scotland Yard, Founding Member of The Common Sense Alliance.	BAT provides financial support to The Common Sense Alliance.62	Plain packaging will increase organised crime and children will be buying branded packets from criminals.	PMI
Scottish Grocers’ Federation63	Given that we already have a Point of Sale Display ban plain packaging is “an absurd example of over regulation”.	BAT
Peter Sheridan, Former Assistant Chief Constable of Northern Ireland,64 Founding Member of The Common Sense Alliance.	BAT provides financial support to The Common Sense Alliance.	Plain packaging will open the floodgates to illicit whites and make life easier for criminals.	PMI

TobaccoTactics Resources

See Countering Industry Arguments against Plain Packaging for the public health counter arguments to the company arguments above.

TCRG Research

• For a summary of relevant peer-reviewed research, see Tobacco Control Research Group: Evidence on Plain Packaging
• ‘It will harm business and increase illicit trade’: an evaluation of the relevance, quality and transparency of evidence submitted by transnational tobacco companies to the UK consultation on standardised packaging 2012, K. Evans-Reeves, J. Hatchard, A. Gilmore, 2015, Tobacco Control, 24(e2), e168-e177, doi:10.1136/tobaccocontrol-2014-051930
• International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership, G. Fooks, A. Gilmore, 2014, Tobacco Control, 23(1), e1, doi:10.1136/tobaccocontrol-2012-050869
• A critical evaluation of the volume, relevance and quality of evidence submitted by the tobacco industry to oppose standardised packaging of tobacco products, J. Hatchard, G. Fooks, K. Evans-Reeves, S. Ulucanlar, A. Gilmore, 2014, BMJ Open 4(2), e003757, doi:10.1136/bmjopen-2013-003757
• Representation and Misrepresentation of Scientific Evidence in Contemporary Tobacco Regulation: A Review of Tobacco Industry Submissions to the UK Government Consultation on Standardised Packaging, S. Ulucanlar, G. Fooks, J. Hatchard, A. Gilmore, 2014, PLOS Medicine, 11(3), e1001629, doi: 10.1371/journal.pmed.1001629
• How do corporations use evidence in public health policy making? The case of standardised tobacco packaging, J Hatchard, K. Evans-Reeves, S. Ulucanlar, G. Fooks, A. Gilmore, 2013, Lancet, 382(s3), S42, doi:10.1016/S0140-6736(13)62467-8