Plain Packaging in the UK: Second Consultation

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On 26 June 2014 the UK Government published a second Consultation on the introduction of regulations for plain (standardised) packaging of tobacco products to run for six weeks until 7 August 2014.

Image of proposed plain packs from UK Government website

To explain how the policy would work, the consultation included a set of draft regulations with the rules for the packaging of cigarettes and hand-rolling tobacco, as well as requirements for the appearance of individual cigarettes. Alongside the consultation, the Government also published an illustration (see image) of what plain packs would like, a further consultation-stage impact assessment and an equality analysis. The impact assessment analysed the anticipated costs, benefits, and impact of the proposed draft regulations, concluding that there is no net cost associated with the legislation. The equality analysis explored the potential of plain packaging legislation to promote equality within the UK and concluded that plain packaging legislation would likely promote public health and minimise health inequalities in the UK.
The consultation was open to anyone with an interest in plain packaging, with the Government asking “in particular, for views on anything new” since the last full public consultation, which took place between April and August 2012.1

Industry Arguments

In June 2014, the Government also published the 2,444 much-awaited detailed responses to the 2012 consultation.
Prior to this, the Tobacco Control Research Group analysed the evidence submitted by the tobacco companies in their submissions to the 2012 consultation and concluded that the arguments put forward by tobacco companies against the public health benefits of plain packaging are “largely without foundation”.
The study suggests the collective argument put forward by companies that plain packaging would ‘not work’ is based on misuse and misrepresentation of published evidence on plain packaging and is “highly misleading”. 2
Examining evidence supplied by British American Tobacco (BAT) and Japan Tobacco International (JTI), the authors found that the companies repeatedly misquoted studies that supported plain packaging, distorting their main messages. In addition, they commissioned academics who subjected many of these studies to a ‘mimicked’ version of scientific review, using unscientific methods and dismissing every single one as flawed, despite the fact that the studies were published in peer-reviewed academic journals.
The companies also sought to deflect attention away from packaging by promoting an alternative body of evidence while withholding their own research on the impact of packaging on cigarette consumption. Industry documents previously made public indicate that packaging: is a key element of tobacco marketing; is used to increase product appeal to targeted groups, including young people; and can misleadingly suggest that certain products have lower health risks than others.
In the UK, the Moodie Systematic Review of the available evidence on the potential impacts of plain packaging concluded in 2012 that there was strong evidence to suggest standardised packaging would reduce the attractiveness and appeal of tobacco products and increase the effectiveness of health warnings.3
In spite of this, in the UK, further to a four month public consultation and 11 months of deliberation on the topic, the Government decided it would adopt a ‘wait and see’ approach to observe the experience in Australia of standardised packaging. Parliamentary debates and media statements indicated that doubts over the evidence were the main reason for the Government’s hesitance.4

Why the Delay?

The publication of the draft regulations in June 2014 raised hopes that plain packing would be approved in the UK before the May 2015 general election. However, it was known that this would have to be a very tight turn around. After the six-week second consultation period on the draft regulations, the regulations would have to be approved by the EU Member States before they could take effect, a process which can take up to six months. Given this, plain packaging, if introduced in the UK, was not anticipated to come into effect prior to Spring 2016.
CancerResearch UK urged the Government to move quickly, pointing at the recent Australian Government Department of Health figures that revealed a significant five per cent drop in cigarettes sold per head of population in the first year after plain packs were introduced in December 2012.5
The Smokefree Action Coalition (SAC) also welcomed the draft regulations, but stressed in a 26 June 2014 press release that time was running out and stressed the need for vigilance against industry interference that could cause further delay:

“The tobacco industry is gearing up for a last ditch fight against the Regulations, hiring agencies to get emails sent to the Prime Minister, and publishing misleading and false claims about how the policy has worked in Australia , and about the effect of the policy on the illicit tobacco trade. But standardised packaging remains popular with the public.”6

The CAS press release went on to explain: FOREST, which receives virtually all its funding from BAT, JTI and Imperial Tobacco, have hired the marketing agency Kreate to collect “digital signatures” for the Hands Off Our Packs petition to the Prime Minister. Kreate describes itself as “an experiential agency that specialises in the delivery and staffing of face-to-face experiences”. Agencies had also been commissioned directly by BAT to run a six week, “anti-plain packs roadshow”, which aimed to sign up 100,000 people to oppose plain packs. A Bulletin to the All Party Parliamentary Group on Smoking and Health revealed that the company is reported to have allocated £500,000 to the activity. It revealed that over 100 people a day were to work on this campaign. 7
The tobacco industry in Australia reported an increase in tobacco sales from 21.015 billion cigarettes in 2012 to 21.074 billion in 2013, and claimed that this showed plain packaging was not working. Although the industry reported a small (0.28%) increase in sales year on year, it failed to report the increase in the Australian population between 2012 and 2013. Adjusted for population, tobacco sales per person fell, from 920.4 cigarettes in 2012 to 906.9 in 2013.8
A potential increase in illicit trade was continuously brandished as a reason to delay the regulations. KPMG data from Australia

purported to show an increase in illicit

in Australia following the introduction of plain packaging legislation. However, KPMG were heavily criticised for their methodology by the Cancer Council Australia.
The Chantler review concluded that plain packaging need not increase the illicit trade in tobacco. All the key security features on existing packs of cigarettes would also be present on plain packs (including coded numbering and covert anti-counterfeit marks). Andrew Leggett, Deputy Director for Tobacco and Alcohol Strategy at HM Revenue and Customs has said about plain packaging that “We’re very doubtful that it would have a material effect counterfeiting and the illicit trade in tobacco”.9 Furthermore, the Australian Government and customs officials have rejected tobacco industry claims that illicit trade in Australia has risen since the introduction of plain packaging10 and peer-reviewed research supports this position .11
See also: Plain Packaging: Have Illicit Levels Risen in Australia?

Public Support for Plain Packaging

An online YouGov poll conducted for Action for Smoking and Health in March 2014 found that in a weighted representative poll of 12,269 adults in Great Britain (GB), 64% supported or strongly supported plain packaging, with only 11% opposed to the measure.
Another YouGov survey published in June 2014 shows just over one in 10 adults trust the tobacco industry’s plans on how to cut smoking rates. Nearly two-thirds (64%) said they would not trust tobacco industry arguments on smoking prevalence reduction.12

Third Party Opposition During the Second Consultation

For information on parties and organisations that have been vocal during the six week consultation period, see:

What Happened After the Second Consultation?

As part of the EU notification process which started on 29 August 2014, the EU had six months, up until 2 March 2015, to consider eleven detailed responses received from other EU member states on the regulations (namely Bulgaria, Czech Republic, Greece, Hungary, Italy, Lithuania, Poland, Portugal, Romania, Slovakia and Spain.) 1314

Government Assurances of Moving Ahead With Plain Packaging

The government has the power to introduce plain packaging regulations under Section 94 of the Children and Families Act 2014. All members of the House of Lords voted in favour of the measure and only 24 MPs in the House of Commons voted against it. 15
On the 25 November 2014 Health Minister Jane Ellison stated “we are minded to move forward on this packaging, and we want to make progress.”16
Somewhat contrasting to her prior statements, on 16 December Ellison responded to a Parliamentary question about the introduction of plain packaging with less certainty:

“The Government has not yet made a final decision on whether to introduce standardised packaging of tobacco products. The Government continues to consider carefully all issues relevant to the introduction of standardised packaging of tobacco products and a decision will be taken in due course. The United Kingdom notified the draft regulations under the EU Technical Standards Directive (Directive 98/34/EC). Pursuant to this Directive, the regulations cannot be made until after the notification ‘standstill’ period has ended on 2 March 2015. If the Government does decide to proceed with standardised packaging, a decision will then be made as to the appropriate Parliamentary timetable for the proposed regulations.”17

An ASH policy briefing outlined the timely steps that needed to be taken in order for the regulation to be passed before May 2015:

a.Consideration of the Impact Assessment on the Regulations, by the Regulatory Policy Committee. The Committee expects to report to the Department of Health by Wednesday 24th December

b.Cabinet decision on Regulations through Home Affairs Cabinet Committee, chaired by Deputy Prime Minister (Nick Clegg MP). The write round for Cabinet clearance via correspondence must start by Wednesday 14th January, as the process lasts at least six working days.

c.Home Affairs Cabinet Committee decision, by Wednesday 21st January

d.Regulations MUST be laid in Parliament by Friday 23rd January

e.Parliament’s Joint Committee on Statutory Instruments must receive Regulations by Monday 26th January, for consideration on Wednesday 4th February

f.Regulations must be considered by the Secondary Legislation Scrutiny Committee (SLSC), which meets on a Tuesday. This usually happens two to three weeks after Regulations are laid, so most likely on Tuesday 10th February

g.Latest date for SLSC to publish its report: Thursday 26th February

h.Monday 2nd March: end of EU notification period

i.Tuesday 3rd March: first date for Parliamentary vote

j.Thursday 26th March: last sitting day of this Parliament.

Throughout the debate, the tobacco industry aggressively lobbied the UK government against the regulation . The industry disingenuously misused evidence to suggest that plain packaging does not work by promoting a statistically insignificant finding as proof that youth smoking rates in Australia increased following the introduction of the policy in December 2012.181920
In December 2014, nearly 4,000 public health professionals signed an open letter, sent to both the Prime Minister and the Health Secretary, insisting that plain packaging regulations be approved before the forthcoming election. The authors of the letter warned: “More than half a million children have taken up smoking since the government first announced it would consult on plain standardised packaging of cigarette packs in 2011, and every day hundreds more join them.”21
In the letter, the government explanation that little can be done until the six-month European Commission notification period is complete is described as an “excuse for further delay” and a “complete red herring.”
MPs also voiced similar concerns over the delays to implementation and underlined the urgent need to move forward with passing the regulation.22

UK Government Announces Backing of Plain Packaging

On January 21, 2015, the UK Government announced it would proceed with plain packaging legislation subject to a Parliamentary vote.23 Explaining the Government’s support, Ellison said:

“Having considered all the evidence, the Secretary of State and I believe that the policy packaging is a proportionate and justified response to the considerable public health harm from smoking tobacco. The Chief Medical Officer has confirmed this view.

I now propose that we lay regulations for standardised packaging in this Parliament to allow for them to come into force at the same time as the European Tobacco Products Directive in May 2016. In doing so we would be bringing the prospect of our first smoke-free generation one step closer.”

Ellison said a timely free vote would be open to MPs in both Houses allowing the legislation to come into force before the General Elections if voted through.

Reiterated Public Support for Plain Packaging

On the same day the UK Government made its announcement, Cancer Research UK (CRUK) released the latest figures from a survey of 1800 British Adults revealing that 72% were in support of plain packaging across a broad political spectrum (75% of both prospective Conservative and Labour voters, 80% of Liberal Democrats and 64% of UKIP supporters supported the measure).24 Only 15% were opposed.

Plain Packaging Legislation Passed in the UK Parliament

On Wednesday 11 March 2015, MP’s in the House of Commons voted in favour of plain packaging (367 for and 113 against). The measure was broadly supported by Labour and Liberal Democrats with opposition coming from Conservative representatives.25 The legislation was subsequently accepted into the House of Lords on 16 March 2015 and will come into effect on 20th May 2016 alongside the EU Tobacco Products Directive.26
When plain packaging regulation was introduced in Australia in 2012, the tobacco industry launched an expensive legal campaign against the measures; the claims were dismissed by the High court and costs were awarded in favour of the Australian government.27 Australia also won a claim made by Philip Morris International (PMI) under The Australia – Hong Kong Bilateral Investment Treaty in December 2015. Results of legal claims made under the auspices of the World Trade Organization are pending.
Despite these threats, legal opinion commissioned by ASH and Cancer Research UK, published in May 2015, found that plain packaging laws proposed in the UK were in line with EU law regarding trademarks and fundamental rights and concluded that tobacco companies would not be entitled to compensation where countries introduce legislation to protect public health.28

Tobacco Industry Launches Legal Campaign Against UK Government

PMI and BAT filed separate lawsuits against UK plain packaging legislation on 22 May 2015.29 The cases were taken against the British Government for projected losses in income, subsequent to the legislation. The tobacco companies argued that plain packaging breached intellectual property and was in violation of UK and European Law. Lawyers for the companies drew on a PMI commissioned legal opinion from Lord Hoffman, a former senior Appeal Court judge.3031
Deborah Arnott, Chief Executive of ASH, responded to the tobacco companies’ legal campaign against plain packaging:

“The tobacco industry knows it has little or no chance of winning but by threatening legal action it is trying to stop the infection spreading to other countries. Standardised plain packaging threatens the profitability of the industry and they are desperate to prevent other countries from following the example set by Australia, the UK and Ireland.”32

On 26 May 2015, JTI, which holds the second largest share of the UK market,33 joined the legal battle and filed High Court action on the basis that plain packaging measures infringed the UK’s obligations under World Trade Organisation rules. D aniel Torreas, Managing Director JTI UK, claimed that “plain packaging will infringe fundamental legal rights without reducing smoking. Despite the lack of evidence that plain packaging works, the Government has decided to proceed and JTI must now protect its rights in the courts”34
Despite legal claims, there is extensive research to suggest that plain packaging has been successful in Australia, where it was introduced in 2012.35 36 37 38 39

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  1. Department of Health Consultation on the introduction of regulations for standardised packaging of tobacco products, 26 June 2014. The summary report of the 2012 consultation was published in July 2013.
  2. S. Ulucanlar, G. J. Fooks, J. L. Hatchard, A. B. Gilmore, Representation and Misrepresentation of Scientific Evidence in Contemporary Tobacco Regulation: A Review of Tobacco Industry Submissions to the UK Government Consultation on Standardised Packaging, PLOS Medicine, 25 March 2014, accessed June 2014
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