Philip Morris’ Regulatory Litigation Action Plan Against the Display Ban

A confidential Philip Morris International (PMI) document leaked to the SmokinGate website, revealed the company’s “Regulatory Litigation Action Plan,” as part of its plan to defeat the UK government’s Point of Sale Display Ban (POSD).

Also see Philip Morris’s PR Campaign Against the Display Ban

Background

The document noted:

On November 13, 2009 the Health Bill issued by the Labour government received Royal Assent to become the Health Act for England, Wales and Northern Ireland. In addition the DoH (Department of Health) issued in February its tobacco control White Paper “A SmokeFree Future” identifying the Government’s intention to “examine the evidence base regarding ‘plain packaging’… but also give weight to the legal implications”.

The detailed regulations defining the POSD ban were confirmed by its Report on the Consultation on February 23, 2010 and tabled in Parliament on March 2010. The regulations will be tabled for a 40 day period whereupon they will be enacted into law, likely to be on April 10th … The tabling of the Regulation means it is now to be considered as final and the timeline for a litigation process has been triggered.

Assumptions Guiding Tactics

It then went on to outline ‘Assumptions Guiding Tactics’:

• “No legislative or regulatory opportunity to mitigate the POSD ban exists between now and the election.
• Although there is some chance of mitigation post-election, our best most realistic option for reversing the ban is through litigation.
• Based on current polling, whatever party wins will have a narrow majority or there will be a hung parliament.
• Retailers are essential to campaign success, so must be parties to the lawsuit and must take the lead in the communications effort.
• Our opponents will be prepared for and anticipate the lawsuit.
• The effort will be complicated by similar legal filings by competitors making the media environment particularly challenging.”

Proposed Strategy and Action Plan

The document outlined the proposed ‘third-party’ strategy:

“Through retailers, leverage the economic focus of the upcoming election to secure our stated objectives, while using the lawsuit as the fulcrum.

Major workstreams included ‘Political Outreach’ and ‘3rd Party Outreach’ to ‘individual retailers’ and ‘retailer associations’ as well as preparing for litigation. The PMI Action Plan included PMI’s PR company Gardant Communications completing a ‘full political stakeholder map’ with a list of MPs or Lords to target. PMI was to draw up a list of Parliamentary Questions on relevant topics, such as ‘illicit trade’ and the ‘impact of POSD ban’.

The plan was also to find retailers who could be ‘co-plaintiffs, including the Leicestershire Asian Business Association. Reactive and proactive messaging for PM and retailers was finalised.

Meetings / phone calls were also planned with ‘trade associations / key accounts to finalise Deliverables and messaging’:

• National Federation of Retail Newsagents
• Association of Convenience Stores
• Confederation of British Industry
• Leicestershire Asian Business Association

The plan also included an ‘engagement plan for 3rd party spokesperson for key messaging and media engagements’ and that ‘3rd party spokespersons to be referred to journalists’. Key stakeholders such as the NFRN and ‘retailer co-plaintiffs’ were to receive media training. As part of this third party strategy, there would be a ‘retailer video to be completed by a trade association’, with ‘at least 6 retailers to be selected’. The video would be used by ‘all stakeholders once completed’.

The plan also included meetings with key PR consultants such as:

• Gardant Communications
• Katie Perrior from iNHouse Communications
• Kevin Gilna Director and CEO of Transatlantic Public Affairs

The plan also detailed preparing and filing a judicial review, including ‘managing legal costs of co-plaintiffs’.

Smuggling

A key strategy for PMI and the industry has been to argue that the POSD will increase cigarette smuggling and counterfeit. PMI wanted to work up an “illicit trade media story”, and with this in mind as part of its 3rd Part outreach workstream planned to talk to “former Police or Customs officers”. The plan included “listing the tools available to combat illicit trade”, including training by the EU- Anti-Fraud Office. Summaries of its smuggling reports for 2008 and 2009, entitled Project Star were produced for the PMI in-house communications team.¹