TPD: Delaying the Process of Consultation

From September to December 2010, the European Commission held a public consultation on the possible revision of the Tobacco Products Directive 2001/37/EC. The EU Tobacco Products Directive Revision (TPD) is the piece of legislation that regulates tobacco products in Europe. To learn more about the TPD, and why it is currently being revised, please visit EU Tobacco Products Directive Revision.
The TPD consultation attracted the highest response rate known to EU-level public consultations to date, with a total of over 85,000 responses. On average, EU public consultations receive about 350 responses. Analysis of the responses suggested that the largest number of contributions originated from the tobacco industry and its allies, whose objective was to undermine the TPD, or as leaked Philip Morris International documents state, to “block DG SANCO’sdepartment leading on the TPD revision extreme policy options in the TPD proposal”¹.
The sheer volume of responses significantly delayed the review process. Originally due by the end of 2011,² the Commission’s proposal for a revised TPD was postponed to ‘after the summer of 2012,’³ and was not publicly presented until December 2012. As the current term of the EU Parliament ends in May 2014, advocates have been concerned that any delay will, as the tobacco industry intends, stall the TPD and will leave the status quo in place for years.
The tobacco industry has a history of delaying regulation, and organising a high number of responses to a consultation is an essential element of an effective tactic to delay tobacco regulation.
The extent to which the industry has deployed this and other tactics was documented by the World Health Organisation (WHO) in their 2009 report Tobacco industry interference with tobacco control.⁴

Flooding the public consultation with tobacco-friendly responses

The following is a summary of the findings from the report on the public consultation on the possible revision of the Tobacco Products Directive(2001/37/EC), published by the European Commission in August 2011, which concluded that “No previous public consultation launched by the European Commission had ever registered such significant participation”. [REF]Health and Consumers Directorate-General – Directorate D – Health systems and products D4 – Substances of human origin and Tobacco control, Report on the public consultation on the possible revision of the Tobacco Products Directive (2001/37/EC), July 2011, accessed February 2012[/ref]

Overall, the public consultation generated:

* over 85,000 responses via the online form;

* around 300 letters and pieces of background material sent to the Directorate-General for Health and Consumers (DG SANCO), via the functional mailbox created for the consultation;

* a large number of letters sent to Commissioner John Dalli, as well as to other Commissioners and their services;

* 10 petitions from citizens, retailers, traders, wholesalers, trade unions and gas station owners. In total these petitions counted for around 18,650 signatures.

The Report confirmed that the high volume “appears to be a result, to a large extent, of several citizen mobilisation campaigns that took place in some Member States.” It identifies the following methods of mobilising and encouraging participation in the consultation process:

* producing websites providing detailed information and guidance on how to participate;

* establishing a free telephone hotline for answers to questions regarding the consultation;

* producing and distributing videos via YouTube about the need to limit changes to tobacco product regulation and tobacco control policy;

* several citizen mobilisation campaigns.

One such campaign was organised by a group representing over 75% of Italian Tobacconists. The action resulted in personal signatures of over 30,000 tobacconists across Italy. However, 99% of Italian submissions consisted of duplicate responses. And these were not the only ones:

The actions and efforts of these campaigns and their ability to mobilise citizens seem to have affected the overall results of the public consultation. As a result there were a significant number of pre-programmed responses to the public consultation. When searching for duplicates and ‘form’ responses, 46,792 files were identified; about 57 % of all citizen responses.

The Commission received 2,320 contributions openly identifying themselves as industry representatives. The report emphasises the limitations in verification: many respondents did not include information about the organisations they represented:

From the e-mail addresses of these contributors, the vast majority of the submissions within this category appear to be from private persons and retailers. Other stakeholders included in this category were organisations representing manufacturers’ entrepreneurs, trade chambers, retailers, grocers, etc. Most responses under this category came from Poland, Italy, the United Kingdom, and Germany.

The following table details the number of responses, percentage of duplicates, and percentage of total responses, indexed by country.

The fact that almost two-thirds of the responses came from only two countries: Italy (31,336) and Poland (23,711), was attributed to the popularity of petition campaigns.

Philip Morris Leaked Documents: Majority of Consultation Responses “Known” to Company

An internal Philip Morris International (PMI) PowerPoint presentation, leaked to the public in September 2013, includes a graph which illustrates the number of responses to the TPD public consultation over time (see Picture 1)⁵. The green part, the majority of the consultation responses, represents those “known” to the company. Although only 2,320 of 85,000 submissions openly identified themselves as originating from the industry, this graph shows that more than 70,000 submissions were known to PMI, suggesting that a much larger proportion of submissions were in some way connected to the industry.

Third party responses: More Industry Influence?

Despite delaying the consultation process considerably, the hand-processing of the responses provided useful and detailed analyses of respondents, and possibly offer lessons for future consultations.

Those making a submission to the consultation were allowed to identify themselves as either Citizen, Government, Industry or Non-governmental Organisation (NGO). The Report makes clear that this system of self-classification does not really work.

:Many of the respondents that classified themselves as ‘government’ appeared to be from private persons working for government bodies which made the process of sub-classifying these responses quite challenging. During the hand-processing stage, it became clear that many of these responses should not have been classified as ‘government’ as in reality many of these respondents were either citizens or represented NGOs.

The sub-classification resulted in a large category of “others”: a group consisting of citizens representing NGOs (a substantial amount of these were from the UK), citizens who improperly classified themselves, and a small selection of unusable responses, with the -intriguing- added note “which included insulting responses.”

While most contributions from NGOs were from the public health sector, many submissions included representatives that seemed to be involved in the tobacco sector, such as tobacco farmers, retailers, manufacturers, trade unions and others.

A quick and superficial scan found that indeed many of the respondents who referred to themselves as NGOs were in fact linked to the tobacco industry, and their allies. For example, Think Tanks such as the industry-linked Adam Smith Institute who advocate for less regulation.

Furthermore, the submission of the BOVAG, the Dutch organisation for quality guarantee of cars and repair garages, pledging for free trade of snus, underlines the need for further analyses of the range of participants.

Industry-friendly Submissions

Adam Smith Institute (recipient of tobacco industry funding) ⁶

Sam Bowman, Research Manager at the Adam Smith Institute submitted a response to the public consultation on the proposed revision of the TPD. Bowman argued that all EU-wide regulations on cigarette packaging should be removed, allowing member states to make their own regulations, and voted against an EU-wide reporting format for tobacco products. In addition, he suggested that the EU ban on snus should be lifted as it ignored “the issues of civil liberties”. Bowman’s submission was also highly in favour of tobacco product innovations, arguing that “tobacco is nonetheless a popular substance that many EU citizens enjoy consuming. Innovations that enhance enjoyment of tobacco should not stifled unless the innovations themselves are directly harmful”.[REF]European Commission, Results of Consultation and Next Steps: NGOs, Excell sheet entry #139, accessed 29/02/2012[/REF]

More delays to the TPD review: DalliGate

The public consultation was not the only time that the revision of the TPD became delayed, just as the tobacco industry intended. Another delay occurred in October 2012 when EU Health Commissioner John Dalli was forced to resign in a ‘cash for influence’ scandal. It was alleged that Mr Dalli was involved in an attempted bribe to lift the European ban on snus, with at the heart of the affair tobacco company Swedish Match. To read more about this affair, dubbed ‘Dalligate’, click here

Relevant TobaccoTactics Resources

Also see the other pages in the section on the Tobacco Products Directive (TPD):

• EU Tobacco Products Directive Revision
• TPD: Pictorial Warnings and Standardised, Plain Packaging
• TPD: Tobacco industry lobbying a violation of Article 5.3
• TPD: Burglaries
• TPD: Dalligate
• Industry Interference and the 2001 EU Tobacco Products Directive

For information from PMI leaked documents on its strategy to delay the TPD and also to prevent plain packaging in the UK please see the following pages:

• PMI’s Lobbying Campaign to Undermine the TPD
• PMI’s Anti-Plain Packaging Lobbying Campaign
• PMI’s Anti-PP Media Campaign

External Sources

• EU, Report on the public consultation on the possible revision of the Tobacco Products Directive (2001/37/EC), July 2011
• WHO, Tobacco industry interference with tobacco control, 2009