ASH Scotland: polite disagreement over plain packaging

Admittedly the Scotsman's reasoning was a little flawed in this report, which begins:

POLICE fear smuggling counterfeit cigarettes could become easier if the Scottish Government introduces plain packaging as a way of tackling smoking.

and continues:

However, they stopped short of saying it will trigger an increase, saying there is no hard evidence to support that. [emphasis added, here and above] 

It is not credible to suppose that if conditions for smugglers are made easier, they will not increase their activities. This is wayward report writing, and Sheila Duffy is right (to some extent) to be critical of it. If all the police say is that plain packaging will not put smugglers off, the headline of a report on the police view should not say that plain packaging is a 'smugglers' charter'. The report goes on:

It follows a poll of England and Wales officers which found that almost nine out of ten believed the change would lead to a rise in smuggling and counterfeit packets.

“It is likely that the production of counterfeit cigarettes will probably be made easier by less attention to packaging, and by that logic those already involved will probably seek to continue,” the SCDEA said.

As if anyone imagined that the introduction of plain packaging would persuade anyone to stop smugglers' involvement in the trade. This seems a very cautious assessment from the Scottish Crime and Drug Enforcement Agency.

ASH Scotland has taken initiatives in fighting illicit tobacco in the past, such as organising this conference in 2010, in which SCDEA participated. (It seems necessary in terms of their PR to be seen to care about the impact of illicit tobacco in the light of their policies; but it also seems a little disingenuous since they don't want people to use the genuine article either. They won't tell people to support their local shop, or to buy genuine tobacco rather than fund criminals in the black market.)

Sheila Duffy offers a resoundingly ineffective argument to counter the assumption that plain packaging will increase smuggling:

That this represents a “smuggler’s charter”, as your headline suggests, is also a well-worn yet unfounded response by the tobacco industry. Enforcement officers use hidden markings that are hard to copy to check whether packs are illicit.

After threatening tobacco smugglers with hidden markings that can be detected only by equipment that is used by enforcement officers, she then goes on to discuss penalties for smuggling and promoting her organisation's policies more generally. She has said actually nothing to suggest that the 'hidden markings' on brand packaging will stop smugglers from taking advantage of the removal of brand packaging.

Counterfeit tobacco no more dangerous, says ASH

Defending plain packaging, Graham Jones MP hosts a piece from Action on Smoking and Health declaring that counterfeit tobacco is no more harmful:

The Transcrime report argues that ‘counterfeit tobacco products have been proved to cause even more serious damage to human health’ than legal cigarettes. This is simply not true, indeed research by the Canadian government has concluded that contraband tobacco poses the same risk of harmful health effects as legal cigarettes. All smoked tobacco contains thousands of toxic substances many of which are carcinogenic. All smoked tobacco products are deadly.  

Without getting into detail it is hard to see how anyone can talk about 'counterfeit tobacco' as if it were a single commodity. The author seems to use the terms counterfeit and contraband interchangeably, and while it is a fair bet that much tobacco ticks both boxes they are not necessarily the same thing.

Contraband is black market: illegally traded. It is a legal product on which tax has been evaded. It may also be counterfeit (illegally produced) but need not be.

Tobacco is a regulated product. This means that its ingredients are controlled. Counterfeit tobacco imitates a legal product but its contents are – who knows what?

The Canadian government source that this piece uses does not use the word 'counterfeit'. It discusses contraband tobacco and concludes rather pointlessly that its health effects are the same as those for legal tobacco, which is rather like comparing apples with apples. It stands to reason that legally traded tobacco and illegally traded tobacco will have comparable health effects, because they are essentially the same product.

There is no evidence that the tobacco under discussion is illegal – counterfeit. Even if there were evidence that the tobacco tested by the Canadian government in this particular report were 'only' as dangerous as legitimately traded tobacco, this result would not apply to all tobacco. The whole point of branding is that a particular combination of ingredients and preparation methods earns a trade mark, and can be identified. By definition this feature is absent from counterfeit tobacco. 


It is hard not to conclude that ASH has failed to grasp any of the safety concerns about plain packaging, and even that its bosses have failed to grasp the point of branding. Any of Mr Jones's constituents in Haslingden and Hyndburn feel like pointing this out?

NZ Chest surgeon thinks banning tobacco would eliminate black market

This surgeon cites the black market as the reason that a $100 dollar pack will not stop people smoking. The only real option is to ban tobacco.

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US Chamber of Commerce and others issue statement opposing plain packaging

Major business interests in Washington have issued an important statement on the implications of Australia's plain packaging policy, and expressed their opposition to this policy.

Although many people appear to feel that the tobacco industry's indignation about plain packaging demonstrates how important plain packaging is in the fight against tobacco, it would appear that the tobacco industry is not alone in its concern for intellectual property in general and the likely benefits to rogue tobacco traders. Two extracts:

However, plain packaging risks establishing a precedent of intellectual property destruction for an entire industry through government mandate that would be very damaging to the legitimate interests of trademark owners to associate their brands with their products, a fundamental protection under trademark law

and:

Moreover, we have genuine concerns that plain packaging will incentivize further the already growing incidence of counterfeit, smuggled and other illicitly traded goods being sold in Australia. There can be little question that plain packaging will make it easier for contraband or counterfeit products to enter the market. This will augment the inevitable downward pressure on prices of legally sold goods when brands are undermined and the market moves toward commoditization. The economic incentives to avoid the legal system will overwhelm any enforcement effort detailed in the legislation. As a country that has supported the Anti-Counterfeiting Trade Agreement (ACTA), Australia should be particularly concerned about these consequences.

 Simon Chapman, professor of public health at the University of Sydney, tries to explain how plain packaging will indubitably help. I find his logic hard to follow:

Profitability in the tobacco industry today rests largely on high-priced premium brands, which are able to attract higher retail prices purely on the strength of branding and pack image. If all packs will look the same, many smokers will wonder why they should shell out far more for a pack that looks the same as every other brand except for brand name and that internal tobacco industry research shows cannot be distinguished from cheaper brands in blinded smoking experiments. The illusion that premium brands are “better” will evaporate, and much profitability with it.

The result of this will surely be falling prices – not an outcome advocated by anti-tobacco activists in general. Chapman is confident that Australia is on top of illicit tobacco, but while it is true that Australia is less exposed than Canada, for example, there is still an issue with illicit tobacco and those involved tend to have an opportunistic streak that would likely be excited by a legitimate-industry-busting initiative like plain packaging.

The Chamber of Commerce and its allies in this statement have made an important case. Brand protection is a guard against cheap imitation, and health authorities that were really interested in health would not attempt to destroy it. Insofar as it represents an attack on intellectual property, the proposed plain packing measure is a dangerous precedent that threatens the benefits of brand packaging not just for tobacco but for any other line of products. Legality brings with it rights and obligations, and brand protection should not be removed from tobacco – or why did we ever bother with it in the first place?

Just take their profits

You can tell just by reading it that the authors of the Tobacco Control Blog run by the British Medical Journal have a narrow focus on life. This month Luka Solmajer recommends ways to reduce the profitability of the tobacco industry worldwide. He recommends taxing the industry over 90 per cent of its profits, the proceeds to be invested in health care and social services in order to right the wrongs done by tobacco. (Social services?) And of course the beauty of mechanisms such as the Framework Convention on Tobacco Control is that such tactics can be employed globally.

What could happen if a country decided to do as specified above and really make tobacco unprofitable? There would be huge opposition from the industry, but then the companies would stop their activities and go elsewhere, where they will still be able reap the profits. But once other countries do the same, they will have nowhere left to go. Millions of people will live longer and healthier lives. [Emphasis added]

He also surmises:

I strongly believe this is the equivalent of making tobacco products illegal, without actually doing so. The only counterargument I can think of is the threat the toxic tobacco industry will make about the emergence of black markets and counterfeit cigarettes, but this is only a potential problem there are very effective measures to prevent it. And even if there would be a flourishing black market for cigarettes, it would never be as large and as a harmful as the present state.

Discussion invited: 'What do you think? Will governments be willing to adopt such a system? Will it lead to fewer smokers?'

I think Mr Solmajer is well off the mark thinking that a lid can easily be put on the demand for tobacco, especially if it is cheap and illegal, and especially in times of economic austerity. I also think a 90 per cent tax is far less likely to be applied in countries with a heavy reliance on export tobacco.

Guaranteeing funding for health care from tobacco industry profits (even supposing the tobacco companies could not fight such a tax rate in the courts) also creates reliance on the tobacco market for these funds, which is not in the interests of tobacco control. Tobacco companies may not be allowed to sponsor sports clubs directly, but what will be the difference if it is known that their profits fund healthcare and social services? Your doctor might start recommending Camels again! It is already known that the governments can't afford to lose the tobacco industry, but surely the answer is not to direct all its profits into essential services. A loss in market strength would then damage the services.

Another problem with this idea is that is highly prejudicial. Tobacco may be injurious to health but is it really more injurious than countless other commodities (junk food, alcohol, armaments, prescription drugs to name a few). Singling out tobacco does not say that tobacco is more dangerous than these other products: it merely speaks to the strength of the lobbying groups campaigning on tobacco. Can we imagine a world where no one was allowed to profit from the sale of armaments or oil? No, because these commodities are far too important to the stability of governments. Prescription drugs? What if no one were allowed to profit from the production and sale of medicines? Would health care improve? What of banking profits?

Companies dealing in commodities like oil, armaments and even drugs cannot be pushed into giving up their profits, even though their profitability can work against the common weal. Can tobacco companies? And if tobacco companies were forced out of business, where would those evildoers who are employed by tobacco companies put their skills to use? And would people stop smoking regulated tobacco when tobacco companies go out of business?

I think Mr Solmajer should apply himself to a different problem.