Supreme Court hearing for tobacco display ban, Scotland

The latest hearings in the appeal of Imperial Tobacco against the tobacco display ban will be heard next month at the Supreme Court in London. ASH Scotland describes the scene thus:

The UK Supreme Court has set a date to hear the legal challenge by Imperial Tobacco against the Scottish Government’s legislation to ban unstaffed tobacco vending machines and tobacco displays at point of sale. In response Sheila Duffy, Chief Executive of ASH Scotland, said: 

'These public health measures were passed overwhelmingly by our democratically elected Parliament and have twice been upheld by the Scottish courts. 

This is part of a growing international problem. We have heard from partner organisations from Australia to Uruguay that, having lost the battles over scientific evidence and public support, tobacco companies are resorting to delaying valid public health measures in the courts. 

Tobacco kills half of its long-term consumers and Imperial Tobacco should accept the public, political and legal judgements that it cannot be treated like an ordinary product.

I am looking for the Supreme Court to rule against Imperial Tobacco and clear the way for Scotland to implement these important public health measures.' 

She seems to be making a fuss because the courts are being used exactly the way they should be designed to be used: for a company to challenge what it perceives as unfair legislation. But in the eyes of tobacco control a tobacco company that uses the courts in this way is somehow perverse and unreasonable. Her reasoning that tobacco cannot be seen like an 'ordinary product' misses the point that campaigns against other products will gain strength if this one prospers, as we see in the latest embarrassing escapade in the campaign to denormalise alcohol.

She clearly expects a court victory, but one is tempted to conclude that she requires a vote against the tobacco companies in principle, rather than on the legal case presented. That would certainly not be a conclusion that reflected the purpose of the courts: victory should be on legal grounds, not on the basis of whether either side represents tobacco interests.

Plain packaging: ruling expected next week

Look for an announcement Wednesday, says the Sydney Morning Herald. A detailed judgement will not be available immediately but we will know in essence whether the legal challenge has won the day.

Transparency and the lobbying process

This eminently reasonable view emerged from response to a result consultation from the Irish government about the regulation of lobbyists, reported here.

The principles of good governance are compatible neither with calls for exclusion of any relevant stakeholders, nor with the existence, de facto, of a privileged status of any stakeholder in the debate. Where public policy is made having regard to only one side of any debate can sometimes lead to unintended consequences. Fair and equitable access to all stakeholders, who wish their views to be considered, can guard against this and allow Government/Regulators to make a truly informed decision. 

The response comes from John Player. Unsurprisingly it refers to the Framework Convention on Tobacco Control's Article 5.3, which seeks to exclude tobacco industry involvement with any policy decision. It is hard to see such an exclusion as fair. Not only is it short-sighted in policy terms, but it complicates needlessly the relationship of employees of the tobacco and related industries with their elected representatives.

I haven't reached a view about the need for regulating lobbyists, except if it must be done it should be even-handed. In particular the special pleading that the purpose of some lobbying is 'self-evident' and there is no need for regulation in such cases seems quite wide of the mark. Regulation need not be onerous, but if it is required of any lobbyists it should be required of all of them. It appears that many people fail to understand the importance of transparency in relation to lobbying. The ingredients of tobacco are a very small part of the tobacco lobbying issue, even though they are frequently treated as the only important issue (more on this here).

In relation to tobacco, a further point has been made in a Montreal Court where Imperial Tobacco and two other companies are facing liability trials for allegedly causing disease in smokers. The point is that all ingredients in tobacco are regulated (UK version here), and government must logically share any liability for damage, as the tobacco companies are simply playing within the rules. The more tobacco companies are excluded from policy discussions, the more persuasive such an argument becomes. (It may not win. Did you know this: 'A recent Supreme Court of Canada decision ruled that the federal government cannot be a third-party defendant in a British Columbia department of health lawsuit against the tobacco companies because its actions were policy decisions, which are immune from liability.' [emphasis added] Immune from liability? Nice work if you can get it.)


It is an unusual step for a newspaper to feature a tobacco company's submission in full. There is a link to further submissions to the consultation, but it appears to lead you to another story about lobbying instead. 

Miscellaneous on tobacco control

1. Front page view of local rebel (local to Northern Ireland that is) on his way into prison. There will be a further report of his release shortly.

2. Court of Session turns down Imperial Tobacco's case against the Scottish Government claiming that the tobacco display ban is unconstitutional. Imperial may yet appeal but no final decision is yet made.

3. 'More smokers expected to die outside pubs this winter.' Speaks for itself.

Imperial Tobacco threatens appeal to Supreme Court

The story is here. The writer speculates that an appeal to the Supreme Court could cause trouble, if the Supreme Court ruled against the Scottish Government.

However the Supreme Court has already rejected an appeal from Sinclair Collis (vending machine company owned by Imperial Tobacco) on the legislation that will ban vending machines this year.

Much as I would like to see the courts overturning the legislation, I fear that they have already been lent on by legislators, and they are not providing the impartial service that they should be providing.

Legislators are not minded to heed appeals from what they perceive as tobacco interests – even though the results of a recently published European consultation on tobacco regulations revealed that ordinary citizens argued against the display ban in the same terms as the tobacco industry (para 6.6.4).

Such prejudice should not even register with the courts.

Lord suspends judgement in dismissing tobacco vending machine appeal

Suspends judgement? well that's remarkably what it looks like. Lord Neuberger's words have been widely quoted:

virtually any measure which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere.

Although stating that DoH statistics were 'little more than guesses', His Lordship reckons that the government has no case to answer simply by virtue of being government promoting health. Regardless of the number of jobs at stake, there is no point in anyone even trying to bring a case against the government because ... yes ...

virtually any measure which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere.

 Some of the public commenting in both the Daily Mail and the Sun (and no doubt elsewhere) struggle to understand why age-restriction technology (for instance radio-controlled vending machines) may not be used. It may not be 100 per cent fool proof (although it probably comes quite close) but neither is banning vending machines. The children and young adults of the future won't even miss them – they are too expensive even for adults to use as a regular source of supply.

It seems that all you have to do is come up with an idea to improve public health, and bring children into the discussion, and the courts won't even bother listening to any of your adversaries. Self-evidently. But when jobs are at stake, surely guesswork isn't enough.

I thought the whole point of having three arms of government (the separation of powers) was to protect the integrity of government by ensuring that each arm did its job properly.

Imperial Tobacco intends to appeal to the Supreme Court.

Imperial Tobacco attacks Welsh tobacco control policy

This has been reported on at least three blogs already but top prize to The Big Yin for calling his piece Welsh Rarebit. For rare it has been over the last few years to see tobacco companies leading from the front.

Yet here it is: Imperial's reply to the Welsh tobacco control consultation. Forest dubs it winner of its Plain English Award, and not without reason: it is clearly set out and structured:

• Good  –there is a tobacco control policy aimed at reducing youth smoking
• Bad – it has been incompetently conceived and designed
• Ugly – Welsh tobacco policy relies disproportionately on ASH Wales, raising the question whether improper pressure is being applied by 'the anti-smoking lobbying industry'.

Imperial Tobacco demands transparency in tobacco control, not only regarding the interests and involvement of tobacco companies but of all bodies involved, mentioning specifically ASH Wales and the pharmaceutical industry. The document consistently commends the aim of reducing youth smoking, but maintains that the strategy is wrong. It is wrong in describing smoking as a cause of health inequalities, and rebukes the tobacco control policy for simplistically trying to force a change in behaviour rather than trying to understand the reasons for such behaviour.

It is also wrong because it attacks the legal market in tobacco:

In many communities, where smoking rates are well above the national average, a high proportion of smokers will be sourcing their tobacco from illicit sources and criminal gangs ... Attempts to limit the availability of tobacco from legitimate sources will be undermined by an increase in the supply from organised criminal gangs who will welcome the broadening of the market share.

Addressing also civil liberties, property rights and the self-defeating method of denormalisation as a means of persuading adults to give up smoking, this consultation response makes good reading.

As The Big Yin points out, Imperial Tobacco is not the first tobacco company to start openly opposing official policy. There is so much to be done, and I hope this kind of document will now surface frequently – my way of saying Up With This Sort Of Thing.

MP joins fight against the display ban

Mike Weatherley MP (Hove, Conservative) has joined the fight against the tobacco display ban, and promised to pursue it with written questions in Parliament, according to the Sunday Express.

The Sunday Express itself has launched a campaign to save our newsagents, launched shortly before the General Election. Mike Penning, Shadow Health Minister at the time, promised that Conservatives would review the legislation if elected, and the Express vowed to campaign against any attempts to bring in 'this unfair legislation'. Their decision is awaited.

Meanwhile in Scotland, Imperial Tobacco has challenged the legislative competence of the Parliament to pass the ban in Scotland. The case was heard in July and the result is awaited.

Finally Finland (well, why not?), where prohibition appears to be on the way. A display ban has been passed, much to the delight of Action on Smoking and Health (ASH), which has sent a message of congratulation. Their statement to Medical News Today:

Across the UK those who make and sell cigarettes have been fighting tooth and nail to overturn this legislation but the tide is running against them. Laws for smokefree public places started in a few small jurisdictions and rapidly spread across the globe.

They love calling all the opposition to their plans 'those who make and sell cigarettes'. In the memorable words of the late Gian Turci, late CEO of Forces International:

In the minds of these deranged fanatics all those who:

• Oppose smoking bans
• Defend the freedom of choice
• Uphold real science, and condemn the epidemiological trash science used to justify suppression
• Fight for ethics in science, politics and in the media
• Advocate peaceful coexistence, civilized behaviour and social tolerance, or
• Fight for the survival of their businesses

ARE the tobacco industry when it comes to smoking, ARE the food industry when it comes to eating, ARE the alcohol industry when it comes to drinking, and ARE the oil industry when it comes to denouncing the global warming hoax!

Whatever one thinks of the global warming theory, the validity of Gian's point is beyond question. Opposition to the health agenda is equated directly with commercial interest in some offending industry. If there is no connection they seek to create one in the minds of the public while quietly forgetting, for example, that by far the biggest cut from tobacco is taken by government in the form of taxes.

Back to ASH on the subject of Finland.

We are seeing exactly the same process here, the only question is: Will the UK be one of the first major economies to implement a display ban or will it be the first to cave in to tobacco industry pressure and reverse a law that has already been passed by parliament?

For tobacco industry pressure, of course, read 'pressure from the general public and from tobacco retailers who would like to be viewed as partners in the effort to keep tobacco out of the hands of children, rather than as potential criminals (p. 5)'.

Nova Scotia Judge: Tobacco display ban violates tobacco merchant's rights

Legislators north and south of the Scottish border should take note of this ruling. Bob Gee has won the first stage of his case against the provincial government. This is great news but much hangs on the next stage of this case, which will take place on 6 October, when the provincial government will argue the case for the legislation.

The newly elected UK government is also set to review the tobacco display legislation. In Scotland, regulations on the detail of the legislation are still to be approved following a consultation that ended on 20 July. It is unlikely that the Scottish Government would willingly consider a review of this legislation, since only the handful of Scottish Conservative MSPs in the Parliament opposed it. However, Imperial Tobacco has challenged the competence of the Scottish Government to pass the legislation, and the result of this case is expected in the next few weeks.

The consultation responses on the latest consultation (display regulations) on the Scottish legislation have now been published.

Contracts in Smoking Cessation and the Tobacco Display Ban: good money after bad?

An international public relations firm, Weber Shandwick, has won a double contract with the Scottish Government. In case you thought enough money had been spent on smoking cessation, this company, with offices in 77 countries, will 'signpost and motivate adult smokers wishing to quit to contact Smokeline'. An absolutely indispensable frontline service, wouldn't you agree?

The credentials of Weber Shandwick to do this kind of work are clear – they've been doing it for years. For example, two years ago they discovered that 9 out of 10 New Year's quitters in Australia were back on the fags by June, in a report for Pfizer.

The other contract is to educate the public about the tobacco display ban (Tobacco and Primary Medical Services Act), which was voted into law in January and will be enacted in October 2011. This Act is currently the subject of court action after a legal challenge from Imperial Tobacco: a verdict is awaited.

Employing PR companies seems an expensive way to convince the public to do something it doesn't want to do, or to sell unpopular government policy to the public. I look forward to Weber Shandwick winning a contract to sell a comprehensive hospital smoking ban package. I wonder how the people in the relevant Scottish Government departments feel about having their work of explaining policies and making them more publicly acceptable handed to an outside contractor. As a member of the public I find my confidence in the Scottish Government eroded a little, but my confidence in their tobacco policy is not high to start with.

Corporate Watch has a useful section on PR companies and the lobbying industry.

Afterthought: I've added to the sidebar our response to the Scottish Government's recent consultation on display and pricing in respect of the tobacco display ban legislation, submitted last month.