British Heart Foundation cites survey of young people to support plain packaging

Press reports state that the British Heart Foundation's latest plea to the UK government for plain packaging of tobacco relies on a survey of young people. This is a reserved issue, but Scottish political representatives are being lobbied to put pressure on Westminster.

Other examples appear in the Independent and in Scottish regional papers. Resting a call for plain packaging on what a survey of under three thousand young people think is sadly not unprecedented (the invention of third-hand smoke precedes it: would you stop smoking if you believed that smoke clings to your clothes and kills your children?).

Who here thinks this paragraph convincing evidence that plain packaging would stop children being interested in tobacco?

A total of 2,771 young people took part in the online survey, carried out for BHF, which found 90% thought plain packs were less attractive than branded ones.

Did the survey ask whether tobacco in plain packaging would be found preferable to no tobacco at all? Considering that at least four fifths of those participating are likely to have been non-smokers, the answers are not surprising, especially since the survey designer, British Heart Foundation, has clear views on the issue. Even this document relies, not on facts but on what young people believe the facts are (p. 6):

 The research found that the proportion of young people believing that more than a fifth of children their age smoked fell from 62 per cent before the display ban to 46 per cent following it.

Granted it also cites more conventional sources of evidence in addition to surveys of young people. But its conclusions and arguments are far-fetched and unconvincing.

The EU Tobacco Product Directive, implemented in 2003, stopped companies using text and trademarks to suggest that a particular tobacco product is less harmful than others on packaging. However, the tobacco industry has continued to use gold and silver packaging on products to associate them as being ‘lighter’ or ‘lower-tar’ products.

Dick Puddlecote has more on the issue of whether different levels of tar present different levels of danger. All product lines from butter to baked beans alter colouring to reflect issues such as low fat levels or low salt or sugar, as a basic method of communicating clearly to customers what the product is. Being banned from using the words will increase the imperative to communicate with colour. Whether this same information leads people to believe that tobacco is safer if it has lower tar levels is moot. A public message that smoking is socially unacceptable is a poor vehicle for communicating the relative safety of different tar levels, since its core message is that smoking is always bad for you, and you are misled if you believe that any tar level is less dangerous than any other. In effect the levels of tar are no business of the smoker, who will use the information unwisely.

The British Heart Foundation does not consider the possibility that removing branding from the range of factors that prompt customers to choose their product leads the customer to decide on the basis of price, and could result in a price war, and certainly does not concern itself with the argument that illegal drugs are already sold in plain packaging. All scenarios assume that plain packaging will lead to customers seeing warnings more clearly, hence drawing the correct conclusions and desisting from smoking as a result.

Imperial Tobacco loses court bid to stop display ban

The full judgement is here. It's too complex to digest quickly, but the judge Lord Bracadale did not agree with the petitioners' case that the provisions of the tobacco display ban crossed the line defining reserved legislation.

In the eyes of the court, the transaction between the customer and the patron remains fundamentally unaltered by the display ban. (The Scottish Government on the other hand recognised that it could not, for example, ban the sale of ten-packs, as this would materially restrict the way in which tobacco could be supplied.) Imperial also failed to establish that the measures of the Act, outlawing the display of tobacco and the banning of vending machines, concerned the regulation of the supply of tobacco for the sake of general consumer protection: the judge held that the regulation was minimal and for the specific purpose of public health promotion by way of persuading young people not to smoke, which is a devolved issue.

In his summing up the judge quoted at some length material prepared in support of the legislation, in order to show that the legislation sought to influence young people rather than dissuade adults from purchasing tobacco: i.e. to show that the legislation had a specific public health objective, rather than a consumer protection objective.

There was also discussion of whether the Tobacco and Primary Medical Services Act interfered with free trade agreements between dating back to the Union – too much to absorb in one morning!

Unfortunately, the terms of the tobacco display ban do substantially interfere with transactions between shoppers and suppliers as indeed they are meant to, by forcing both parties into whispers that might have accompanied the sale of 'two packs of three' forty years ago. If the judge is correct in his conclusion, there remains the fact that the customer is confronted at best with a list of products in order to make his choice instead of being able to see what is in stock. If not meant to inconvenience or even stigmatise, the whole procedure is designed to convey the idea that cigarette smoking is discouraged. Even if this doesn't alter the character of the transaction in a way that defines it as reserved legislative territory, it certainly merits challenges from all quarters. Perhaps counsel for the tobacco companies, brighter than I am in such matters, will find grounds for appeal.

As people of all ages regularly access illegal substances, it is not guaranteed that subversive sales are likely to dampen the popularity of smoking. Indeed the lack of available evidence that the legislation will have the effect of stopping young people from smoking is well known: during passage of the Bill, Richard Simpson MSP said: 'The fact that we do not have all the evidence is not a reason not to have the ban.' U-huh. (Comment, with language alert.)  Problems with implementation and enforcement have also been expressed in an article published in The Grocer, which calls for the legislation to be scrapped. Imperial Tobacco is not the only body working for such an outcome.