Plain packaging: acquiring commercial assets without compensation

It was announced recently that next Wednesday we will learn whether the tobacco companies' challenge to the Australian government on plain packaging has succeeded. The Australian government has been taken to task for preventing the use of brand packaging, which they regard as a breach of international law. The Australian government denies that there is any breach, claiming that it does not directly acquire the intellectual property that is constituted in the branding.

The government has no direct use for the branding and design of tobacco packaging. However it does acquire selling and marketing space by depriving tobacco companies of the use of their intellectual property in the shape of branding, and of the actual boxes and packaging in which they sell their tobacco. The hope is to prevent young people from smoking 'by encouraging them to pay more attention to the health warnings'. (See this debate.) This is a key selling point of the policy: removing the clutter of branding from the pack face in order to make health warnings more prominent. Not only are they rendering worthless the branding assets of companies, on which billions have been invested over time, but they expect packaging to dissuade the purchaser from buying the product – and the prominence of the health warnings are central to this idea.

The government does not acquire the branding directly via a plain packaging policy but it does acquire powers to control what goes on the wrapper, in this case to stipulate that health warnings advertising smoking cessation services are prominent. Clearly the aim is to stop smokers spending money on tobacco and encourage them to become clients of stop smoking services and smoking cessation medication. It is entirely right that tobacco companies (and others) should object to this daylight robbery, which is no less robbery because tobacco branding is not employed directly by the government.

Stirling University 0, Philip Morris 1

Today the Independent newspaper reveals that Philip Morris has made a FOI request of Stirling University's Institute of Social Marketing involving data for research on the smoking habits of young people. 

In fact it is old news: the request has already been approved by the Scottish Information Commissioner in a decision dated June 2011 that criticised the University's conduct in the affair.

The tone of the Independent on this whole issue is almost hysterical. No less than three articles by science editor Steve Connor appear in today's edition:

Exclusive: Smoked out: tobacco giant's war on science

(a loaded way to describe a Freedom of Information request); 

Echoes of climate change battles are no accident

(in which tobacco and climate change are treated as identical issues); and

Hair-splitting, brazen denials and six decades of dirty tricks.

Good that you can rely on the press to be even-handed, especially when it calls itself the Independent? I have no objection to dirty tricks being reported, but the report implies that because tobacco companies have been caught in the past being less than economical with the truth their opponents in tobacco control studies have always been and will always be beyond reproach. 

As well as these three pieces we have another by Jean King at Cancer Research (which contributed to funding for the study at issue) : 'This industry should be kept away from young people.' Tobacco is just one thing that many people agree is not a product for young people's consumption. Is this a reason for a major newspaper not to ensure that both sides are properly interviewed in a report about a dispute?

The leader ('The uses and abuses of freedom') is at least slightly measured, and concludes:

Scientific research, which has a value in its own right, but potentially also a commercial and social value, could be seen as the university's exclusive property. If the university and the research, however, have taxpayer funding, should the findings not be more widely available? In the end, the Information Commissioner might have to weigh the arguments – and that might be no bad thing.

This brings us back to the fact that the decision appears to have been made already. I would have expected the writer of a leader to know this: have there been further developments since then? The University was given until 15 August to comply, and it isn't clear what has happened since then. 


Significantly, the studies are funded by the public, and their findings are expected to (at the very least) inform public policy. Gerard Hastings' pleas that the children interviewed during these studies did not expect their data to fall into the hands of tobacco companies suggest that he hasn't fully appreciated what public funding implies. As somebody comments under the article, he should not have given assurances to subjects that would run counter to his obligations under FOI.


Significantly BMJ editor Richard Smith has also agreed that Philip Morris should see the data collected at Stirling. I agree that Philip Morris should have access too, not least because the Institute of Social Marketing and Cancer Research UK are behind the studies. Their agenda is specifically anti-tobacco, and it is hard to imagine that their research can be other than policy-led. This gives Philip Morris a legitimate interest.


Edit: The Scotsman quotes the office of the Scottish Information Commissioner: 

In a statement, the office of Scotland's Information Commissioner, Kevin Dunion, said: "The commissioner has not ordered the university to release the information. He has found that the request was not vexatious, and ordered the university to make a substantive response to Philip Morris International. 

"A substantive response could include release of the information in part or whole, or a refusal to release information with an explanation of why, under the provisions of the FOI Act, the university believes this to be the correct course of action.