Regulating Tobacco

Chapter 6
Regulating Tobacco


A Introduction


(i) Justifications for Regulating Tobacco


In an ideal world there would be little need for laws regulating products and their promotion. Producers would take care to avoid harming others and consumers would behave responsibly and look after their own interests. However, the world is not perfect. Even leaving to one side the profit motivation which may tempt producers to take risks, regulation is increasingly needed as the marketplace and products become more complex and risky and correspondingly individuals’ ability to make fully informed and rational decisions for themselves becomes stretched.1 Many such laws are readily accepted as evidenced by the mass of regulation and standardisation concerning products. However, the regulation of tobacco has often been contentious as it affects the daily lives and social habits of smokers and prevents them from enjoying products in their preferred form or at least at the time, place and manner they have become accustomed to. In Europe for instance high tar cigarettes that some smokers once enjoyed are banned as are many oral tobacco products (except in Sweden). Rules now prevent people from smoking in everyday places where previously it was commonplace like trains, planes, bars, restaurants and offices.


To some this is a sign of the nanny-state infringing on individual liberty.2 Smoking is rooted in individualism and whether it be a sign of adulthood, masculinity aka ‘Marlboro Man’ or female emancipation many people came to prize smoking as part of their self-identity. This made many resistant to the public health messages that emerged and became ever stronger after World War II.3 The portrayal of smoking in popular culture promotes this positive product image and celebration of the ‘perfect pleasures’ of the ‘divine lady nicotine’ still remains attractive to some despite an awareness of health risks.4 Moreover, the resistance to the public heath message was at least in the early days made easier by the way some sections of the media downplayed or challenged the health message or even when accepting the case viewed it as a matter of jocularity and thus encouraged a certain bravado. Certainly Hilton saw signs of this attitude in the British media prior to the 1971 Royal College of Physicians Report.5


However, public health interventions in relation to tobacco can be justified. The decision to smoke involves assessing a complex array of evidence and probabilities that can significantly impact on the smokers’ life expectancy. At the very least the state might be expected to warn of the dangers, including the hidden risks posed by ‘light’ cigarettes which may in practice for most smokers not actually be any safer than regular yield cigarettes, and to remove from the market the most risky products (those with high tar yields). Furthermore the decision to commence this potentially deadly habit has in the past been taken against a cultural background influenced by positive images of smoking in media and advertising. The state might therefore be expected to intervene to restrict this advertising and prevent consumers being under any delusions about the dangers implicit in their choice.


A complicating factor is that much of the regulation is targeted at protecting youths.6 Regulatory policy is sometimes exclusively focused on children whom, it is argued, should not become hooked on an addictive (or at least habit forming) product before they are mature enough to assess the risks. However, often preventing youth smoking is also a byproduct of regulation aimed at reducing smoking rates generally. The impact of smoking on bystanders is a further complicating factor. Smokers may not take the interests of third parties fully into account and even if they attempted to it may be difficult for them to determine how high the risks of their smoking is for bystanders. Moreover ETS is not merely a health risk but also raises issues of the comfort and convenience of non-smokers.


Tobacco policy has developed as part of a broader movement to promote public health. There has been a general increase in our knowledge of risks in society, which has promoted expectations of what the law (and government) can and should do to protect us. Tobacco regulation is an example of the increased expectation on governments that they will improve public health by reducing smoking related diseases. The law is increasingly seen as having a role controlling its use and effects. Not only is the law seen as having a role in protecting non-smokers from ETS, but also in informing smokers of the risks of smoking and often going further and being used as part of the strategy to de-normalise smoking to reduce its popularity. In part the regulatory approach has focused on bystanders and youth smoking so as to counter criticisms of paternalism, but regulators are also targeting adults with messages to give up smoking. The best counter argument to those who criticise such an approach as being an emanation of the nanny state is to ask what would be the view of government of it had failed to do anything to address one of the most serious and preventable known risks to health. Imagine the position if governments had taken no action against smoking and tobacco companies had been left to advertise that cigarettes were safe or even good for your health, packed the product with tar and nicotine and targeted the youth. Life expectancy in the Western world would be far lower than it is today and few would have praised the state for protecting their liberty.


B Scope of Regulation


The law frequently uses a number of levers to control behaviour. The choice between them will depend both on the object to be achieved and on the most efficient means of achieving those objectives. Even the most pro-tobacco advocates would probably concede the need for some legal intervention; for instance, related to restricting underage sales. There is also nowadays a fair degree of consensus over providing health warnings that the product might harm health, although there is dispute about the form and content of such warnings.


In Europe at least it has been accepted by industry that consumers should be informed of the content of the product in terms of its tar and nicotine yield, albeit that there has been some reluctance at times to disclose all the additives used. Indeed most concerns about disclosure have come from the public health community, particularly in the US, who fear that smokers may place undue reliance on low yields signifying reduced risk given that the problems with testing machine readings and smokers compensatory behaviour may not make them a good guide to actual intake.


Where disagreement has tended to be fiercest is over controls on the content of the product and its advertising and promotion. There is an even more contentious set of issues surrounding ETS.7 The extent to which the law can affect norms of social behaviour is debatable. However, reduced smoking rates in many Western countries suggest that these legal rules are at least playing their part in helping to reduce smoking. However, inevitably many factors interact and it may be difficult to assign particular causal relationships between legal intervention and smoking rates. Nevertheless, as part of a broader public health agenda legal regulation has played important roles in denying access to youths, informing the public of the risks and de-normalising smoking, especially through controls on advertising and promotion and ETS.


Tobacco’s interaction with law is complex and fascinating. The product’s history is closely intertwined with societal values and patterns of behaviour. This has prevented the law, both in its common law and regulatory forms, from being applied to tobacco in the same way as other product. The result has been outcomes that can look contradictory and give the impression at times that the law is forcing square pegs into round holes since the law is seeking to find ways to regulate a product when the logical regulatory response by contemporary standards would be to ban it. The often apparently inchoate nature of the collection of legal rules regulating tobacco can only be explained by the context of regulators seeking to regulate a product that should be, but cannot be, banned.


Regulating to change human behaviour in daily life is a complex and sensitive task at the best of times, but the problems are magnified when the policy choices can be shown to be internally conflicting. Indeed the tobacco industry has not been slow to exploit such tensions as for example with the regulatory pressure to reduce tar yields and yet oppose descriptors like ‘light’. At the heart of the policymaker’s dilemma has been how best to develop a policy that seeks to make a product safer when it is inherently unsafe. Indeed some argue this cannot be done and the message should be the clear and simple one that all tobacco is dangerous. Combined with this has been a reluctance to attack directly the right of adults to smoke with the result that many policy initiatives have focused on youths and ETS, even if behind both agendas lies a desire to ‘de-normalise’ smoking generally and hence indirectly reduce adult as well as youth smoking.


C The Context of Tobacco Regulation


The avowed intention of the public health lobby and regulators to reduce, if not obliterate, the tobacco market makes for a difficult regulatory context. In most product regulatory contexts there may be different interests at stake, but the general policy is to make rules that promote the product. This is very different in the tobacco context. One can understand why the tobacco industry sees regulations as a threat – as it is often intended to be just that. This makes tobacco a unique consumer product. Any other product the state felt caused so many social ills would simply be banned. Culture prevents that from happening with tobacco, but makes its regulation and the processes surrounding it highly charged.


Europe has favoured regulation more than the US. The Norwegian Tobacco Act 1973 and Finnish Tobacco Control Act 1976 were pioneers, with the late 1980s seeing strong regulatory action in Canada, the state of Victoria in Australia and France.8 One reason for this has been that it has been politically easier to regulate in Europe and some Commonwealth countries than in America. The powerful lobbying power of the tobacco industry in the US combined with the labyrinthine Congressional procedures and constitutional limits has made it very difficult for political progress on tobacco control measures.9 This resulted in tobacco being dealt with through litigation in the US, but one outcome of litigation has been the agreement to rules of conduct by industry (as in the multistate MSA) or court orders for such rules (as in the federal Government RICO case). However, with the enactment of the FSPTCA 2009 the US may see more federal regulation in the future.10 Many US anti-tobacco activists were in fact disturbed when Philip Morris became an advocate of federal regulation. Philip Morris’s repentance was not seen by some as sincere given that they continued to defend their past behaviour in courts. Indeed their engagement with regulation may be a means of countering the de-normalisation of tobacco if the product is seen to be regulated by government. Moreover, regulation may favour the preservation of the leading market share enjoyed in US by Philip Morris.11 Whatever the motives it is surely a positive thing if the industry is engaging in regulatory discourse.


The (European) regulatory approach is of course open to the challenge that the norms adopted are ineffective. Such criticisms may be simply due to the inherent lack of utility in the rule introduced. For instance, it might be argued that controls of product content to reduce tar and nicotine are meaningless if smokers simply adapt their behaviour by smoking more or differently, by, for example, covering up the holes on filters, inhaling deeper and smoking more of the rod. The regulatory approach might also be weak if tobacco companies are able to avoid its impact, by for example switching advertising resources from one media in which tobacco promotion is banned to another where it is permitted or from advertising to price promotions. Whilst these criticisms may have some partial validity they tend to go more to the debate about the nature and style of regulation, rather than provide grounds for rejecting the regulatory approach altogether.


The regulation of tobacco will be presented as a fair response to address a complex social phenomenon. Regulations should of course be future proofed as far as possible, for tobacco companies will inevitably have incentives to find ways around restrictions to appeal to their customers and attract new customers. Many of the rules are still relatively new and there is doubtless scope for them to be better refined. One possible lesson from the recent past in this field is that much could be gained from greater openness about the objectives of tobacco control in order to enable the purpose of the regulations to be properly assessed. Increasingly there are signs that governments are being more open about their objective of de-normalising smoking and tobacco companies are recognising that it is only legitimate to sell their product to fully informed adults. Such approaches are to be welcomed and should allow the industry to predict and hence mange a reduction in future sales.


Legal regulation of advertising, labelling and packaging of tobacco products (disclosure of tar, nicotine and carbon monoxide yields and warnings) are all linked to the objective of allowing consumers to make informed choices. Even ETS regulation can be seen as an educational tool as it seeks to influence acceptable conduct. Similarly, there are efforts to remove smoking from television and films to prevent it being perceived as a socially acceptable or glamorous activity. However, behavioural economics research cautions that such efforts may not always have the expected and desired impact on consumers decision-making.12 Two particular features of tobacco make the impact of such information problematic. Most smokers start smoking when under 18. Youngsters may have particular problems in processing the information and assessing the risks they face. They may well see the harmful impact of smoking as a distant risk that they can too easily discount and may believe they will be able to stop smoking before much harm is caused. However, this leads on to the second factor of addiction, which means that many consumers find it hard or even impossible to change the choice they made, often at a young age. This explains why many tobacco prevention and cessation programmes are aimed at either the youth market, to prevent them from starting to smoke, or addicted smokers helping them to give up.


D Contemporary Challenges for Tobacco Regulation


However, tobacco regulation is at the cross roads. Many features of regulation have become widely accepted and are likely to become deeper embedded due to the WHO Framework Convention on Tobacco Control.13 The major issue for the future is whether the public health community sticks with the message that all tobacco products are equally dangerous or if it works with industry to develop and promote Potentially Reduced Exposure Products (PREPs). The danger from the public health perspective with such products is that they may make smokers more willing to start or continue smoking if they feel the health risk is reduced. This makes many in the public health community nervous about supporting such products, especially given the experience of ‘light’ cigarettes. This is also reflected in the views of some public health activists that tar and nicotine yields should not be disclosed. This philosophy is even reflected in WHO Guidelines on protecting tobacco and public health interest from commercial and vested interest, which reflects the public health communities displeasure at past industry conduct and seeks future relations to be at arm’s length.14


However, this approach leaves those that cannot or will not stop smoking with no alternative to the conventional cigarettes. If there are safer alternatives it seems wrong not to give consumers information to allow them make their own choice; even if some will use this as a reason to continue smoking when otherwise they might have quit. This is a hard regulatory choice, but if politically banning tobacco is not an option, then it seems illogical not to try to make products safer and wrong not to give consumers information and to leave it to consumers to make their own decisions with the benefit of full information. Of course this must all be done in the context of a broad set of policies seeking to ‘denormalise’ smoking and providing them with support to quit. It must also involve an education package which explains why lower tar products still carry considerable risks and the serious risk of even low levels of smoking.


E To Smoke or Not to Smoke?


(i) Bans and Controls


Pragmatically a total ban on tobacco products is not an option nowadays.15 Indeed the FSPTCA 2009 in the US goes so far as explicitly to preclude the possibility that tobacco be required to be prescribed by doctors.16 There have been proposals to make access to smoking more difficult by requiring smokers obtain a license. Professor Le Grand has suggested a £10 fee and a complex form. The hope being this would deter smokers or place a barrier in their restarting. But such schemes have not been introduced and are likely to be politically unpopular and difficult to administer and enforce.17


Some proposals for government involvement to run down the tobacco industry have already been noted.18 Sugarman has proposed performance based regulation as a means of reducing tobacco sales.19 Under his scheme targets would be set for companies to reduce their sales and if these were not met penalties imposed. Companies that exceeded their target could trade their rights to others that had failed to do so. Although Sugarman notes that such schemes have been proposed (under Global Settlement, to the Court in the RICO case and in a bill of Senator Enzi), the first two proposals were limited to youth smoking. It is very different to propose a global total ban. This in effect is a cap on production. There is no risk that a company could not meet it as it simply has to limit distribution placing its product into a shortage and leaving the issue of how to deal with the gap in demand. It is very different from say environmental pollution when the business can control the negative impact of its otherwise valuable activity. It is unlikely such solutions will be adopted.


There have been academic proposals that the sale of tobacco products should be more strictly regulated, for example, by drawing comparisons with pharmaceutical sales and requiring vendors to be licensed and their number and location restricted.20 Licensing of retailers is in fact common in many US states and the Tobacco and Primary Medical Services (Scotland) Act 2010 imposes a requirement on retailers to register in Scotland. There is no licensing requirement in England despite calls for its introduction by the British Medical Association.21 The WHO has suggested licensing might be a way to ensure rules on advertising, promotion and sponsorship are followed.22 Equally it has been suggested purchasers might be limited as to how many cigarettes they could buy with the cost increasing for high volume consumers. However, the obvious black-market potential for trading of licenses to purchase between smokers and non-smokers makes this unrealistic. Apart from under age sales, the retail environment for tobacco is fairly unregulated and controls are likely to be concentrated on the display and promotion of cigarettes rather than be related to the right to buy or sell per se. Of course it is possible that legal systems provide for bans if traders breach trading laws.23


(i) Oral Tobacco


However, in Europe one particular tobacco product (oral tobacco) has been banned.24 There is in fact a significant debate as to whether such smokeless tobacco products should be singled out in this manner. Indeed an argument might even be made for promoting them at the expense of cigarettes. Although there are undoubtedly health risks associated with smokeless tobacco, notably mouth cancers,25 the smokeless industry and even some independent experts argue it is less risky than smoking.26 Indeed this argument was at the heart of the unsuccessful attempt to overcome a ban on smokeless products in the European Court of Justice.27 There is a certain irony in that European legislator may have managed to ban less risky smokeless product, whilst creating harmonised rules to promote the internal market for more dangerous cigarettes. The pragmatic reasons for differentiating between the products are easy to understand. Smokeless products are less prevalent. Equally the popularity of oral tobacco with youths gave another incentive to ban it.


Nevertheless, the outcome is irrational if it is true that smokeless tobacco products are in fact less dangerous. One can at least understand the frustration of smokeless tobacco producers. It also potentially cuts off one possible route to reduce the impact of tobacco on the nation’s health; albeit due to the good intention of promoting smoking cessation rather than a switch to a possibly less dangerous form of tobacco, whose dangers might nevertheless justify banning it under normal consumer safety laws. Others have, however, suggested smokeless tobacco might even be a gateway to quitting.28 This is an example of tobacco laws producing apparently incoherent results, because of the need to adapt to practical realities rather than being based on principled reasoning and scientific evidence. The EU is consulting on lifting the ban with the range of options extending from lifting the ban through to extending it to all types of smokeless tobacco products.29


(ii) PREPs


The debate about smokeless products is part of the broader debate as to whether PREPs may reduce harm or perversely have a negative impact of public health as they encourage people to use some form of tobacco as an alternative to quitting tobacco use. Of course developing a safe cigarette would be an ideal solution, but attempts to do so have not been very successful to date.30 The development of safer cigarettes has been hampered first by the industry’s fear of making consumers of their regular cigarettes concerned that the health risks may be real and more recently by the public health lobbies reluctance to support any modification as an advance. To many anti-tobacco activists any tobacco product is still a dangerous product and PREPs may increase aggregate harm if they give some smokers the encouragement to start the habit or provide an alternative to quitting.31 Nevertheless there is an increasing recognition that policy should address products that can meet the nicotine addiction needs of those who cannot or will not kick the habit.32


The tobacco companies in part are developing PREPs to compete with nicotine replacement products. Nicotine replacement products have of course been developed to help smokers quit, but there may be the need for more long term alternatives for those who want to continue some form of tobacco use. The move to develop PREPs is part of this debate.33 There is also the fundamental problem of evaluating just how safe PREPs are. There has been no clear discussion in the public health community as to whether PREPs might in fact reduce the risks of smoking. There have been some calls for industry to fund research to avoid the problems related to the misleading claims surrounding ‘light’ cigarettes, but the irony is that many in the public health community would be unwilling to accept funding from the tobacco companies should it be forthcoming.34 Better science is needed to inform policy in this area.


Nicotine manipulation shows how difficult it is to determine what the correct policy should be. It was a central part of the FDA moves to regulate tobacco that it was no longer a ‘pure’ product as the industry could manipulate the amounts of nicotine. This can be viewed as the industry struggling to ensure its product remained popular by increasing nicotine levels to maintain addiction in low tar cigarettes. On the other hand increasing the nicotine to tar ratio could be viewed as a positive public health move if smokers could feed their addiction with less exposure to the harmful tar.


This central tension about the pros and cons of developing safer cigarettes has already been played out in the context of ‘light’ cigarettes. That history is unfortunate for it has left a bad taste in the mouth of the public health community and further undermined trust in the tobacco industry. The public health community feels that the industry misled the public as to the safety of ‘light’ cigarettes and has similar scepticism about current development of PREPs. This should not in itself deter the public health community from supporting PREPs. The public health community is now more mature than when ‘light’ cigarettes were developed and can demand government scrutinise such products and any claims made about them. In truth the tobacco companies have had a shot across their bows and it would be audacious of them indeed if they tried to mislead as to the health advantages of PREPs. Indeed they are probably seen by the tobacco industry as alternatives to pharmaceutical nicotine products for those who want to quit smoking regular cigarettes rather than as alternatives to tobacco products for their dedicated smokers. The public health community fears the mixed message any support for PREPs risks sending and the possible dilution of the no smoking message. However, if tobacco products are to be allowed it seems unfair to smokers not to allow them to seek out safer alternatives.


F Youth Access


(i) General Policy


Most smokers start the habit before they are 18 and, perhaps more importantly, few smokers start after that age. A central plank of anti-smoking campaigns has therefore understandably been to focus on preventing youth smoking. Rather emotively John Banzhaf has suggested youth smoking is analogous to statutory rape.35 There is a risk that if only the youth dimension is emphasised the dangers to adults from smoking or the harm caused from passive smoking are given lower priority.36 Indeed the industry is keen to depict smoking as an informed choice for adults. Nevertheless it is a strong political argument that tobacco companies should not target youths. Indeed the efforts of the FDA in 1996 to regulate tobacco were premised on a policy of protecting children and adolescents.37 It was this dimension that gave President Clinton the courage to support moves by the FDA to regulate tobacco.


In large part tobacco control youth strategy relies upon education campaigns,38 but the law also has a role to play.39 In the US the MSA, for instance, contains a prohibition on targeting youth in the advertising, promotion or marketing of tobacco products40 as well as bans on youth access to free samples and gifts to underage persons based on proofs of purchase.


Many of the general controls on tobacco are also intended to protect youths and prevent them from smoking. Thus young smokers are believed to be particularly price sensitive and so policies to increase excise duties may help deter young people from smoking.41 Indeed young smokers are also likely to be heavily influenced by advertising and many of the controls introduced have been to prevent youngsters viewing smoking as a pleasurable or acceptable habit through the image portrayed in advertising.42 Controls on point of sale promotion can assist as studies have found popular youth brands are more heavily marketed in stores youths frequent.43 The FDA ban on cigarettes with fruit, candy or clove flavours is at least as regards the first two doubtless aimed at making them less appealing to youths.44 Many proposed enhancements to regulatory controls seek to close off routes through which young people are being targeted by tobacco companies. Particular attention is also being paid to the portrayal of smoking on television and in films. The controls on ETS again help to de-normalise smoking and measures to prevent children from being exposed to smoke are high on the agenda.


(ii) Age Restrictions


Age restrictions on sales to youths apply in most countries.45 Most fix the legal age at 16 or 18 with the trend being to raise it to 18. In some countries it is higher for example in Japan it is 20 and in Kuwait 21. In the UK sales to under-16s were first banned by the Children Act 1908 and in 2007 the age was raised to 18.46 In most states in the US the legal age for buying tobacco is 18 but it is 19 in Alabama, Alaska, New Jersey, and Utah as well as in certain counties such as Onondaga, Suffolk and Nassau in New York.47 Tobacco companies had lobbied at state level to weaken the controls by requiring the sales to have to be made ‘knowingly’ or ‘intentionally’.48 The FDAs Regulation Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Children and Adolescents (March 2010) (‘FDA Regulation 2010’) sets a national minimum age of 18. The FSPTCA 2009 requires the Secretary for Health and Human Services to undertake a study of the implications of raising the smoking age.49


Mostly the laws and enforcement are targeted at the sellers, but some US states have also made it an offence for the young people to possess or use tobacco. Indeed there is a trend towards targeting youths more than sellers, which not all in the anti-tobacco movement are happy with.50 Some US states have found it better to use general consumer protection statutes to deal with under age sales as they have more stringent sanctions.51 Equally in some US states smoking violations can lead to youngsters losing their driving license.


Some shops used to sell individual cigarettes to children. In the UK it has been made an offence to split a pack for sale to either children or adults.52 Many US states also ban the practice of selling ‘loosies’ and the MSA introduced a minimum pack size of 20. FDA Regulation 2010 prohibits packs of less than 20.


Evidence suggests that these laws need to be strictly enforced if they are to be successful and it can be too easy for children to obtain tobacco from shops despite bans. Resourcing compliance and the effectiveness of sanctions are perennial problems. Trading standards officers in the UK and several US states use test purchases by underage persons to check on compliance.53 The UK has introduced the power to ban sellers found selling to underage consumers from selling tobacco for up to one year54 and has mooted introducing bans on persistent offenders that would also extend to the sale of other age related products.55 It has also promised a review, although not before 2016, of the controls on selling tobacco and may consider a registration system or a licensing system as for alcohol.56


(iii) Vending Machines


Although sales from vending machines account for only 1 per cent of UK tobacco sales they account for 10 per cent of underage sales.57 The UK government is to ban tobacco vending machines in England from 1 October 201158 and a ban is provided for in Scotland by s. 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010.59 The EU is consulting on the matter.60 The obvious rationale for this is that there are fewer controls on under age sales from vending machines. An alternative to a ban sometimes adopted is to require vending machines to be in eyesight of sellers, but obviously this may be easier to circumvent as the seller may be distracted and there are no direct controls. Technology may also assist. For instance, the Tobacco Institute of Japan has issued ‘taspo’ (an abbreviations for ‘tobacco passport’), which is an age-verification card that must be scanned at newly installed smart vending machines before a purchase can be made. This technological solution has been placed on a legislative basis in Germany where all cigarette vending machines in public places accessible to young people in Germany must either be supervised or require a technical device (such as a debit card) to verify a consumer’s age.61 However, again the scope for circumvention is obvious as cards can be obtained by fair means or foul from older persons or even potentially copied or forged. The FDA Regulation 2010 prohibits vending machines except in limited adult only venues.


(iv) Internet Sales


Another obvious route for youths to evade controls is purchase over the internet.62 A 2004 US study found that 96.7 per cent (29 out of 30) 15 and 16 year olds were able to purchase tobacco on the internet within 25 minutes.63 The Prevent All Cigarette Trafficking (PACT) Act 2009 requires sellers verify the age and identification of purchasers as well as requiring internet sellers to comply with the laws of the state of delivery.64


In the UK the focus on internet sales has been on its ability to promote illegal trafficking in cigarettes rather than the under-age sales, but requiring age verifications would seem in any event a sensible and necessary requirement even if it is not yet perceived as a major source of youth access to tobacco. Any sales in contravention of the age rules could be prosecuted under the general controls. The EU is considering age verification and other legal conditions (registration or licensing) for cross-border retail tobacco sales or a ban which might include a ban on postal delivery of tobacco.65


(v) Enforcement


As in many areas of law the effectiveness of these laws depends upon how well they are enforced.66 It has been shown that effective campaigns can reduce sales to minors and have effects for at least six months after they have ended.67 However, reduction in sales may not lead to reduced smoking as youngsters often rely on social sources of cigarettes.68


Many of the other general regulatory policies aimed at the general population are also geared at preventing youths from smoking. This is nowhere more clear than in relation to advertising and promotion where youths are seen as being highly susceptible to advertising and special consideration is also given to the impact of advertising on children.


G Advertising and Promotion


(i) Introduction


A major battleground has been the regulation of advertising and promotion of tobacco products. Indeed it has even been suggested that in the early days of tobacco control it suited everyone to focus on the rather narrow issue of advertising rather than the central but then still undetermined, issue of whether tobacco caused cancer as all sides had too much to lose if a clear answer was found to the health question.69 Today when the link between smoking and disease is established many politicians still remain responsive to campaigns for advertising controls. These do not involve the state interfering in the basic decision as to whether to smoke. The decision to smoke can still be portrayed as a matter of free choice. Indeed, the restrictions on advertising can be shown to enhance that freedom by ensuring it is made on the basis of facts rather than cultural manipulation.


Tobacco control lobbyists point to the mortality rate from tobacco and argue that advertising and other promotional activities are needed by the tobacco industry to replace those consumers that its product has killed off. Although the evidence is hard to pin down, some studies claim to show a correlation between the strictness of advertising restrictions and the decline in smoking rates.70 The industry counters that their advertising simply seeks to promote inter-brand competition, but their opponents note the huge amounts spent could not be justified solely on that basis, especially given the relatively strong brand loyalty associated with tobacco products. The US Surgeon-General’s 1989 report on smoking and health found tobacco advertising and promotion increased tobacco consumption by encouraging youth to experiment and initiate regular use; increasing smoking by serving as an external cue to smoke or by lowering the cost of smoking; reducing smokers’ motivation to quit; and encouraging quitters to resume.71 In addition media dependence on tobacco advertising revenue ‘may discourage full and open discussion of the hazards of tobacco use’; opposition may be muted due to sponsorship of events and organisations and pervasive advertising may contribute to making tobacco use socially acceptable.


The industry has attempted to self-regulate its advertising, but there were serious criticisms on both sides of the Atlantic that these rules did not address crucial issues, could be easily evaded, were not comprehensive and were poorly enforced.72


There is a debate about how effective advertising bans are.73 Moreover, to be effective such controls have to be comprehensive, for if only some forms of advertising and promotion are prohibited, budgets will simply be transferred to those outlets that remain.74 Even comprehensive bans may be countered by budgets being switched to price reductions and promotions.75 Media reliant on tobacco advertising may be less willing to discuss the health risks of smoking for fear of frightening away sources of revenue,76 and so one positive outcome of a ban might be expected to be a greater discussion of the topic, but this may well be countered by tobacco company diversification so that editors fear reduced revenues from the advertising of other products on the corporate group if they are too vocal on smoking health issues.77 Where advertising bans have been introduced there are arguments about the scope for exceptions, such as point of sale price information, trade magazines, specialist tobacco retailers and for night clubs only accessible to adults. Advertising restrictions equally have to be global in the sense of not allowing cross over from neighbouring states whose controls may be less strict. Moreover the new technologies challenge tradition concepts – for instance, there is a debate as to whether open source marketing, by which the companies seek to engage with their customers, is indeed marketing at all or falls outside any ban on advertising and promotion.78


Regulators have tended to agree that health claims for tobacco or comparative claims between products should be strictly controlled and for the most part be discouraged. This was evident during the ‘tar derby’ in US when the FTC prohibited publication of tar and nicotine levels and health claims about filters. However, such strict controls may have actually served as a disincentive to manufacturers to develop safer products.79 This is relevant for current debates about whether industry should be encouraged to develop PREPs.


A particular problem relates to indirect advertising. Many companies foreseeing possible restrictions on tobacco advertising moved to associate their brand names with non-tobacco products with the desire in part to find a means of promoting the brand name if not the tobacco product directly. Whilst legislators are appreciating the need to control this indirect advertising, grandfathering clauses sometimes mean that tobacco companies have been able to benefit from their policy of brand diversification.


There has been a cat and mouse game at times with government moving to regulate tobacco advertising and the industry acting before controls are introduced by seeking to consolidate positions and planting the right messages and associations in the mind of consumers. Colours and imagery have been associated with products and the brand used in non-tobacco products. Another example was the huge increase in television advertising in the US prior to a ban on television commercials.80


Subsequent to controls being introduced companies have naturally exploited what advertising and promotional opportunities are left open to them. Indeed the current position of the various tobacco companies as regards regulation, particularly Phillip Morris’s support for regulation, might be partially influenced by restrictions on advertising potentially favouring the existing market leaders. As Viscusi notes if advertising does primarily affect brand choice restrictions will have anti-competitive consequences.81


An important factor explaining some differences between Europe and the US has been the impact of the US First Amendment and the ‘commercial free speech’ doctrine, which has restricted the scope of US advertising controls. For instance, any bans on advertising might only be permitted if restricted to the close proximity of schools.82 However, there are signs in recent times of a greater willingness to regulate within the full extent of constitutional limits, albeit that the Supreme Court seems determined to police those limits seriously.83


Undoubtedly advertising has been a major element of tobacco companies strategy to promote their brands. It has also at times been used to reassure the public about their product.84 Often this has been combined with careful sponsorship aimed to promote the industry and product’s image by associating tobacco with positive activities and promoting the corporate image of the company. These are, however, only part of the promotional tools available and recent times have seen an emphasis on point of sale promotions where allowed85 and price promotions becoming more important as more bans or controls or advertising are introduced. At events promotion can be disguised as selling, where for instance tobacco companies have chill out zones in which cigarettes are on sale or ‘cigarette girls’ selling products.86


(ii) Ban on Television Advertisements


In 1962 British cigarette manufacturers agreed to cease broadcast advertising before 9.00 p.m. and in 1964 cigarette advertising was entirely banned from UK television.87 It is now banned across Europe under the ‘Television without Frontiers’ Directive.88


An interesting episode occurred in the US where the Federal Communications Commission’s fairness doctrine was invoked to require free counter advertising about the dangers of smoking. Although opposed by the industry the courts concluded:


Where, as here, one party to a debate has a financial clout and a compelling economic interest in the presentation of one side unmatched by its opponent, and where the public stake in the argument is no less than life itself, we think the purpose of rugged debate is served, not hindered, by an attempt to redress the balance.89


However, in 1971 a total ban on television or radio advertising, or indeed advertising by any electronic means of communication, was introduced.90 On January 1, 1971, the last day on which television advertisements were permitted, cigarette companies spent over $2 million, three times as much as was spent on an average day in 1970. The years immediately following the ban actually saw smoking rise in the US causing some to conjecture that the counter advertising had been a more affective deterrent than the ban.91 There were shifts in marketing to ‘brand stretching’ such as the ‘Marlboro Country Store’, sports sponsorship and increases in advertising in print media.92 Decades later in reaction to the MSA similar shifts would be seen as price discounts were favoured.


The television advertising ban withstood constitutional challenge in Capital Broadcasting v. Mitchell,93 but the dissenting judgment of Justice Wright is interesting. He favoured providing customers with information and trusting them to make the right choices and indeed points to the success of counter advertising. This might seem to resonate with the view that if tobacco is legal it must be left to consumers to make fully informed choices. However, there is a difference between providing information – such as regards tar and nicotine yields – and allowing the product to be positively promoted which is the function of advertising. Such advertising risks confusing and overwhelming consumers so they fail to properly process the information relevant to the decision to smoke.94 As a deadly product the state has the right to ‘de-normalise’ the use of a product that it might prefer to ban if that was socially possible. Advertising controls are part of that de-normalisation process. A broadcast ban for smokeless tobacco was introduced by the Smokeless Tobacco Education Act 1986.


The impact of counter advertising underlines the importance of ‘de-normalising’ tobacco so that the public and especially the young see it as a product they do not want to be associated with and fully appreciate the risks.95 The power of such counter advertising may explain why in the US some companies have risked upsetting public opinion and brought – so far unsuccessful – legal challenges to counter advertising by arguing that it breaches ‘vilification’ clauses in settlements such as the MSA, pollutes jury pools or infringes First Amendment rights by requiring the compulsory funding of speech with which the funder (via the settlements) disagrees.96


Bans and restrictions on television advertising and sponsorship can also be part of a strategy to prevent the promotion of a positive image of the product and can form an important part of an overall policy aimed at marginalising the product. If this policy is to be successful there is a need to go further than the formal law sometimes currently goes and seek to alter practices in the entertainment sector to prevent tobacco product placement and ensure that smoking is not supported by actors smoking in films and television programmes. In Europe there are bans on tobacco sponsorship and product placements.97 In the US there are few regulations and given the dominance of the US film industry this is significant.98 The MSA ban on product placement in entertainment media does not cover overseas companies. Pressure groups like ‘Smoke-free Movies’99 have been active in monitoring the use of tobacco in films and in seeking to ensure that smoking is taken into account when rating films, as well as having anti-smoking messages provided where tobacco is used. The World Health Organisation is promoting regulation of the matter to require adult ratings for movies showing smoking, inclusion of anti-smoking messages and assurances that no payoffs are received from the tobacco industry.100


Television advertising is widely banned, with the debate being about the indirect portrayal of smoking and promotion of brands within product content. Much of the recent debate and legislative activity has been about the extent of advertising restrictions more generally, for example, in the printed media and on billboards.


(iii) Europe


When Europe first addressed non-television tobacco advertising in 1989, the proposal had merely covered tobacco advertising in the press and by means of bills and posters.101 Such advertising would have had to have carried health warnings and the rules would have restricted content of advertisements to information about the product and presentation of its packaging. References to a trade mark, emblem, symbol or other distinctive feature mainly used in connection with tobacco products in advertising, which did not directly mention a tobacco product, would have been prohibited, as would advertising for tobacco products in publications mainly intended for people under 18. However, the strictness of the ban steadily increased during the legislative passage and the Directive eventually adopted provided for an extensive ban on all forms of advertising and sponsorship in the Community with very limited exemptions, for example for diversification products, advertising at tobacco outlets and in publications from third countries not principally intended for the Community market.102 Deferred implementation had been permitted in certain circumstances, notably in relation to international sporting events such as Formula One. Member states were free to have stricter requirements and partly for this reason the European Court of Justice annulled the Directive as it was not found to be justified as an internal market measure.


The revised tobacco advertising directive103 only covers the advertising of tobacco products and their promotion in four areas, namely:


a. in the press and other printed publications;


b. in radio broadcasting;


c. in information society services;


d. through tobacco related sponsorship, including the free distribution of tobacco products.


Advertising covers ‘any form of commercial communication with the aim or direct or indirect effect of promoting a tobacco product’.104 Sponsorship means ‘any form of public or private contribution to any event, activity or individual with the aim or direct or indirect effect of promoting a tobacco product’.105 There is no definition of promotion. The public health community has been concerned that the reference to indirect effects might bring indirect advertising within the scope of the directive, and thus pre-empt stricter national laws, although this was expressly stated by the Commission not to be its intention.


National powers remain to regulate all types of advertising and promotion not addressed in the Directive. Article 8 provides though that Member States shall not prohibit the free movement of products and services which comply with the Directive, but this should not affect their freedom to enact more rigorous protection on topics not covered by the Directive. Since the annulment of the previous broad ban it is ironic that now the public health community may feel more comfortable if matters are not included in the EU laws, unless subject to the most stringent rules in order not to risk the freedom to act at the national level. The Commission is trying to encourage, through a voluntary approach, broader controls in areas which the ECJ found to be outside its competence to harmonise.106


With regard to press and printed media, Art. 3 states that advertising shall be limited to tobacco trade press and publications published in third countries and not principally intended for the Community market.107 Other advertising in the press and other printed media is prohibited. This prohibition is extended to information society services.108 Advertising of tobacco on the radio is banned.109 Sponsorship of radio programmes is not permitted by undertakings whose principal activity is the manufacture or sale of tobacco products.110 Is there a loophole here for producers who could claim that their principal activity was something else? This might occur if a tobacco firm was taken over by a larger organisation.


More generally, sponsorship is prohibited of events or activities involving or taking place in several member states or otherwise having cross-border effects.111 The free distribution of tobacco products at such events with the purpose of directly or indirectly promoting such products is also prohibited.


Across Europe the Directive has been fully transposed, but on-going problematic areas have been identified as being the detection of covert advertising in the virtual environment and the development of indirect forms of sponsorship.112 Although Member States increasingly favour stricter bans at the domestic level distinct differences can still be detected. France for instance introduced advertising bans as far back as the Loi Evin in 1991,113 whereas Germany has always been less strict. The UK initially was not in favour of the European directive, but with the change to a Labour government came to support the ban and has introduced domestic controls far beyond those required in the eventual directive.


(iv) United Kingdom


(a) Broad ban  Tobacco advertising in the United Kingdom had been governed by voluntary rules, whose effectiveness the Government came to doubt.114 This position was dramatically changed by the Tobacco Advertising and Promotion Act 2002 which banned most forms of tobacco advertising and promotion.115 Adopted after the European Court of Justice annulled the first directive, this was an indication that the UK was going to take a tough stance on tobacco as flagged up the White Paper, Smoking Kills.116 The constitutional limitations placed by the Treaty on the European legislator did not apply to the national Parliament.


(b) Point of sale  Limited point of sale advertising is still currently allowed. The Tobacco Advertising and Promotion Point of Sale Regulations 2004117 restrict the advertising allowed at point of sale to one A5 size sheet containing the name, emblem or other feature, price and size the price relates to. Thirty per cent of the surface has to be taken up with a health warning and details of the NHS Smoking Helpline.118 Equally advertisements on vending machines can be no larger than the actual packs and must contain health warnings covering 30 per cent of the surface. There was an unsuccessful legal challenge to these Regulations on commercial free speech grounds.119


(c) Displays  The display of tobacco products had been seen as a potential chink in the legislative armoury restricting tobacco advertising. Prominent displays on gantries behind the till, including promoting brands by making arches on top of gantries, or stacks of merchandise in duty free shops have been cited as examples of displays which although legal were considered against the spirit of the point of sale restrictions.120 Section 8 of the Tobacco Advertising and Promotion Act 2002 provided for displays to be regulated but no regulations had been introduced, however the Health Act 2009 amended this to introduce a prohibition on tobacco displays and the power to introduce regulations on the display of tobacco prices.121


It is likely that the tobacco industry will challenge the controls on displays on the basis that they unduly restrict the sale of a legal product and are disproportionate. A lot is likely to be made of their impact on small businesses. One suspects many of these arguments are theoretical as smokers are likely to continue to know which shops in their locality sell cigarettes or can easily ascertain this, but the legal defence of the law may need evidence of its effectiveness if this prohibition to be justified as an appropriate response. The Government is clearly aware of the need to win the argument in its Consultation on the Future of Tobacco Control.122


Bans on displays of tobacco products are still fairly recent, but evidence from Iceland, the first country to introduce the ban in 2001, might suggest it can help reduce smoking amongst young people.123 Australian research suggests displays in stores can predispose teenagers to smoke and encourage smokers, including those trying to quit, to make impulse purchases.124 Such displays may reinforce smoking as a common and socially acceptable activity.125 Similar plans to ban displays have been announced in Finland and Ireland and the EU is consulting on either restricting displays and promotions at the point of sale (for example only one package per brand) or banning such promotions and displays.126


Interestingly the UK government gave as one of the express objectives of introducing this rule the ‘de-normalisation’ of tobacco use.127 One response to the consultation was that it was inappropriate to seek to ‘de-normalise’ the use of legal products.128 This really is the nub of modern public health policy. If ever it is litigated it is to be hoped that the courts’ appreciate the unique nature of tobacco and appreciate this de-normalisation objective brings public health benefits. Any unfairness at the government seeking to de-normalise a legal product is only due to the unique circumstances which allow such a dangerous product to be on the market at all.


(d) Brand sharing  The Tobacco Advertising and Promotion (Brand Sharing) Regulations 2004129 seek to prevent the circumvention of advertising and promotion restrictions through using tobacco brands on other products which are not subject to the same restrictions. The scope for circumvention is obvious; one of the exceptions to the ban gives a privileged position to features first used in connection with a tobacco product on or before 1 September 2002 within the European Economic Area.


(e) Tobacco accessories  Another loophole that can be potentially exploited is the promotion of tobacco via accessories such as rolling paper. Government is keeping this under review.130


(v) United States


In 1938 the FTC’s powers were broadened to cover unfair and deceptive business practices as well as unfair competition. The FTC acted against various health claims made by Reynolds, American Tobacco, Lorillard and Phillip Morris.131 Although the FTC was usually eventually successful in these cases, the tobacco lawyers used their resources effectively to spin out the litigation for between 8–13 years and as there was no injunctive power to restrain the advertisements in the meantime it was aptly commented that, ‘Like astronomers studying stars millions of light years away, the FTC commissioners were constantly coming to conclusions about phenomena that were no longer in existence’.132 These cases nevertheless demonstrated that the FTC could exercise some control over health claims in cigarette advertising.


The early 1950s saw a flurry of cases in which the FTC acted against health claims that could not be substantiated. The tobacco companies might have thought they were being unfairly treated for whilst official policy was to encourage lower tar products, they were being criticised for advertising that fact. The paradox is that low tar products may not be any safer, but equally government was certainly potentially perceived as giving mixed signals.


In 1955 the FTC issued a voluntary seven point Cigarette Advertising Guide to cigarette makers which ruled out medical claims, but allowed factual statements about the filter styles and tar and nicotine yields and permitted them to wax lyrical about the taste and pleasure of the product. The FTC was proving a rather toothless regulator. The impression was being given that tar yields had been lowered when in fact they were sometimes higher than previously and during 1958 six brands simultaneously claimed to have the lowest tar and nicotine yields.133 In response, for a period during the 1960s, the FTC policy was to come to a voluntary agreement that tar yields should not be disclosed.


On January 25, 1964, FTC published a proposed Trade Regulation Rule for the prevention of unfair or deceptive advertising and labeling of cigarettes in relation to the health hazards of smoking. In response the industry voluntarily adopted the Cigarette Advertising and Promotion Code in April 1964.134 Key aspects of the Code, as revised in 1991, include provisions prohibiting advertising:


(a) that appears in magazines ‘primarily directed to’ persons under 21 years of age;


(b) that represents cigarette smoking as essential to social prominence, distinction, success, or sexual attraction;


(c) that uses models or other characterisations who appear to be under 25 years of age;


(d) that suggests that healthy looking models derive their attractiveness from smoking or that good health is due to smoking;


(e) that depicts a smoker as any person participating in, or obviously having just participated in, a physical activity requiring stamina or athletic conditioning beyond normal recreation;


(f) that makes health claims;


(g) that uses sports celebrities who have special appeal to persons under 21 years of age. The Code also prohibits giving samples to persons under 21 or near schools or any other center of youth activity.


Initially the Code was enforced by an administrator, but by 1970 all companies had abandoned the office of the Code Administrator. As early as 1967, an FTC Report to Congress pointed out loopholes in the Advertising Code. Bans on advertising in publications directed to under 21 year-olds did not prevent them appearing during television shows with audiences where at least 45 per cent of the viewers were under 21; cigarette advertising portrayed physical activity, but was careful not to show the actual smoker as a participant, and implied smoking contributed to success, even if it is not essential to it.


In May 1981, a Code of Cigarette Sampling Practices was adopted that promised the cigarette companies would not distribute cigarette samples to persons under 21.


One of the most debated issues in recent years has been the use of the ‘Joe Camel’ cartoon to promote R.J. Reynolds’s ‘Camel’ brand. Critics saw this as an attempt to flout rules and appeal to youth,135 but the FTC refused to act against the use of the cartoon camel.136 The use of cartoons was banned under the MSA.


In addition to the prohibition on targeting youth mentioned above, the MSA also imposed restrictions on advertising, promotion and sponsorship. Participating manufacturers had to cease outdoor and transit advertising other than in adult-only facilities, although signs up to 14 square feet were allowed where tobacco was sold; no payments could be made for product placement in most media apart from adult-only media; the use of brand names on other merchandise was no longer allowed and it was no longer permissible to allow third parties to use brand names; and sponsorship was limited to one event per year with the sponsorship of certain events prohibited altogether,137 although sponsorship by parent company rather than brand is permitted. Material misrepresentations of facts regarding the health consequences of using tobacco products were also prohibited.138 These were only partial restrictions and despite them advertising spending on tobacco ballooned from $6.7 billion in 1998 to $11.2 billion in 2001, an increase of 66 per cent.139 This illustrates the need for advertising bans to be comprehensive for advertising and marketing expenditure is rather like a tube of toothpaste when squeezed with restrictions on advertising in one form simply displacing spending to another form of promotion.


The FDA now has powers, under the FSPTCA 2009, to regulate advertising and promotion to the full extent permitted by the First Amendment.140 It had to introduce the 1996 annulled FDA Regulation141 with some specific amendments.142