Chapter 2Views on the bill
3.1This chapter considers evidence received from submitters and witnesses regarding the Public Health (Tobacco and Other Products) Bill 2023 (the bill, the main bill) and the Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023 (Consequential Amendments and Transitional Provisions bill) (together,the bills).
3.2Evidence to the inquiry was starkly divided into those expressing strong support for the proposed legislation and those expressing strong opposition.
3.3Support for the legislation primarily came from non-government organisations within the health sector, academics, and other public health experts and advocates, and opposition to the reforms came largely from the tobacco industry, retailers and other industry bodies.
3.4This chapter sets out these views on the bills and concludes with the committee’s view and recommendation.
Overarching views on the bill
3.5The Department of Health and Aged Care (the department) outlined that the reforms in the bill ‘aim to improve the public health of Australians by discouraging smoking and the use of tobacco products and restricting the promotion of e-cigarettes’ by:
consolidating various Commonwealth tobacco related laws, regulations and instruments and formalising requirements previously addressed through court-enforceable undertakings;
modernising and simplifying existing provisions; and
introducing new measures to discourage smoking and tobacco use and prevent the promotion of e-cigarettes.
3.6Several submitters and witnesses expressed strong support for the broad purpose and aims of the bills.
3.7Cancer Council Australia strongly supported the bill and considered that the totality of the reform package can be expected to ‘exert a major effect’. It submitted that in combination with other strategies, such as those outlined under Australia’s National Tobacco Strategy 2023–2030, the bill will ‘greatly accelerate reduction in smoking over the next seven years’.
3.8The Australian Nursing and Midwifery Association similarly welcomed the reforms, and considered them an important step towards improving:
the health and wellbeing of the Australian community and of future generations; and
pathways to reduce the burden on Australia’s health and aged care system.
3.9Dr Michelle Jongenelis, a Principal Research Fellow at the University of Melbourne School of Psychological Sciences, commended the government for its comprehensive and evidence-based package of tobacco control legislation, which in her view will ‘strengthen Australia’s approach to tobacco control and significantly improve the lives of the most vulnerable members of our community’.
3.10Dr Jongenelis, amongst other inquiry participants such as the Lung Foundation Australia, Victorian Health Promotion Foundation (VicHealth), and AssociateProfessor Becky Freeman, encouraged the bills be passed without delay. Others urged the bill to be passed urgently.
3.11In contrast, some submitters raised concerns that the bill may not achieve its objectives. For example, the Police Federation of Australia suggested that the intent of the bill ‘will be undermined and not achieved unless the government has a concerted effort to attack the proliferation of illicit tobacco and vape products currently readily available to the public’.
3.12Similarly, Phillip Morris Australia considered that the bill ‘risks failing’ its core purpose to reduce smoking rates in Australia if the illicit tobacco market is not adequately addressed:
One of the central objectives of the Bill is to reduce daily smoking prevalence in Australia. However, this simply cannot be achieved if one sizeable component of the tobacco market (illicit) is being ignored and allowed to grow at an exponential rate.
3.13Other industry and retailer representatives also suggested that the bill would lead to ‘unintended consequences’ such as growing the illegal tobacco trade and various impacts on small businesses.
Streamlining and consolidating
3.14Several submitters supported the streamlining, consolidation and modernisation of the Commonwealth’s tobacco control legislative framework as proposed by the bill.
3.15Amongst other submitters, Associate Professor Freeman recognised that currently, Australian tobacco laws are spread across eight different laws, regulations, and voluntary agreements, and that the proposed reforms would bring these disparate pieces of legislation together under one Act.
3.16The Public Health Association of Australia considered that the bill represents ‘good legislative housekeeping’ and the Cancer Council Australia noted that consolidating the legislation would reduce red tape and the duplication of portfolio responsibility for policy and enforcement.
3.17Similarly, the National Health Foundation of Australia submitted that consolidating existing legislation would increase the strength and clarity of tobacco laws, as well as streamline regulation.
National framework and international standards
3.18Some submitters observed that the bill will help achieve Australia’s national tobacco control targets, and assist Australia to regain its position as a leader in tobacco control internationally.
3.19The Public Health Association of Australia noted that a key target of the National Tobacco Strategy 2023–2030, agreed to by all Australian governments, is to see national daily smoking prevalence reduced to less than 10 per cent by 2025, and less than 5 per cent by 2030. The Public Health Association of Australia considered that the bill ‘actively assists in achieving these vital targets’ and ‘picks up a number of measures drawn from international best practice’.
3.20Professor Emily Banks of the National Centre for Epidemiology and Population at the Australian National University, noted that evidence indicates that Australia is not on track to achieve its 2030 tobacco control targets, but that the bill contains strong measures that will support accelerated action. She also submitted:
Australia is a recognised leader in tobacco control. The Public Health (Tobacco and other Products) Bill 2023 is critically important for tobacco control in Australia. It is also of great international importance in terms of demonstrating best practice and providing an example for the rest of the world as to what can be done to combat tobacco.
3.21The Thoracic Society of Australia and New Zealand similarly observed:
Australia is traditionally a world leader in tobacco control measures, and this is in line with the world-leading expertise which we possess and must continue to foster. This legislation which will help Australia regain its leadership in tobacco control and sustain our ongoing obligations under the World Health Organization Framework Convention on Tobacco Control.
3.22Associate Professor Becky Freeman also echoed these sentiments:
It's been a long time since we had the plain packaging reforms, when Australia was heralded as a world leader in tobacco control. These packages of reforms together help put us back on the map and catch us up with other world-leading countries like Canada and New Zealand.
3.23Ms Laura Hunter, Co-Chief Executive Officer of the Australian Council on Smoking and Health outlined that the bill is evidenced-based, formed by extensive consultation with the public health sector, and reflects international learnings:
The measures proposed in this bill before you are all based on sound scientific research, including the evaluation of measures that have been in place in other countries for some time now. All of these reforms have already been adopted in at least one other country. However, to our knowledge, no other jurisdiction has done them all or all at the same time.
3.24Conversely, Philip Morris Australia submitted that the bill does not address the illicit tobacco recommendations of the National Tobacco Strategy 2023–2030.
Advertising and sponsorship prohibitions
3.25Broadly speaking, many submitters supported the bill’s advertising and sponsorship prohibitions, particularly those that extend such prohibitions to e‑cigarette advertising.
3.26Associate Professor Freeman considered that the reforms ‘bring the tobacco advertising and sponsorship laws into the digital age.’
3.27Further, in a joint submission, EmeritusProfessors Mike Daube and SimonChapman reflected that the bill contains ‘more comprehensive curbs on tobacco marketing’ and takes into account modern and novel forms of online marketing to protect all in the community, particularly children and young people.
3.28Cancer Council Australia recognised that the bill modernises limits on the marketing of tobacco products and introduces several controls that have been in place in other countries for some time. It cautioned the committee about the impacts of any delays in introducing the new regulations:
Any delay in the introduction of new regulations without doubt would be exploited by tobacco companies and would result in significant exposure of Australians, particularly young Australians, to the highly sophisticated kinds of marketing still allowed in some other countries.
Expansion of advertising prohibitions to include e-cigarettes
3.29Some inquiry participants particularly welcomed the expansion of advertising prohibitions to include e-cigarettes. For example, the Western Australian Department of Health submitted:
E-cigarette advertising is present across a range of media channels that have broad reach among young people, including social media. The Department supports proposed measures to prohibit the advertising, promotion and sponsorship of e-cigarette products in the same way as tobacco products.
3.30The Australian Nursing and Midwifery Association considered that enhancing laws to address emerging tobacco related risks including vaping and e‑cigarettes, and the tobacco industry’s latest approaches to marketing and advertising, will mean that many Australians will have healthier and longer lives.
3.31The National Heart Foundation of Australia also supported these measures and emphasised the need for Australia's tobacco control legislation to keep up with, and respond to, the introduction of new products such as e-cigarettes. It stated:
Tightening Australia's legislation to adequately capture e-cigarettes is one important step in preventing a whole new generation becoming addicted to nicotine and suffering the negative health impacts that e-cigarettes inflict. The Heart Foundation supports capturing e-cigarettes in advertising restrictions.
3.32The Public Health Association of Australia also considered online marketing to be an ongoing concern, particularly marketing which reaches children. It noted that provisions in the bill which would allow the minister to make regulations to keep up with mutating online marketing techniques support the objectives of the legislation.
Retailer perspectives on advertising provisions
3.33Some retailer representatives who submitted to the inquiry did not support the bill’s advertising provisions, citing concerns that these provisions will impact the ability of businesses to communicate with customers and/or suppliers.
3.34For example, the Australian Lottery and Newsagents Association noted that the advertising and sponsorship proposals may compel their members to modify existing signage, both in person and online, which ‘could result in significant associated costs’.
3.35Similarly, Ritchies Stores Pty Ltd (Ritchies Stores) stated:
Ritchies do not agree with the draft legislation on the advertising or sponsorship provisions, owing to the limitations it will impose on the Ritchies brand, our ability to advertise our business and our commercial obligations through business transactions and required communication.
3.36Ritchies Stores also raised concerns that the bill would limit the ability to discuss commercial business transactions through business-to-business communications with tobacco manufacturers.
3.37This concern was also highlighted by Rigters IGA Supermarkets:
The proposals to restrict or even sever our business communications with suppliers and manufacturers not only strike at the very core of our business operations but also establish a dangerous precedent for our ability to conduct business … We oppose any excessive governmental interference that dictates how we can engage with our lawful suppliers.
3.38Contrastingly, Retail and Trade Brands Advocacy (RTBA), a group of businesses, retailers and trademark holders ‘working to minimise the impact of criminal conduct on the Asia-Pacific trading environment’ submitted:
RTBA notes the restrictions on advertising, which are in line with community expectations that tobacco products are not advertised, and that smoking is not promoted as an activity.
We also note the exemption for information published in trade publications about tobacco products, which is welcome and should be maintained through the proposed legislation.
3.39Further, witnesses from Cancer Council Australia and the Australian Council on Smoking and Health suggested that the proposed exemption from advertising prohibitions to allow business-to-business trade communication should be limited further, to text only, and should specifically exclude the use of video, audio, images and promotional objects in trade communications.
Suggested amendments to advertising and sponsorship provisions
3.40Some inquiry participants suggested further amendments to strengthen the bill’s provisions relating to the prohibition of tobacco and e-cigarette advertising and sponsorship.
3.41A key concern regarding sponsorship provisions raised by a number of inquiry participants, was in relation to the proposed exception that would permit political donations from tobacco and e-cigarette companies.
3.42For example, the Royal Australian College of General Practitioners (RACGP) recommended stronger provisions to stop tobacco and/or vaping industry donations to political parties or individual politicians. The RACGP also advised that such provisions should apply to entities that might be acting on behalf of the tobacco and/or vaping industry.
3.43Further, whilst the National Aboriginal Community Controlled Health Organisation (NACCHO) agreed with the prohibition of tobacco and e-cigarette advertisements and sponsorships within the bill, it too raised concerns around the bill’s exceptions for political donations:
NACCHO agrees with the prohibition of tobacco and e-cigarette advertisements and sponsorships within the Act, although is very concerned with the sponsorship exceptions relating to political donations, gifts, and electoral expenditure … Exemptions to bans on tobacco and e‑cigarette sponsorship for politicians, political parties, members of Parliament and electoral candidates creates a significant conflict of interest which stands to affect the health and wellbeing of Aboriginal and Torres Strait Islander peoples, and indeed all Australians.
3.44NACCHO specifically recommended that members of Parliament, electoral candidates, and political parties, by way of political donation or electoral expenditure, should not be exempt from entering into tobacco or e-cigarette sponsorships, or that definitions of tobacco and e-cigarette sponsorships are expanded to include these parties.
3.45The Lung Foundation Australia also considered that a full legislative ban on political donations of any type by the tobacco industry is required.
3.46The Explanatory Memorandum to the bill states that the purpose of the provision that provides an exception for tobacco sponsorship for political donations and electoral expenditure, ‘is to avoid the sponsorship prohibition in the [b]ill being found to interfere with the constitutional limitation found in the implied freedom of political expression’.
3.47Other suggested amendments put forward by inquiry participants to strengthen the bill’s advertising and sponsorship provisions included:
That definitions of ‘tobacco sponsorship’ and ‘e-cigarette sponsorship’ under the bill should be broadened to ensure contributions to bodies corporate, and other organisations and causes are also captured where these have the aim, effect, or likely effect of promoting smoking or vaping.
In relation to the definition of ‘targeted online advertising’ that:
subclauses 30(3) and 56(3) be amended to include a power to prescribe by way of regulation further circumstances in which a tobacco or e-cigarette advertisement made available to, or accessible by, a person using the internet will be taken to be made available to, or accessible by, the public or a section of the public.
That exceptions for artistic works be tightened where if the artist or academic receives a payment of any kind from a tobacco company then that material serves as a prohibited advertisement.
That tobacco industry broadcasting of corporate social responsibility activities is banned.
Plain packaging and tobacco product requirements
3.48Inquiry participants broadly welcomed the bill’s range of proposed plain packaging and tobacco product requirements.
3.49For example, Dr Matthew Rimmer, Professor of Intellectual Property and Innovation Law at the Australian Centre for Health Law Research at the Queensland University of Technology, supported the bill’s various measures for plain packaging and the extension of these requirements to e-cigarettes and other emerging products:
This submission endorses the range of enhanced measures for plain packaging of tobacco products in Australia – including pack and product standardisation; prohibited terms; updated graphic health warnings; health promotion inserts; the regulation of novel product design features; and the prohibition of certain ingredients. This submission supports the extension of the plain packaging regime to e-cigarettes, vaping, and other emerging products.
3.50Dr Rimmer considered that these measures will ‘enhance public health messages, boost outcomes, and eliminate counter-messaging by the tobacco industry’.
3.51The Western Australia Department of Health also outlined its support for proposal to further standardise plain packaging, and the appearance, features and contents of tobacco products.
3.52The Australian Council on Smoking and Health also welcomed these measures:
We welcome the packaging and product requirements set out in Chapter 3 and the Regulations, particularly given that this hazardous product has had remarkably few restrictions on their composition to date. We commend these requirements as appropriate and much needed.
Bans on brand and variant names
3.53The National Heart Foundation of Australia explained that there is a long history of tobacco product manufacturers using brand and variant names to imply that some tobacco products have reduced harm over others, despite evidence indicating that products including those described as ‘low-tar’ or ‘light’ offer no reduced disease risk among smokers. It expressed support for provisions that limit the use of appealing brand and variant names that imply reduced harms and considered that the bill closes a number of loopholes that currently allow the tobacco industry to use such terminology.
3.54Cancer Council Australia and the Australian Council on Smoking and Health highlighted that the bill will prohibit the use of brand and variant names that ‘distract consumers with connotations of exciting lifestyle advantages and falsely imply reduced harm’.
3.55Representing the RACGP, Dr Hester Wilson also expressed support for provisions that prohibit wording that suggests tobacco products are safer, healthier or low-tar.
3.56Professor Coral Gartner, Dr Kylie Morphett and Ms Ara Cho of the NHMRC Centre of Research Excellence on Achieving the Tobacco Endgame endorsed these measures and provided further suggestions:
We agree with making names of colours prohibited terms list in S73, such as ‘white’. Colour coding has been used to give the appearance of lower risk, such as associating lighter colours with highly ventilated cigarettes and can therefore also be misleading similar to terms such as ‘light’ or ‘mild’. Some colours are universally associated with positive aspects, such as green implying low environmental impact. We also suggest that terms that connote ‘environmentally friendly’ or ‘low carbon emissions’ be prohibited terms. Words such as ‘clean’ and ‘fresh’ … [t]he names of gemstones and metals may also confer images of quality (e.g., diamond, sapphire, platinum, gold, and silver) and should be prohibited terms.
3.57In contrast, tobacco industry representatives Philip Morris Australia and Imperial Brands Australasia opposed prohibitions on certain brand and variant names and rejected the premises that such terminology is misleading. For example, Imperial Brands Australasia submitted:
It is proposed that the use of terms/descriptors in brand and variant names including colours such as ‘black’, ‘blue’, ‘gold’, ‘red’ and ‘white’ falsely imply reduced harm. Imperial disagrees with the Government’s position on the colour variant naming convention and opposes the proposed prohibition on words which are colours.
3.58Some retailers also opposed these reforms, suggesting that brand and name changes will cause confusion amongst both customers and staff. Cignall also suggested that these reforms will cause ‘significant IT changes’ and impose costs on retail businesses.
Standardisation of tobacco pack and pouch sizes
3.59Public health advocates and academics who gave evidence to the inquiry broadly supported measures to standardise tobacco pack and pouch sizes.
3.60Cancer Council Australia submitted that, as drafted, the bill will standardise tobacco product size (pack, pouch, and cigarette stick sizes) to reduce the differentiation that is currently ‘undermining the effectiveness of tobacco tax increases in reducing tobacco consumption and making products more attractive and affordable to young people’.
3.61The National Heart Foundation of Australia also endorsed these measures and explained that the current availability of different cigarette and roll your own pack sizes allows for tobacco product differentiation based on size and price, where smaller products allow a lower entry price point for young people, and larger pack sizes can make it harder for people to quit smoking.
3.62There were mixed views amongst tobacco industry and retailer submitters on the standardisation of pack sizes.
3.63Philip Morris Australia submitted that this measure would ‘bring Australia into line with the majority of other comparable countries in the world’.
3.64Australian Lottery and Newsagents Association noted that its members have ‘mixed opinions’ regarding the standardisation of pack sizes and suggested that illegal tobacco is predominantly sold in packs of 20. This point was also raised by Jones Retail Group, Desire Group Pty Ltd, the Australian Association of Convenience Stores, Westbury’s Mundingburra IGA and Master Grocers Australia, which all opposed this reform.
Updated and on-product health warnings
3.65The Australian Council on Smoking and Health considered that updating and improving health warnings on tobacco products will better inform consumers about the effects of tobacco use, including ‘the breadth and magnitude of which are still greatly underestimated’. Further, it endorsed reforms that would require dissuasive features on factory-made cigarettes, as this would reduce the appeal of smoking after the product has been removed from the pack and whilst it is being used by peers. It noted that this is crucial in the modelling of smoking behaviour in young people.
3.66The National Heart Foundation of Australia highlighted that health warnings on tobacco products were last updated in 2012 and that since then, new evidence has emerged on the health effects of tobacco use. It continued:
It is appropriate to update the warnings to best reflect the latest evidence about what we know about the health impacts of tobacco smoking. This will ensure that Australians are adequately informed on the health consequences of smoking. The Heart Foundation supports updating and improving graphic health warnings on packaging.
3.67Emeritus Professors Mike Daube and Simon Chapman were of the view that updated health warnings, along with new approaches including warnings on cigarette sticks, are benefits of the legislation.
3.68Provisions to rotate graphic health warnings on tobacco products were also supported by the Australian Lottery and Newsagents Association and the Australian Association of Convenience Stores, who both noted that this measure would assist in the identification of illegal tobacco products.
3.69Representing Cancer Council Australia, Dr Michelle Scollo noted that messages on individual cigarette sticks would distinguish Australian tobacco products from illicit products currently in circulation and that these kinds of measures constitute a strong anticounterfeiting measure.
3.70In contrast, Mrs Pamela Wright, who noted she represented a tobacconist and convenience stores, argued this measure will be ineffective from stopping people from smoking.
Health promotion inserts
3.71Measures requiring health promotion inserts in tobacco product packaging were broadly supported by public health advocates. For example, CancerCouncil Australia agreed that as drafted, the bill will require health promotion inserts to be included in packs to encourage and empower people who smoke to make use of techniques and services that support quitting.
3.72The Australian Council on Smoking and Health strongly endorsed these measures and made some suggestions as to what these messages could include:
We are also strongly supportive of the inclusion of health promotion inserts and the rotation of multiple messages. We would suggest that some of this messaging could include simple calculations demonstrating the savings from quitting smoking, which has proven to drive behaviour change in the past, plus messaging that would aid in cessation but not demonise people who smoke.
3.73Professor Coral Gartner, Dr Kylie Morphett and Ms Ara Cho of the NHMRC Centre of Research Excellence on Achieving the Tobacco Endgame, affirmed that only prescribed health promotion inserts and onserts that comply with the regulations should be permitted, and that no additional information should be allowed to be added by manufacturers or other entities in the supply chain, such as retailers.
3.74NACCHO also welcomed the requirement of health promotion inserts but suggested that careful consideration should be given to the content of such warnings. NACCHO explained that previous concerns have been raised regarding the possible adverse impacts of negative messages relating to smoking on Aboriginal and Torres Strait Islander peoples, and added:
NACCHO would welcome future opportunities for community-controlled input and consultation in developing any health inserts in order to ensure that a strengths-based approach to messaging which empowers Aboriginal and Torres Strait Islander peoples can be implemented.
3.75Some retailers raised concerns about the environmental impacts of such inserts and Philip Morris Australia submitted that the health promotion inserts requirement is impractical and ‘problematic as proposed’ from a product manufacturing standpoint.
3.76The department advised the committee that further consultation will be undertaken for future updates to the draft regulations, including in regards to images for the new graphic health warnings and health promotion inserts.
Restrictions on menthols and other flavours, ingredients, features and accessories
3.77Provisions banning menthols and other flavours, features and contents of tobacco products were broadly welcomed by health advocates.
3.78For example, the Western Australia Department of Health endorsed the range of these measures and explained how they are important in reducing the palatability and attractiveness of tobacco products, particularly in young people:
The Department supports the proposed regulations to further standardise … the appearance, features, and contents of tobacco products. It is well established that additives and product design features increase the palatability and attractiveness of tobacco products to new and existing smokers. Features such as menthol, flavour capsules, filter designs, and other novel accessories play a role in facilitating smoking initiation among youth.
3.79Further, The Public Health Association of Australia expressed support for provisions that provide regulation-making powers, allowing tobacco product ingredients to be prohibited where those ingredients may be contributing to increased palatability, appeal or addictiveness of tobacco products.
3.80The National Heart Foundation of Australia also noted its support for measures that prevent the use of specified ingredients (including menthol) in tobacco products, and actions to standardise the design and look of filters in cigarettes, including bans on crush balls and capsules in cigarette filters.
3.81The National Heart Foundation of Australia explained that research has shown Australian menthol-smokers were more likely to perceive that menthol cigarettes were less damaging, though this perception is incorrect. It also highlighted international examples and evidence relating to menthol bans and called for Australia to catch-up with its international counterparts:
Menthol bans have been put in place in a number of places including Canada, the United Kingdom, the European Union, Turkey, Moldova, as well as other nations. Evidence has shown that there are positive health impacts of banning menthol from cigarettes including increased quitting attempts and quit success among menthol smokers. Australia needs to needs to catch-up with other nations and prohibit menthol from being added to cigarettes to help reduce addiction and increase smoking cessation success.
3.82Dr Scollo, representing Cancer Council Australia, explained that this measure is in line with international guidelines under the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), and that cases in other countries have demonstrated the effectiveness of these measures for increasing quitting activity and have not resulted in increased illicit tobacco purchasing:
Regulating menthol and tobacco products is recommended in the implementation guidelines developed by parties to the World Health Organization's Framework Convention on Tobacco Control. The WHO study group on tobacco product regulation unequivocally recommends banning the use of menthol and its analogues, precursors, derivatives and so on. It also recommends banning synthetic coolants with a chemical structure or physiological and sensory effects similar to those of menthol.
… We're found a review of the literature shows that the results where these have been evaluated are very clear. For instance, in Canada, seven out of 10 Canadian provinces implemented bans on sales of menthol products by the year 2017, and by 2018, one year after those bans were implemented, people living in those provinces who smoked menthol cigarettes prior to the bans were more likely to successfully quit than people who smoked non-menthol.
… Importantly, there was no detected surge in purchasing of illicit cigarettes after the ban was implemented. Simply, countries such as the Netherlands, which has banned flavoured cigarettes and roll-your-own tobacco, including those with menthol flavour, has also shown significant increases in quitting activity post ban, and there was no detected increase of illicit purchasing or tobacco smuggling from outside the European Union in the year after the ban.
3.83The Australian Council on Smoking and Health considered that prohibiting companies from adding substances that reduce the harshness of tobacco smoke is a ‘highly cost-effective way of discouraging uptake and increasing cessation success across the whole population’.
3.84Associate Professor Becky Freeman noted her full support for the reforms, and in particular, she explained:
An overarching theme of these reforms is that they further limit the ability of the tobacco industry to manufacture and promote products that are attractive and appealing to young people. For example, manufacturers will likely no longer be able to insert flavour beads in filters that increase both cigarette novelty and palatability.
3.85In contrast, Phillip Morris Australia, Master Grocers Australia, the Australian Lottery and Newsagents Association and Australian United Retailers suggested that proposed measures aimed at reducing the attractiveness of tobacco products and reducing product appeal could divert consumers to the illicit market.
3.86Other suggestions proposed by submitters to further reduce the appeal and palatability of tobacco products included:
Prohibiting filter venting that perforates or puts holes in filter tipping paper.
Banning prohibited ingredients from being added to tobacco product accessories (in addition to tobacco products themselves).
Banning all ingredients, other than those in an approved list to be added to tobacco products, in recognition that the tobacco industry may develop new ingredients such as synthetic cooling agents to replace the sensation provided by menthol products.
Shisha, cigar, water pipe and heated tobacco products
3.87The committee received some submissions from manufacturers and/or sellers of shisha, cigar and waterpipe tobacco products who described differences between these products and to cigarettes, and called for differentiated or tailored regulations.
3.88The Australian Medical Association raised concerns that shisha tobacco products are exempt from some requirements in the bill and considered that this should be ‘further understood, defined and improved.’ It explained that shisha tobacco products are still harmful to health and should be subject to the same legislation as other tobacco products.
3.89The RACGP also noted the harmful impacts of shisha products, and questioned whether heated tobacco products were covered by the plain packaging and tobacco product requirements in the legislation.
3.90Ms Celia Street PSM, Acting Deputy Secretary of the Primary and Community Care Group at the Department of Health and Aged Care acknowledged that there are limited exceptions in the bill for shisha or water pipe tobacco products. In particular, she explained that shisha is exempted from the requirement that tobacco products not include molasses, as shisha tobacco by definition includes molasses. However, Ms Street confirmed that other product and packaging requirements will still apply to these products:
… all other restrictions in relation to ingredients, including flavours, will apply to shisha tobacco products. Shisha tobacco is also exempt from the standardisation requirements for packs to contain a specific mass or volume. The broader tobacco product requirements, such as plain packaging, mandatory markings and graphic health warnings, will apply.
3.91Regarding concerns around heated tobacco products, Ms Street confirmed that such products fall within the definition of e-cigarettes in the bill. and are regulated as prescription medicines under the Therapeutic Goods Act 1989, rather than through tobacco control measures.
3.92Ms Street explained that as such, tobacco products requirements such as plain packaging and graphic health warnings have not been extended to heated tobacco products though she also noted that under state and territory laws, consumers cannot lawfully access these products without a prescription.
3.93Ms Street noted that ‘refinement’ of the regulation of these products is being considered as part of the government's work on e-cigarette reforms.
Reporting and information disclosure requirements
3.94Newly proposed reporting and information requirements for the tobacco industry were widely supported by public health advocates and academics.
3.95Dr Matthew Rimmer advised that such measures will provide ‘much needed transparency’ about the operation of the Australian tobacco market – particularly in regards to data on sales volumes, pricing for specific brands and products, and information on tobacco advertising, promotion, and sponsorship activities.
3.96Dr Rimmer suggested that further consideration should be given to including offences for tobacco companies who provide false or misleading reports.
3.97Cancer Council Australia and the Australian Council on Smoking and Health considered that the bill will allow government to effectively design and more precisely evaluate the effectiveness of tobacco control policies through its proposed reporting and disclosure requirements.
3.98Associate Professor Freeman expressed similar sentiments in support of these measures:
[The reforms] will also introduce a higher degree of mandated tobacco industry transparency and reporting that has the potential to make future reforms faster and more responsive. Public health is always well behind tobacco industry marketing and sales innovations. Requiring that the industry fully report their marketing activities, rather than expending time and resources trying to track these activities, is far more efficient.
3.99The National Heart Foundation of Australia also endorsed the bill’s reporting and disclosure requirements and considered that such information is critical policy development to help reduce future tobacco smoking. It also highlighted that insights into tobacco industry promotional activities will help identify emerging trends on new and novel tobacco advertising, promotion and sponsorship activities that are undermining existing legislative frameworks.
3.100Professor Coral Gartner, Dr Kylie Morphett and Ms Ara Cho welcomed these measures and advised that making such data available to researchers will assist research efforts to monitor and evaluate the impact of new tobacco control policies. They also made some suggestions as to how these requirements could be strengthened.
3.101NACCHO appreciated that the bill aims to increase transparency of the Australian tobacco industry through reporting and disclosure of information by tobacco manufacturers and distributors, rather than through consumers. Further, it emphasised that data collected through these reports which relate to Aboriginal and Torres Strait Islander peoples, should be shared with Aboriginal and Torres Strait Islander communities, organisations, and researchers and made the following three recommendations:
Any reports relating to the volume of tobacco products sold or supplied in Australia should include disaggregated data relating to the geographic location and rurality of sale or supply, where possible.
In keeping with Priority Reform 4 of the National Agreement, any data or information relating to marketing, research and development by reporting entities, which involves Aboriginal and Torres Strait Islander peoples, should be available to Aboriginal and Torres Strait Islander communities and organisations.
Data or information relating to research, policy development or data analysis, which involves or affects Aboriginal and Torres Strait Islander peoples, should be accessible by Aboriginal and Torres Strait Islander communities, organisations, and researchers.
3.102In contrast, retail bodies and tobacco companies broadly opposed these reforms. For example, tobacco company Philip Morris Australia claimed that the bill’s reporting and disclosure requirements ignore the illicit tobacco market, will not achieve its objective of building an evidence base around the totality of tobacco consumption in Australia, and should ‘more clearly define the parameters of disclosable information’.
3.103Imperial Brands Australasia considered that the disclosure provisions represent ‘a significant overreach into private business’ and expressed concern about commercially sensitive information being held by government and disclosed to the public.
3.104The Australian Lottery and Newsagents Association and the Australian Association of Convenience Stores argued that proposed reporting requirements would put pressure on small and family businesses.
Compliance, enforcement and addressing the illicit tobacco trade
3.105The committee received limited evidence that specifically related to the bill’s compliance and enforcement provisions, however many inquiry participants outlined broader views on compliance and enforcement regarding the illicit tobacco trade. Both views will be discussed in the following sections.
Proposed compliance and enforcement provisions
3.106Submitters including the Western Australian Department of Health, the Australian Council on Smoking and Health, Dr Matthew Rimmer and the
PublicHealth Association of Australia expressed support for the bill’s compliance and enforcement provisions.
3.107The Public Health Association of Australia were of the view that the bill would actively assist enforcement and enhance the capacity of law enforcement agencies:
… it is clear that the enactment of the Bill would assist enforcement. The Bill consolidates multiple existing law and regulations made over several decades into a single more coherent statute, simplifying criminal prohibitions, as well as better underpinning the processes for policing and customs activities as well as criminal prosecutions. The Bill is therefore significantly pro-enforcement … Clearly, remaining with the present less well coordinated collection of legislation and regulations would be the anti-enforcement choice to take in this moment.
3.108Dr Matthew Rimmer, Professor of Intellectual Property and Innovation Law, also considered that the bill will support improved compliance and enforcement:
Chapter 6 of the Public Health (Tobacco and Other Products) Bill 2023 (Cth) will update compliance and enforcement provisions that will support more efficient and effective compliance and enforcement activities.
3.109Tobacco company Philip Morris Australia and the Australian Lottery and Newsagents Association also expressed support for improved compliance and enforcement measures, but emphasised the need for further enforcement and deterrent activities. Philip Morris Australia submitted:
[Philip Morris Limited] supports the intent of Measure 4 of the Impact Statement – Improve coverage, enforcement and compliance for tobacco control. We recognise that there is some appetite from the Department to refine its framework of investigative powers and penalties that are intended to deliver stronger compliance.
Legislative powers have been expanded to include provisions for greater penalties, infringement notices, and the ability to repossess products for analysis and testing. However, there is a significant risk that without a measurable plan of enforcement activity, these provisions will remain dormant elements of the new consolidated legislation.
3.110The Australian Lottery and Newsagents Association (ALNA) noted:
ALNA certainly endorses more efficient enforcement measures, but we want to emphasise the importance of developing significant new and collaborative deterrent actions, which the current legislation lacks, to dissuade illegal operators from selling illegal tobacco in Australia.
3.111Consumer Healthcare Products Australia, an industry body for manufacturers and distributors of consumer healthcare products, considered that measures proposed in the bills in relation to e-cigarettes, or nicotine vaping products (NVPs) overlap with existing regulations for therapeutic goods and that this overlap will likely weaken the enforcement of regulations. It explained:
CHP Australia is of the strong view that introducing new NVP specific regulations and legislation simultaneously catching NVPs in both a therapeutic goods category and a tobacco products category serves only to weaken enforcement and penalties for noncompliance with existing regulations. Such a dual approach to regulation will also create areas of uncertainty for unscrupulous players to exploit. The Government needs to decide whether NVPs are to be treated as therapeutic goods or as tobacco products. If the former, then the existing regulatory controls should be applied without modification. If the latter, then effective controls need to be introduced and enforced.
3.112Ms Celia Street PSM, Acting Deputy Secretary of the Primary and Community Care Group at the Department of Health and Aged Care explained how the enforcement and compliance measures proposed in the bill will operate and assist in efforts to tackle the illicit tobacco trade:
The enforcement and compliance mechanisms provided under the bill are intended to achieve compliance with regulatory requirements. However, the expanded powers of entry for authorised officers may also increase the number of detections of illicit tobacco, so tackling illicit tobacco, and the organised crime syndicates that deal in its distribution and proceeds will continue to function through the Illicit Tobacco Taskforce and state and territory enforcement counterparts.
Broader concerns about the illicit tobacco trade
3.113Several tobacco and retail sector submitters opposed various aspects of the bill citing concerns that additional or tighter restrictions on regulated tobacco products will drive consumers to purchase illegal tobacco products and embolden this illicit market.
3.114For example, Philip Morris Australia contended that the bill ‘risks an accelerated proliferation of the criminal-run illicit tobacco trade’ and Imperial Brands Australasia argued:
Further reductions in the affordability of tobacco products, and more restrictions on the availability and accessibility to these products, will only increase consumer demand for illegal tobacco and vaping products.
3.115Master Grocers Australia similarly claimed:
[Master Grocers Australia] holds concerns that the Bill does not address the ‘knock on’ effects of certain provisions that will almost certainly drive some consumers away from either ceasing smoking or purchasing legal tobacco products and towards Australia’s burgeoning and illegal tobacco trade and therefore failing to meet all objectives of the Bill.
3.116Inquiry participants also called for greater enforcement efforts to address the illegal tobacco trade. Imperial Brands Australasia submitted:
Imperial continues to call for an increase in law enforcement at the retail level and suggests the Government address inadequacies in state and territory legislation and enforcement especially where it concerns retailers and an increase in other resources to law enforcement.
3.117Similarly, Australian United Retailers stated:
The Federal Government needs to increase enforcement efforts to reduce the supply of illicit tobacco and vapes. This can be achieved through measures such as an effective licencing scheme, increased penalties and greater resources for all Police agencies at the border and in the retail environment.
3.118Spano’s IGA submitted that illicit tobacco control measures and strong enforcement should be considered in conjunction with the proposed measures, and suggested that the bill’s provisions will ‘not work in their fullest intent if illicit tobacco is not taken seriously by the Federal Government’.
3.119The Police Federation of Australia also called for increased enforcement efforts, including a ‘National Illicit Tobacco Strategy’ as recommended by the Parliamentary Joint Committee on Law Enforcement in its inquiry into Illicit Tobacco, initiated in December 2015.
3.120Public health advocates and experts also recognised the problem of illicit tobacco in the Australian community but many refuted the claims by tobacco companies and retailers that proposed measures will drive consumers to the illicit tobacco market.
3.121For example, the Public Health Association of Australia explained that when implemented in other countries, measures such as those proposed by this bill have not shown to drive consumers to illicit products:
The measures that actually are adopted in this Bill to attempt to further drive down tobacco consumption – relating to packaging, additives, and other items – have not been shown in any other country to be a significant driver of consumer shift to illicit products. It cannot seriously be argued that public health measures have caused any recent increases in illicit tobacco sales, as there have been no new measures in tobacco regulation since the ‘plain packaging’ reforms introduced in 2012, now over a decade ago.
3.122Professor Coral Gartner also advised that there is no evidence to suggest that such measures would increase illicit tobacco. She also pointed out that similar arguments were raised when plain packaging reforms were first proposed:
There isn't evidence that these sorts of measures would lead to an increase in illicit tobacco. That's not to say that illicit tobacco isn't something that needs to be controlled, but that's a broader crime issue that needs to be addressed separately. Not progressing regulations that will improve public health through regulating tobacco products is not an effective way to reduce the illicit tobacco market… We had these arguments raised when plain packaging was being discussed, that it would lead to an increase in illicit trade, and there is strong evidence that that didn't happen.
3.123Professor Emily Banks told the committee that the main driver that can reduce illicit tobacco is the same that reduces legal tobacco – that is declining consumption. She emphasised the importance of driving down consumption from both a supply and demand point of view.
3.124Ms Laura Hunter, Co-Chief Executive Officer of the Australian Council of Smoking and Health also considered that the best way to stamp out the illicit market, is to help people to quit smoking and that this ‘piece of legislation is a huge step towards that’. Ms Hunter provided further explanation as to how the bill will address the illicit tobacco market:
This piece of Commonwealth legislation addresses the issue of illicits as far as it can. It will make it harder to counterfeit ... It will make it easier for authorised officers to go out to retail outlets and prosecute people for selling products that aren't plainly packaged and don't have those health warnings. We know that such products currently make up most of the illicit trade. The requirement for record-keeping and fines for not providing information will also help to keep those rogue operators out of the market.
3.125Ms Street, representing the department, clarified that the bill does not distinguish between tobacco products for which taxes have (licit tobacco) and have not been paid (illicit tobacco) and emphasised that use of any tobacco, regardless of its purported quality or the status of the excise being paid, poses a significant health risk.
3.126Ms Street also expanded on how the Commonwealth is addressing the issue of illicit tobacco, including through the Illicit Tobacco Taskforce:
Illicit tobacco enforcement and the elements of organised crime associated with its trade are the shared responsibility of relevant law enforcement agencies within the Commonwealth and the states and territories. At the Commonwealth level, the government established the Illicit Tobacco Taskforce on 1 July 2018. Ongoing funding has been provided to the Department of Home Affairs to combat illicit tobacco under the black economy package. This is in addition to ongoing funding for the Illicit Tobacco Taskforce within the black economy package.
3.127Ms Street gave further detail on how the Illicit Tobacco Taskforce functions, and explained that it forms part of a broader Australian Government response to the threat of illicit tobacco, and contributes to whole-of-government efforts to ‘proactively target, disrupt and dismantle serious actors and organised crime groups that deal in the illicit tobacco trade’:
The taskforce undertakes operational activity both at the border and against domestically cultivated illicit tobacco. The taskforce embodies a coordinated whole-of-government strategy to combat illicit tobacco that draws together the expertise, capabilities and powers of the members from Commonwealth agencies, including the Australian Border Force, the Australian Criminal Intelligence Commission, the Australian Transactions Reports and Analysis Centre, the Commonwealth Department of Public Prosecutions and the Australian Taxation Office, to reduce the supply of and demand for illicit tobacco, to protect Commonwealth revenue and to safeguard Australian communities from the significant threats posed by illicit tobacco and the criminals who profit from it.
Transitional arrangements
3.128Many retailers and industry bodies who gave evidence to the inquiry stated that the proposed three-month transition period contained in the reforms is insufficient. For example, the Australian Lottery and Newsagents Association submitted:
[Australian Lottery and Newsagents Association], and our members … believe the Government's proposed timelines are not adequate. We do not think the proposed three-month transition period to sell current stock and restock with re-regulated products is practical or feasible. Our members have voiced concerns, indicating that a three-month timeframe doesn't provide them sufficient leeway to sell off their inventory and comply with the new legal and regulatory stipulations…
3.129Desire Group Pty Ltd, Peries IGA Group, Rigters IGA Supermarkets, and Gippsland Business Development Group, expressed similar concerns, and contended that three months would not provide enough time to sell through existing stock.
3.130However, Ms Karlie Brown, Acting Assistant Secretary in the Tobacco and E‑cigarette Control Branch at the department, made clear that under the proposals, there will be a transition period for retailers of a total of 15 months from the date that the regulations take effect. She further explained:
… That's a 12‑month period intended to allow the industry to bring products into compliance, and then a further period of three months after which the products supplied to the market should be compliant with the new regime but during which time retailers will have an additional period to sell through any remaining stock.
3.131Philip Morris Australia considered that the transitional period is insufficient for industry, retailers and law enforcement agencies, and Imperial Brands Australasia asked the government to ‘reassess the 12-month implementation timeline and provide a more reasonable timeframe for manufacturers to make the required changes to ensure compliance with the new regulatory regime’.
3.132The department’s submission noted that the 12-month transition period from the date the regulations take effect for manufacturers, importers and distributors, will facilitate the industry putting the necessary arrangements in place to become compliant with the new requirements.
3.133The department also confirmed that resources will be prepared to ensure industry and consumers are informed of the changes and to support compliance with the reforms. It also advised that guidance materials will be prepared and distributed to support manufacturers and retailers to understand the new legislative requirements.
Committee view
3.134The committee notes the overwhelming support for the bills from public health experts and advocates, who widely considered the reforms will achieve their core objectives of improving the health of Australians by discouraging the use of tobacco products and restricting the promotion of e-cigarettes.
3.135The committee agrees with submitters’ calls for the bills to be passed urgently, in recognition of the imminent sunsetting of Australia’s current tobacco control laws, and the pressing need for further reforms given tobacco use persists as a key public health issue in Australia, remaining as our county’s leading cause of preventable death and disability and killing an estimated 20000 Australians each year.
3.136The committee strongly supports provisions that reestablish and tighten bans on tobacco advertising and sponsorships, as well as the extension of these prohibitions to apply to emerging products including e-cigarettes and vapes. The committee considers it vital that this bill brings Australia’s tobacco advertising and sponsorship laws into the digital age.
3.137The committee also welcomes the suite of new plain packaging and tobacco product requirement measures, including bans on menthols and other flavours and accessories, misleading brand and variant names, updated graphic health warnings, standardised pack and pouch sizes, and the requirement for health promotion inserts.
3.138The committee notes the concerns raised by tobacco industry and retailer representatives regarding these proposals. However, these measures were widely supported by public health experts and advocates and the committee agrees that they will work to drive down the consumption of tobacco products, support current users to quit, and discourage young people and other non‑smokers from taking up smoking in the first instance.
3.139The committee believes that the proposed reporting and disclosure requirements contained in the bill will provide increased transparency about the operation of the Australian tobacco market and that these measures will support the Australian Government to more effectively design and evaluate its tobacco control policies. It acknowledges that some concerns about these provisions were raised by tobacco companies and retail sector representatives.
3.140The committee also heard suggestions from tobacco industry and retailer representatives that the bill does not sufficiently address the illicit tobacco trade and that many called for increased enforcement measures. The committee acknowledges the importance of addressing the issue of illegal tobacco in the Australian community, however it notes that this issue largely sits outside of the scope of this bill and this inquiry. The committee is also of the view that the proposed compliance and enforcement measures contained in the bill will in fact provide a stronger deterrent for illegal tobacco activities, and support ongoing compliance and enforcement efforts.
3.141The committee recognises concerns amongst tobacco manufacturers and retailers about the bills’ proposed transition period, with many submitters arguing that a proposed transition period of three months is insufficient. However, the committee heard evidence from the department which confirmed that from the date the legislation takes effect, retailers have a transition period of a total of 15 months to sell through existing stock. The committee firmly considers that the bill provides sufficient time for manufacturers, importers, distributors and retailers alike to transition to the new requirements.
3.142 In line with guidance from the Department of Health and Aged Care regarding Article 5.3 of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), the committee has remained vigilant throughout the inquiry to the influence of both the tobacco industry, as well as entities which may have connections with the tobacco industry.
3.143The committee notes that two witnesses who gave evidence to the inquiry, the Australian Association of Convenience Stores and Master Grocers Australia, failed to answer questions put by committee members regarding their potential conflicts of interests despite being told that this would be requested immediately prior to their appearance. The committee considers the refusal by both witnesses to answer these questions in full, coupled with their apparent lack of understanding of the committees obligations under Article 5.3 as evidenced by their responses orally and in writing, deeply concerning. Transparency around inquiry participants’ connections with the tobacco industry is essential to the committee’s consideration of evidence and its deliberations as it finalises the inquiry.
3.144The committee remains alive to these issues and is committed to its obligations under Article 5.3 of the WHO FCTC going forward.
To conclude, the committee is pleased that the bills consolidate, streamline and modernise Australia’s existing tobacco control framework and believes that the reforms will assist in achieving Australia’s tobacco control targets, as set out in the National Tobacco Strategy 2023–2030, and help restore Australia as an in international leader in tobacco control.
3.145The committee recommends that the Senate pass the bills without delay.
Senator Marielle Smith
Chair