Chapter 1 Inquiry into Tobacco Plain Packaging
Referral
1.1
On 6 July 2011, the Minister for Health and Ageing, The Hon Nicola Roxon
MP introduced the following bills in the House of Representatives:
n Tobacco Plain
Packaging Bill 2011; and
n Trade Marks Amendment
(Tobacco Plain Packaging) Bill 2011.
1.2
The purpose of the Tobacco Plain Packaging Bill 2011 is to improve
health outcomes for Australians by reducing use, of and exposure to, tobacco
products by removing one of the last forms of tobacco advertising. As outlined
in the explanatory memorandum:
The Bill will make it an offence to sell, supply, purchase,
package or manufacture tobacco products or packaging for retail sale, that are
not compliant with plain packaging requirements.[1]
1.3
As the Tobacco Plain Packaging Bill 2011 includes restrictions on the
use of trade marks on tobacco products and the retail packaging of those
products, the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 was
introduced on the same date to complement the main bill. In her second reading
speech, the Minister for Health and Ageing explained:
This bill amends the Trade Marks Act to allow regulations to
be made in relation to the operation of the Tobacco Plain Packaging Bill 2011.
The objective of any such regulations would be to ensure that the practical
operation of the Tobacco Plain Packaging Bill 2011 does not prevent businesses
from registering new trade marks, or from protecting registered trade marks
against infringement.[2]
1.4
On 7 July 2011 the House of Representatives Selection Committee referred
both bills to the Standing Committee on Health and Ageing (the Committee) for
inquiry.
Context of the inquiry
1.5
While most forms of tobacco advertising have already been banned in
Australia through the Tobacco Advertising Prohibition Act 1992, words,
signs and symbols on tobacco products and packaging are currently exceptions to
the definition of ‘tobacco advertising’ in the legislation.
1.6
In August 2009 Senator Steve Fielding introduced a Private Senator’s
Bill seeking to amend product information standards to remove brands, trade marks,
and logos from tobacco packaging. In November 2009 Senator Fielding’s Bill was
referred to the Senate Community Affairs Legislation Committee which received
58 submissions. However, following prorogation of the 42nd Parliament
in July 2010, and after due consideration, the Senate Committee chose not to
continue its inquiry into the bill.[3]
1.7
In April 2010, responding to the recommendations made by the National
Preventative Health Taskforce in late 2009, the Australian Government announced
a comprehensive anti-smoking action package.[4] The package aims to
reduce Australia’s smoking rate to 10 per cent by 2018 and to halve the rate of
smoking among Indigenous Australians over time in line with targets set by the
Council of Australian Governments’ (COAG) National Healthcare Agreement. As
part of a wider suite of reforms which includes increasing tobacco excise,
restricting internet advertising of tobacco and additional funding for
anti-smoking social marketing, the Australian Government announced its
intention to introduce legislation to mandate plain packaging for tobacco
products.
1.8
Prior to introducing tobacco plain packaging legislation, the Australian
Government committed to consult broadly. The consultation process was
administered by the Department of Health and Ageing (DoHA). It comprised targeted
consultations with representatives of the tobacco industry (manufacturers, importers
and retailers), and wider consultation open to all stakeholders between 7 April
2011 and 6 June 2011. This allowed 60 days for interested parties to
comment on an exposure draft of the bill which was made available along with a
consultation paper. The consultation received 266 submissions from a range of
stakeholders, including public health organisations, non-government
organisations, the tobacco industry, and interested individuals.[5]
1.9
During the consultation DoHA met with representatives of the tobacco industry
on a number of occasions to discuss issues of concern.[6]
DoHA also met with a number of retail organisations including the Council of
Small Business Organisations of Australia, the Australian Newsagents
Association, the Master Grocers Association, the Service Station Owners
Association, Tobacco Station Group, the National Independent Retailers
Association, and the two major supermarket chains, Coles and Woolworths.[7]
1.10
The explanatory memorandum summarises the outcome of the DoHA’s
consultation as follows:
There was strong support for the Bill amongst the public
health and non-government organisations, including endorsement of the view that
the proposed plain packaging legislation was necessary for the government to
meet its commitment to Article 13 of the WHO FCTC [World Health Organisation
Framework Convention on Tobacco Control], and the guidelines issued by the
Conference of the Parties. Some submissions opposing the Bill claimed a
perceived inadequacy of evidence to justify the plain packaging measure; a
potential for detrimental impact on the tobacco industry and retailers; and the
potential for the Bill to be in breach of national trade mark and intellectual
property rights as well as international law obligations.[8]
1.11
The explanatory memorandum indicates that a relatively small number of
submissions made specific suggestions for changes to the exposure draft of the
legislation. One issue raised during the consultation related to the
importation of tobacco products packaged outside of Australia in non-compliant
packaging. Provisions in the exposure draft which would have prohibited this
importation were modified to allow importers to repackage goods into compliant
packaging once they are received in Australia.[9]
Conduct of the inquiry
1.12
Following referral of the two bills to the Committee on 7 July 2011, the
inquiry was promoted on the Committee’s webpage and through a media release
sent to a distribution list administered by the House of Representatives’
International and Community Relations Office. On 13 July 2011 an
advertisement was placed in The Australian inviting submissions from
organisations and interested individuals. The Committee agreed to a closing
date for submissions of 22 July 2011.
1.13
The inquiry received 63 submissions and 18 exhibits. The inquiry also
received other evidentiary material. This material included almost 1000 near
identical e-mails opposing the legislation from small retailers. There were
three variants of the e-mail, referred to a form letters 1, 2 or 3. The
Committee also received two variants of very similar correspondence, referred
to as template letters 1 or 2 that appear to have been written based on a set
of dot points. Template letter 1, opposing the legislation, was submitted by five
individuals. Template letter 2, supporting the legislation, was submitted by 12
individuals or organisations. Additional information received on the issue of
tobacco plain packaging included documents that had been prepared the Senate
Community Affairs Legislation Committee’s inquiry in the previous Parliament
and DoHA’s consultation on exposure draft legislation.
1.14
The Committee held a public hearing with representatives from British
American Tobacco, the Australian National Preventive Health Agency, the Cancer
Council Australia, National Heart Foundation and Quit Victoria (appearing
together), and the Department of Health and Ageing. The hearing was held on 4
August 2011 (See Appendix C) and focussed on the health related aspects of the
bills.
Tobacco Plain Packaging Bill 2011
1.15
According the explanatory memorandum the rationale for the adoption of
plain packaging of tobacco products is that it:
... will prevent tobacco advertising and promotion on tobacco
products and tobacco product packaging in order to:
n reduce the
attractiveness and appeal of tobacco products to consumers, particularly young
people;
n increase the
noticeability and effectiveness of mandated health warnings;
n reduce the ability of
the tobacco product and its packaging to mislead consumers about the harms of
smoking; and
n through the
achievement of these aims in the long term, as part of a comprehensive suite of
tobacco control measures, contribute to efforts to reduce smoking rates.[10]
1.16
The Bill is set out in six Chapters.
n Chapter 1 sets out
preliminary matters including commencement dates, objects of the Act,
definitions, application of the Act to external Territories and the Crown,
interactions with State and Territory laws, and Constitutional provisions.
n Chapter 2 creates the
regime that mandates the requirements relating to plain packaging of tobacco
products. It permits regulations prescribing plain packaging requirements and
conditions for the appearance of tobacco products to be made.
n Chapter 3 sets out
the offences and civil penalty provisions that will apply to conduct involving
non-compliant packaging and tobacco products.
n Chapter 4 creates the
powers of authorised officers to investigate contraventions of the Bill,
including search and seizure provisions.
n Chapter 5 creates
civil penalty and infringement notice regimes, which are designed to encourage
compliance with the requirements of the legislation.
n Chapter 6 includes
miscellaneous provisions, and creates the power by which the Governor-General,
on advice from the Government, may make regulations to give effect to the
legislation.[11]
Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011
1.17
The objective of the Trade Marks Amendment (Tobacco Plain Packaging)
Bill 2011 is to ensure that the practical operation of the Tobacco Plain
Packaging Bill 2011 does not prevent businesses from protecting registered
trade marks against infringement or from registering new trade marks. The
explanatory memorandum specifically states:
The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011
... is being introduced so, if necessary, the government can quickly remedy any
unintended interaction between the Tobacco Plain Packaging Act 2011 (the
Plain Packaging Act) and the Trade Marks Act 1995 (the Trade Marks Act).
The objective of any such exercise of power under the Bill will be to ensure
that applicants for trade mark registration and registered owners of trade
marks are not disadvantaged by the practical operation of the Plain Packaging
Act.[12]
1.18
In effect this means that owners of trade marks relating to tobacco
products will be able to use their trade marks, other than on retail packaging
and the products themselves, in ways that do not contravene the Tobacco
Advertising Prohibition Act 1992 or other laws. For example, owners will still
be able to sue trade marks on business correspondence.
Evidence
1.19
Evidence to the inquiry was starkly divided into those expressing strong
support for the proposed legislation and those expressing strong opposition.
Most submissions provided either broad ‘in principle’ support[13]
or opposition[14] for the legislation,
rather than commenting on specific provisions contained within the bills.
1.20
Support for the legislation came largely from government and
non-government organisations operating within the health sector, and other
public health advocates. In summary the rationale for support was based on the
understanding that plain packaging will:
n reduce the appeal of
tobacco products, particularly for younger or new smokers;
n increase the
visibility and impact of health warning on packaging; and
n reduce the scope for
confusion on the harmfulness of tobacco use.
1.21
Opposition to plain packaging came primarily, though not exclusively,
from tobacco manufacturers, importers of tobacco products, and retailers. In
summary the rationale for opposition is based on the following:
n that there is
insufficient evidence to indicate that the health benefits will be achieved as
a result of plain packaging;
n that there will be
negative impacts on manufacturers, importers and retailers of tobacco products;
and
n legal objections
associated with intellectual property.
1.22
The Committee considers these main issues below, noting that as a
Committee responsible for investigating issues related to health and/or ageing,
that the focus of its inquiry is on the health related aspects of the proposed
legislation.
Health issues
Evidence base
1.23
While there was no dispute among witnesses and submitters about the
damaging health impacts of tobacco use, there was some disagreement about the
efficacy of tobacco plain packaging as a measure to reduce tobacco use.
Supporters of the legislation stated that there is sound evidence to suggest
that tobacco plain packaging will have positive health impacts by reducing
tobacco use among adults, and by reducing initiation of tobacco use,
particularly among young people. Many of those opposing the legislation argued
that this is not the case.[15] In summary, the evidence
base used to support a move to tobacco plain packaging was questioned by the
tobacco industry, and supported by public health advocates.
1.24
Mr David Crow of British American Tobacco Australia criticised the
research that had been done on tobacco plain packaging, suggesting it had been
‘very limited in its scope’[16] and that there were more
effective ways of reducing tobacco use. He pointed to the 25 per cent increase
in tobacco excise implemented in the 2010-2011 budget[17]
and suggested that anti-smoking education measures should be increased as a
more effective way of reducing the smoking rate.[18]
1.25
The claim that the evidence base is insufficient was refuted by Mr
Maurice Swanson of The Heart Foundation Western Australia. He noted at the Committee’s
public hearing, that there was sufficient evidence from peer reviewed and other
published studies to support tobacco plain packaging as an effective measure to
reduce tobacco use.[19]
1.26
The Committee was provided with evidence from multiple witnesses and
submitters that showed a less favourable response by consumers to tobacco
products presented in plain packaging when compared with branded packaging.[20]
1.27
Ms Michelle Scollo of Quit Victoria expanded on this point noting there
was ‘a strong body of evidence’[21] overall, including approximately
30 rigorous experimental studies that had been conducted specifically on the
influence of tobacco packaging.[22] Ms Scollo reported that
all of these studies had concluded that the packaging of cigarettes was an
important marketing device for cigarette manufacturers, and that a reduction in
branding had made cigarettes less attractive, and had increased the power of
graphic health warnings.[23]
1.28
In responding to criticism of the evidence base, Professor Ian Olver of
the Cancer Council agreed that there was sufficient research to support the
implementation of tobacco plain packaging, and that in his view implementation
in Australia would itself establish more evidence to show the rest of the world
that plain packaging is an effective tobacco control measure.[24]
This point of view was supported by the Canadian Cancer Society, which
identified Australia as a potential role model for other countries considering
the introduction of tobacco plain packaging.[25]
1.29
Several submitters who did not support the introduction of plain
packaging believed that there would be no health benefits at all, some claiming
that it would have unintended health consequences, leading to an increase in
smoking, or an increase in medical problems due to the consumption of illegal
and unregulated tobacco products.[26] Some submitters also
suggested that plain packaging would make it easier for tobacco products to be
counterfeited,[27] and that increasing
cigarette prices would be a more effective mechanism to reduce the smoking
rate.[28] It was also argued that
plain packaging would force manufacturers to compete on price, rather than
brand,[29] with the unintended
consequence of reducing the price of tobacco products:
Moreover, in promoting the plain-packaging proposal, the [Department
of Health and Ageing] Consultation Paper fails to look at its impact on prices
of tobacco products. Price is regarded as the single-most-important determinant
of smoking behavior [sic], with higher prices leading to substantial reductions
in smoking rates. By removing the only non-price factor that brands can use to
inform customers and to compete, the only remaining form of competition will be
price. Lower prices have long been shown to increase smoking rates. While
Australia has significant taxes on tobacco, there are still substantial price
differentials between branded and generic cigarettes in Australia’s market. By
removing trade marks and all other brand imagery and information from the
packs, price competition is expected to intensify, which would likely increase
tobacco consumption, especially by youth.
In sum, Australia’s health justification for plain packaging
is not supported by actual evidence and seems more likely to cause an increase
in smoking rates, not a reduction.[30]
1.30
Mr Swanson, who had expressed the view that the evidence base was
sufficient to implement tobacco plain packaging legislation, noted the strong
resistance to the proposal was inconsistent with the position held by major
tobacco manufacturers that plain packaging would be an ineffective measure in
reducing the smoking rate.[31]
1.31
The Committee asked representatives from DoHA whether the department was
satisfied that sufficient evidence had been established to support tobacco
plain packaging and was informed:
We absolutely have sufficient public health evidence to go
forward with this legislation. This is as good a set of public health evidence
as you get for preventative health measures.[32]
Australia and tobacco control measures
1.32
Several witnesses and submitters advised the Committee that Australia was
considered one of the world leaders in tobacco control,[33]
and that Australia was amongst the first countries to implement innovations
such as graphic health warnings.[34]
1.33
The Australian National Preventive Health Agency reported to the Committee
that Australian tobacco control measures had been replicated overseas, and that
Australian made anti-smoking television commercials had been sold overseas.[35]
The Committee was also informed that the actual images used on graphic health
warnings on individual cigarette packages had also been used as tobacco control
measures by foreign governments.[36]
The role and impact of tobacco packaging
1.34
The Committee heard from witnesses and submitters that branded packs
detract from the graphic health warnings currently displayed on packaging.[37]
While the scientific basis behind this assertion was disputed by one submitter,[38]
The Australian National Preventive Health Agency noted that health warnings
were more salient on plain packaged cigarette packages.[39]
Professor Olver reported that some tobacco companies had even changed pack
colours to blunt the visual effect of graphical health warnings.[40]
1.35
The Australian National Preventive Health Agency noted that tobacco
control measures had been implemented steadily and progressively in Australia
over the years, and that the roll out of plain packaging was a natural
continuation of these measures.[41]
1.36
Several witnesses and submitters observed that branding and packaging on
cigarette packages was the last remaining marketing opportunity open to tobacco
companies,[42] and that after the
introduction of graphic health warnings on cigarette packs, that manufacturers
had become even more creative in using their packaging to make their product
more attractive to consumers.[43] It was also noted by the
Australian National Preventive Health Agency that these new packaging features
had been carefully planned and market tested.[44]
1.37
Ms Michelle Scollo of Quit Victoria reported that it was clear from the
changes in packaging that companies no longer just used packaging to allow for
distinction between brands, but to promote an image and lifestyle, and to
appeal to different sectors of the community,[45] a point supported by the
Australian Medical Association.[46] The Committee saw the
vast array of packaging currently used by tobacco manufacturers in Australia,
ranging from slimline, pastel coloured packs and cigarettes branded to appeal
to young women, to masculine cigarette tins aimed at young men.
Non-health issues
Retail concerns
1.38
Several submissions discussed the impact on tobacco plain packaging on
the tobacco industry, including cigarette manufacturers, importers of tobacco
products, and retailers that sell tobacco products. By far the largest number
of submissions received, were from small business people operating in the
retail sector[47] or bodies representing
these small businesses.[48] While many expressed
doubts about the effectiveness of plain packaging as a deterrent, without
exception small retailers considered that plain packaging would have negative
consequences for their businesses. This comment is typical of those received
from retailers:
There is absolutely no evidence that the proposed legislation
will reduce smoking. What the legislation will achieve however, is reduced
productivity and additional expense to small business, at a time when this
sector can least afford it.[49]
1.39
The main issues raised in submissions from this sector were summarised
in the form letter sent by over 400 retailers:
n impeding my ability
to serve my customers quickly, causing unnecessary confusion for my retail
staff ;
n causing delays in
service time and inconvenience for my customers;
n driving my customers
away to the large supermarket chains;
n making managing stock
more needlessly difficult and time consuming which is lost time I cannot
afford; and
n further increasing
the trade in illicit tobacco as plain packets will be easier to counterfeit,
increasing the risk of teenagers getting hold of cheap, illegal cigarettes.[50]
The illicit tobacco market
1.40
The Committee heard conflicting evidence over the percentage of illicit
tobacco consumed in Australia. British American Tobacco informed the Committee
that they had commissioned a report in conjunction with the other major tobacco
manufacturers from Deloitte Consulting that found that almost 16 per cent of
tobacco consumed in Australia was illicit, either as unbranded or counterfeit
cigarettes or loose leaf tobacco.[51]
1.41
This figure was disputed by both DoHA, and Quit Victoria. DoHA noted the
Australian Government’s own 2010 National Drug Strategy Household Survey found
the figure closer to 3 per cent of illicit tobacco consumption per annum, with
Quit Victoria suggesting the figure provided by British American Tobacco was ‘a
major overestimate’.[52] Ms Scollo reported the
survey’s finding that 20 per cent of smokers had tried illicit tobacco, and
that 80 per cent of those who had tried illicit tobacco had never used it
again.[53] Further, she reported
that the 3 per cent figure was consistent with previous findings, and that
there had been no significant increase in illicit tobacco consumption in recent
years.[54] Professor Olver agreed
that the 16 per cent figure was an overestimate, observing that for consumption
of illegal tobacco to be that high, Australia’s borders would have to be ‘incredibly
porous’, suggesting a level of corruption and ineptitude on the part of
agencies responsible for border protection and law enforcement that he
considered unlikely to be the case.[55]
Intellectual property and trade marks
1.42
The tobacco industry and several overseas-based organisations raised
intellectual property concerns, querying the legality of the legislation[56],
suggesting compensation would have to be provided to tobacco manufacturers who
were unable to use their trade marks on packaging.
1.43
The same witnesses suggested the bills were inconsistent with
Australia’s international obligations and were also contrary to Australia’s
domestic intellectual property policies. It was suggested that the proposed
legislation may be in breach of several international conventions[57]
and bilateral agreements to which Australia is a party, including:
n The World Trade
Organisation Agreement on Trade-Related Aspects of International Property
Rights (TRIPS);
n the Paris Convention
for the Protection of Industrial Property;[58]
n the Agreement on
Technical Barriers to Trade (TBT);[59]
n Free Trade Agreements
to which Australia is a party; and
n bilateral investment
treaties.[60]
1.44
These assertions were disputed by representatives of the University of
Melbourne, who argued that the legislation was consistent with Australian
obligations under the General Agreement on Tariffs and Trade, TRIPS, and the
TBT.[61]
1.45
Some submitters also argued that the bills were unconstitutional as they
were perceived to represent an unreasonable acquisition of property in
contravention of Section 51(xxxi) of The Constitution[62]
which reads:
51. The Parliament shall, subject to this Constitution have
power to make laws for the peace, order and good government of the Commonwealth
with respect to: -
(xxxi) The acquisition of property on just terms from any
State or person for any purpose in respect of which the Parliament has power to
make laws.[63]
1.46
Submitters suggested that were a court to find that the government had
acquired the trade marks of tobacco companies on terms that were not just, that
it would have to pay compensation to these companies to account for this
acquisition.[64]
The cigar industry
1.47
Several submitters involved in the importation and sales of hand rolled
cigars suggested that plain packaging would damage the industry far more than
it would impact on the cigarette industry, and that there were significant
differences between cigar and cigarette use.
1.48
The Scandinavian Tobacco Group Australia advised that all cigars sold in
Australia were imported, and equated to less than 0.3 per cent of annual
cigarette sales by volume.[65] The Group also noted the
differences between the average cigar and cigarette user, stating that the
average cigar user is a middle aged male in a higher socioeconomic bracket, who
occasionally smoked, rather than smoking regularly.[66]
This was also supported by the European Cigar Manufacturers Association.[67]
1.49
The Pacific Cigar Company noted that unlike cigarettes, cigars were
packed in many different ways after manufacture overseas, including in ceramic
and glass containers,[68] and this would make it
difficult to present products in plain packaging under the legislation.
1.50
It also noted the key differences between the purchase and consumption
of cigars and cigarettes:
It should also be noted that the majority of Cuban handmade
long filler cigars are sold individually and not per box. This is analogous to
a vintage wine buyer buying an exclusive wine to enjoy as an occasional treat
not as part of a staple diet.
This kind of buyer is making an informed decision on the
product they are consuming, rather than a cigarette smoker purchasing a product
as part of a sustained habit giving rise to the significant social and health
consequences the Commonwealth Government is aiming to curb.
Globally, a handmade long filler Cuban cigar buyer is an
educated sporadic buyer who is not engaged or captured by the marketing
involved in cigarette sales campaigns.[69]
1.51
The legislation would also require the removal of branding from
individual cigarettes and cigars, including the ring on a cigar that denotes
the brand and is also used to hold the product together. Mr Ray Battistella of
Cigarworld Australia agreed with other submitters that the majority of cigar
sales were of single cigars, and suggested that the bill would make it
impossible for consumers make an informed choice between single cigars if the
removal of the cigar ring was required under the legislation.[70]
Personal freedom
1.52
Some individuals also made submissions to the inquiry criticising what
they called a ‘nanny state’ approach to tobacco control – reducing the freedom
of choice, making people feel like criminals when engaging in a legitimate
activity[71] and as illustrated by
the following comment:
It is a gross invasion of peoples’ rights to be forced to
plain packaging. Users of the products are 18 or older therefore considered
adult, therefore they know the consequences of smoking to their health and
environment, why should they have their choices of using a totally legal
product seriously reduced.[72]
Committee comment on tobacco plain packaging legislation
1.53
Australia has shown itself to be a world leader in the field of tobacco
control through the progressive and methodical adoption of anti-smoking
measures and initiatives that have sought to ameliorate the harmful effects of
tobacco on health. The Committee notes a recent Organisation for Economic
Co-operation and Development (OECD) report which makes the following
observation:
The proportion of daily smokers among adults has shown a
marked decline over the past two decades in most OECD countries. Australia
provides an example of a country that has achieved remarkable progress in
reducing tobacco consumption, cutting by half the percentage of adults who
smoke daily (from 35.4% in 1983 to 16.6% in 2007). The smoking rate among
adults in Australia is now one of the lowest in OECD countries, behind a small
group of countries including Sweden, Iceland, the United States and Canada.
Much of this decline in Australia and in other countries can be attributed to
policies aimed at reducing tobacco consumption through public awareness
campaigns, advertising bans and increased taxation.[73]
1.54
It is of the utmost importance that Australia continues to innovate in
the field of tobacco control to further reduce its smoking rates in accordance
with agreed COAG targets.[74] The Committee notes that
tobacco plain packaging is one part of a suite of measures to reduce the
smoking rate, and that multiple witnesses and submitters stated that the most
effective anti-smoking initiatives were always multi-faceted.
1.55
The Committee is also aware that there is a history of multi-partisan
support for tobacco control measures in Australia, as articulated in the
submission from the Cancer Council and others:
This multi-partisan support [for plain packaging] is a
continuation of Australia‘s long and proud history of both Labor and Coalition
governments, with respective Opposition support, introducing public policies
that put community health before tobacco industry interests.[75]
1.56
In its deliberations, the Committee did not view plain packaging as an
isolated measure, instead viewing the initiative as part of a range of
interventions to reduce tobacco use and its harmful effects. Plain packaging of
tobacco products is not a ‘silver bullet’ to reduce the smoking rate. Rather
the Committee understands that it is a measure that will work in concert with
other measures, such as an increase in tobacco excise, broader indoor and
outdoor smoking bans, the availability of nicotine replacement therapies
through the Pharmaceutical Benefits Scheme and continued education about the
harmful effects of tobacco use.
1.57
The Committee believes the evidence base as outlined by witnesses and
submitters is sufficient for the initiative to proceed. The Committee considers
that criticisms of the evidence base in submissions and the Committee’s public
hearing were insubstantial and, on the whole, superficial. Notably, the fact
that plain packaging has not been introduced in other countries should not
function as a deterrent to passage of the legislation. Rather it demonstrates
Australia’s willingness to take the lead in tobacco control, a role that
Australia has taken in the past.
1.58
It is abundantly clear that packaging plays a significant role in the
marketing of tobacco products, and that different packages are designed to
appeal to different socioeconomic groups. The Public Health Association suggested
that tobacco packaging may function as a ‘mobile billboard for tobacco
products’.[76] It is also clear that
packaging has been used to detract from the impact of graphic health warnings,
and that plain packaging will increase the impact of these warnings. The
Committee notes that other tobacco control measures introduced by governments
from both sides of politics have been resisted by the tobacco industry,
employing the same arguments that are currently being employed to oppose the
introduction of plain packaging of tobacco products. Research has shown that
over time many of these tobacco control measures have been effective in
reducing the smoking rate, and there is no reason to believe that it will not
be the same in this case.
1.59
Some witnesses and submitters suggested that the adoption of plain
packaging would lead to an increase in the consumption of illicit tobacco,
which would be an unintended health consequence of the legislation. The
Committee notes the vast difference between the official government figures on
illicit tobacco consumption, and the commissioned research on behalf of the
tobacco industry, and considers the official figures to be more reliable due to
the rigour of the research undertaken. The Committee also notes the comment
made by Professor Olver that a higher figure would suggest poor quality border
protection and customs procedures, and notes that there is no evidence to
suggest that this is the case. The Committee notes that Australia has a strong
customs and quarantine regime, and that there are also a range of sophisticated
anti-counterfeiting measures which could be adopted[77]
to further reduce the risk of counterfeit tobacco products. Therefore, from a
health perspective, the Committee does not find the argument that the
legislation will lead to unintended negative health consequences to be
convincing.
1.60
Having considered the evidence placed before the Committee, and having
comprehensively examined the arguments made on matters relating to the health
implications of the proposed legislation, the Committee recommends that the
House of Representative pass the bills.
Recommendation 1 |
| 1.61 |
The Committee recommends that the House of Representatives
pass the Tobacco Plain Packaging Bill 2011 |
Recommendation 2 |
| 1.62 |
The Committee recommends that the House of Representatives
pass the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 |
1.63
While the Committee recognises that there are potential financial
implications of this legislation for the tobacco industry (manufacturers,
importers and retailers) and complex legal issues relating intellectual
property and trade marks, it considers these issues to be beyond the purview of
a Committee formed to consider matters directly related to health and/or
ageing. Therefore the Committee has decided to confine its comments to evidence
relating to health implications of the legislation. The Committee makes some
additional comments on the process of referral of the legislation by the
Selection Committee below.
Committee comment on the referral process
1.64
In the preceding comments the Committee has indicated that its
examination of tobacco plain packaging legislation is limited to issues
pertaining to directly to health. In confining its consideration to health
related issues however, the Committee is aware that the most contentious
aspects of the proposed legislation relate to the impact on the tobacco
industry, including the retail sector, and on legal issues relating to
intellectual property and trade marks. Not surprisingly therefore, a
significant volume of evidence to the inquiry addressed these two issues.
1.65
It is in this context that the Committee seeks to comment on the process
of referral of bills to committees by the House Selection Committee. In general
the Committee supports the increased opportunities in the 43rd
Parliament for House committees to contribute to review of legislation.
However, to be fully effective the Committee believes that due consideration
should be given to the reason(s) for referral of specific legislation to a
particular committee.
1.66
In this current inquiry, while it is clear that the underlying premise
of tobacco plain packaging legislation is to achieve improved health outcomes
by reducing tobacco use, the contentious issues extend beyond this scope. In
view of this, the Committee believes that examination of the financial and
legal aspects of the tobacco plain packaging legislation would have been more
appropriately referred to the House of Representatives Standing Committee on
Economics, or alternatively to a select committee specifically established to
review all aspects of the legislation.
1.67
Furthermore, with regard to the legality of the legislation as it
relates to intellectual property and trade marks, the Committee understands
that these issues are likely to be considered through the legal system and
subject to rulings of the courts. In these circumstances the Committee
considers that it would be inappropriate for it (or indeed any other
parliamentary committee) to comment further.
1.68
The Committee notes the Procedure Committee’s recent report on the
referral of bills to committees by the Selection Committee, and the report’s
recommendation that:
... standing order 222(a)(iii) be amended to remove the
provision that one member of the Selection Committee is sufficient to select a
bill for referral to a House or joint committee for advisory report—thereby
requiring a majority decision of the Committee—and to require that the
Committee provide reasons for the referral of bills to committees.[78]
1.69
The Committee endorses the Procedure Committee’s recommendation and
believes that if implemented it will enhance the referral process of bills to
House committees, and the utility and outcomes of these inquiries.
Steve Georganas
MP
Chair