In the past, the tobacco industry has largely acquiesced whenever regulation has been imposed on it—and whether it be forcing manufacturers to put health warnings or graphic images on packs, smoking bans, retail restrictions like those implemented recently or seemingly imminent tax hikes, there's been plenty. But the threat of plain packaging, which has recently been given the go-ahead in Australia, has been something of a tipping point for the industry and, in an effort to convince Kiwis that doing the same thing here is tantamount to theft, British American Tobacco has taken the unusual step of launching an above-the-line campaign.
Tobacco advertising is illegal in New Zealand, but the Agree Disagree campaign, which consists of TV, radio and print ads, along with a website putting forth its argument, isn't spruiking ciggies as much as it's mounting a challenge over the legality of the proposed regulation. It follows hot on the heels of the Australian government's decision to introduce plain packaging and the recent high court decision that said forcing companies to house their harmful wares in generic green cartons was legal (the court has withheld the reasons for the decision, partially to get the ruling out there quickly enough so companies could prepare for the change).
It's not all over yet, however. Tobacco producing and manufacturing countries are currently taking Australia to court for contravening World Trade Organisation obligations, with Philip Morris taking a separate action against Australia for breaking the rules of its trade deal with Hong Kong.
Philip Morris is also canvassing views in New Zealand with its myopinioncounts.co.nz website, which Philip Morris spokesman Chris Bishop told the Herald was "a place where adult smokers could voice their opinions about regulatory issues".
British American Tobacco didn't want to comment for this story, and didn't get back to us about who was behind the campaign, which NZ chief Steve Rush said was costing them hundreds of thousands of dollars, but its argument is there for all to see on the website.
- There’s no proof that plain packaging would reduce smoking rates in New Zealand.
- Intellectual property is one of the most valuable assets of any business. Our brands are our intellectual property, which we have created and in which we have invested. Plain packaging would deprive us of the right to use our brands.
- Plain packaging would infringe New Zealand’s international obligations, damage its strong trading reputation and expose the country to legal challenges.
- Plain packaging would make packs easier to counterfeit. A growth in the illegal market would reduce the Government’s excise revenue, expose New Zealand consumers to cheap, low quality, unregulated tobacco products, and fuel a rise in criminal activity.
- If plain packaging is implemented, adult consumers would no longer have the freedom to choose based on branding. This could force the industry to compete on price, making cigarettes more affordable and frustrating the stated aim of plain packaging.
- Australia is the only country to have passed plain packaging legislation. Other countries, such as Canada, have looked at plain packaging and decided not to introduce the measure.
- We have invested in our brands over many years and have a responsibility to our shareholders to do everything we can to defend our right to use them.
- Plain packaging, once introduced, is unlikely to be limited to tobacco products. Which products will be next?
Some tobacco companies in Australia initially joined forces with a retailers group that was against the plain packaging move, but they were criticised for hiding behind them. So BAT Australia launched an information-heavy print media campaign and Imperial Tobacco launched a TV offensive laying in to the nanny state.
So far New Zealand has kept a watching brief on the issue in Australia, fearful of a massive legal fight should it not have good grounds to impose plain packaging here, but the government has intimated it's keen and health minister Tony Ryall said BAT was wasting its money on this campaign. But as one source from inside the tobacco industry we spoke with who didn't want to be named said: "It will be an entirely different ballgame in New Zealand."
So is it a case of if it's anti-tobacco it's okay? Or is this a bridge too far?
Britain, Norway, Canada and India are also looking at similar measures. But many EU countries have looked at the issue of tobacco control and decided there's not enough evidence that plain packaging would limit smoking so have decided not to implement it. And given our source says there's 97 percent awareness of the health risks of smoking, the feeling within the tobacco industry is it's regulation for the sake of regulation. On the face of it, one could argue that tobacco gets a rougher ride in comparison to our old mate alcohol, which, as the 'Making a Hash of it' study in the UK shows, would be the fifth most harmful drug if the ABC classification system wasn't so "arbitrary and unscientific" (tobacco makes it into ninth spot).
As you'd expect, the anti-smoking brigade hasn't taken too kindly to BAT's campaign and The Herald's business editor Liam Dann wrote a column on the issue saying protecting our kids trumps tobacco's IP rights.
For capitalism to work properly the companies that bring us wonderful shiny things such as smartphones, or services like insurance and banking, need to have security about the rules for doing business. Property rights and the security of intellectual property are crucial to provide a platform for a healthy, thriving economy. But British American Tobacco seems to be under the misapprehension that it can sell a poisonous, addictive drug and still demand the same rights as any other corporate entity.
But Herald columnist John Roughan took an opposing view, saying plain packaging was a vendetta against tobacco rather than a move to improve the nation's health (guess which column is alluded to on BAT's website?) and adding that the power of brands means marketers will find a way to get their product in front of consumers.
The smokefree campaign may find that suppressing a brand is harder than it imagines. A business lives on its brand, invests everything in it. If tobacco companies cannot put their trade mark prominently on their product they will find a way to put it somewhere. They might, for example, produce stylish durable containers to be available with plain packs, maybe a neat leather holder smokers can keep. This week's website will not be the end of their ideas. Each time they find a new mode of brand expression, another law will be needed to suppress it. That is the slippery slope ahead unless we decide there is more to life than health. There is liberty too.