Advancing progressive health policy to reduce NCDs amidst international commercial opposition: Tobacco standardised packaging in Australia

Abstract

This study examines how health advocates and the Australian government responded to international commercial pressure during the implementation of tobacco standardised packaging (SP) as a measure to reduce non-communicable diseases (NCDs). Relevant government and NGO documents, and media items were reviewed. Policymakers and health advocates (n = 19) in Australia were interviewed. In 2009, Australia’s National Health Taskforce recommended SP, which the Australian government announced in April 2010. In response, tobacco companies threatened the government with litigation in both domestic and international courts, claiming that SP would violate their investment and intellectual property rights. However, these legal threats were unsuccessful in forcing the government to withdrawal the SP proposal. Tobacco companies legally challenged SP, but as of February 2018 failed with each legal challenge. The political success of enacting and implementing SP against international commercial pressure was supported by legal preparation and support, and a whole-of-government approach. The Australian SP case illustrates how, against international commercial opposition, governments can build and maintain political and official support to enact and implement progressive public health measures to reduce NCDs.

Containing diffusion: the tobacco industry’s multipronged trade strategy to block tobacco standardised packaging

“…Governments should be weary of accepting arguments that SP has significant international trade and investment implications— whether those arguments are delivered by the tobacco companies or third-party organisations. In Australia 20 and Ireland, 130 key government officials consistently framed SP as a public health and protection of children issue to address the ‘unique problem of tobacco’, and were undeterred by the industry’s threats of trade and investment lawsuits. This contributed to relatively swift passage of SP laws in these countries.…”

“…This contributed to relatively swift passage of SP laws in these countries. With positive rulings in the Australian and Uruguay investment arbitrations, 20131 and the WTO ruling expected in 2017, governments can have confidence to publicly and internally resist the industry’s attempts to frame SP as a trade and investment issue.…”

“…The fourth argument incorporates various international elements as tobacco companies have aggressively threatened governments with lawsuits claiming that SP would violate various trade and investment agreements. 18–20 For decades, these legal threats appeared to have created a chilling effect 21 as governments either withdrew, weakened or delayed implementation of SP due in part to fears over potential costly legal battles with the industry. 17 Despite several legal opinions, 2223 court rulings 2425 and the tobacco industry’s own internal legal advice 1726 that pictorial HWLs and SP do not violate these agreements, tobacco companies continue to publicly threaten governments with domestic and international lawsuits.…”

Normalizing Tobacco? The Politics of Trade, Investment, and Tobacco Control

“…Policymakers adopting tobacco control policies need to be fully aware of the industry's likely tactics and arguments, strongly committed to countering them, and fully prepared for long, contentious, and expensive legal battles. Even governments with the best resources require extensive legal and technical assistance from international experts to defend against such challenges . In low‐ and middle‐income countries, these needs can be more extensive.…”

Hollow Threats: Transnational Food and Beverage Companies’ Use of International Agreements to Fight Front-of-Pack Nutrition Labeling in Mexico and Beyond

“…10 Philip Morris Asia similarly sued Australia over tobacco packaging under a bilateral investment treaty and also lost, paying millions in costs. 11 In November 2018, the three NAFTA parties renegotiated the treaty, creating the United States-Mexico-Canada Agreement (USMCA) which came into force on July 1, 2020, replacing NAFTA. In 2018, leaked drafts of a proposed annex to the USMCA revealed an American-introduced provision that would have prevented any warning symbol, shape or color that 'inappropriately denotes that a hazard exists from consumption of the food or nonalcoholic beverages. '…”