Standardised tobacco packaging was kicked into the long grass a little more than a year ago. Yet, through some quick thinking and political know-how, leading campaigners have resurrected the policy. Neil Hallows reports on its rebirth and journey towards enshrinement in UK law
It’s a policy of which Lazarus would have been proud. Prime minister David Cameron said his Government had decided not to go ahead with standardised tobacco packaging ‘for the time being’.
In July 2013 he said: ‘[It’s] a decision taken by me with the health secretary for the very simple reason that there isn’t yet sufficient evidence for it, and there’s considerable legal uncertainty about it. If we get more evidence and if we can reduce the legal uncertainty then it may well be a good idea, and I’ll very happily look at it again.’
To most commentators, the policy was dead, and their focus was on who or what had killed it. Was it owing to the influence of powerful lobbyists, or simply a lack of stomach to tackle public health issues?
The Conservative MP and GP Sarah Wollaston, also referencing a decision to stall (or ditch) minimum alcohol pricing, tweeted: ‘RIP public health. A day of shame for this Government; the only winners big tobacco, big alcohol and big undertakers.’
Tenacity revived policy
But a small number of campaigners decided that, instead of holding a post-mortem, they would take the prime minister at his word. If the Government needed more evidence, it would have it. It was their tenacity that brought a ‘dead’ policy back to life and into law. Following an overwhelming Commons vote last month, standardised packaging will begin next year.
Going back to July 2013, Baroness Finlay, a consultant in palliative care and this year’s BMA president, worked closely with colleagues Lord Faulkner, Baroness Tyler and the surgeons Lord McColl and Lord Ribeiro.
She says: ‘We worked together gathering evidence and providing it to ministers. It was the provision of that evidence to the Department of Health that was the turning point, with support from the chief medical officer.’
A great deal of that evidence came from Australia. Standardised packaging began there in December 2012.
The Australian evidence is useful, not only for the impact on smoking, but in comparing what the tobacco industry said would happen, and what actually did.
The industry said the more generic nature of packaging would make smuggling easier, yet the Australian data shows the total weight of illicit tobacco seized has remained roughly the same since 2007/08.
The proportion of cigarettes among the seizures started to increase in 2009/10, well before the introduction of the new law. It was also claimed by the industry that sales would not be affected. Cigarette sales fell 3.6 per cent between 2012 and 2013. Most importantly, the smoking rate has fallen to its lowest ever — 12.8 per cent according to the 2013 Australian National Drugs Strategy Household Survey.
Obviously, standardised packaging is not the only part of that country’s energetic tobacco control strategy. But it has clearly had an impact. The smokers themselves have said so — part of the research has involved interviewing smokers and it has found the packaging change has been a factor in them wanting to give up.
Just four months after what seemed like an indefinite pause, the issue was back in play. The eminent paediatrician Professor Sir Cyril Chantler was asked to carry out a review of the likely impact, and provision was made in the Children and Families Bill then going through Parliament in case the Government wanted to proceed Baroness Finlay says the review was ‘independent, it was very measured, and it drew on the evidence’.
It was published in April 2014 and says: ‘The aim of standardised packaging is to reduce the tobacco package’s visual identity and appeal as an advertisement for the product. There is very strong evidence that exposure to tobacco advertising and promotion increases the likelihood of children taking up smoking.
‘Industry documents show that tobacco packaging has for decades been designed, in the light of market research, with regard to what appeals to target groups. Branded cigarettes are “badge” products, frequently on display, which therefore act as a “silent salesman”.’
Short time frame
After the review was published, health minister Jane Ellison told the Commons there would be a ‘final, short’ consultation before a decision was made, but the Government was ‘minded’ towards introducing standardised tobacco packaging.
So, job done? Far from it, because there was less than a year of Parliamentary time remaining and legislation, even when there is strong support, can be easily lost.
‘We were up against the clock,’ says Baroness Finlay. ‘In fact, we were up against two clocks. One was the need to put the regulations before the EC (European Commission) and the other was the need to put them through our Parliament.’
When EU member states want to make regulations of this kind, the EC needs to be notified and there is a ‘standstill’ period to allow the issue to be considered by the commission and member states.
Pressure in 'standstill' period
Baroness Finlay was among those who made the commonsense proposal that, rather than wait for the end of the consultation, the Government could initiate the UK consultation and send the draft regulations to the EC at the same time. Both duly took place in August. It was a wise move, as the commission required more than six months to consider the proposal. Until 2 March, no vote could take place. It was getting perilously close to Parliament being dissolved on 30 March.
While in the ‘standstill’ period, Baroness Finlay kept up the pressure to have the regulations passed. In January, she told the Lords: ‘A vote on the necessary regulations has to happen before the general election. If the Government table them immediately this can happen.I am concerned that we have been told that we cannot have them laid before the end of the period of notification to Europe on March 2 this year. That is, in fact, a red herring. I do not understand why they cannot be laid now, so that as soon as 2 March is past a vote can be held.’
Tribute to peers
Health minister Earl Howe responded: ‘We have received detailed opinions from 11 member states, which extends the “standstill” period to six months. This will expire on 2 March 2015 and until then we are unable to make regulations, although I hear what the noble Baroness, Lady Finlay, says about laying regulations.’
Just days after the European deadline had passed, MPs voted overwhelmingly — by 367 to 113 — to approve standardised packaging. In the Lords, it was not put to division (where votes are counted) because it was clear that it had overwhelming support.
Earl Howe paid tribute to the four peers who had worked so hard to see the regulations into law.
So, three years passed between the Government’s first consultation and a vote being taken, with another year before standardised packaging becomes law. Was this frustrating, given the urgent need to tackle the causes of tobacco-related harm?
Baroness Finlay says it’s important to be realistic.
‘This is the process you have to go through to make sure you have something that will happen, and won’t be challenged in court or subject to judicial review.
‘It’s about due process.You can’t rapidly make laws and regulations on the hoof, and, indeed, when that has happened, there have been unintended consequences and gaps in the legislation that can be exploited.’
Tobacco industry backlash
The importance of this issue is underlined by the lengths to which the tobacco industry will go in order to turn its packets into a marketing tool.
A cigarette packet recently included a slide-drawer with a quote by writer GK Chesterton: ‘I owe my success to having listened respectfully to the very best advice and then going away and doing the exact opposite.’
The words, customised to include the manufacturer’s logo, summed up the long-standing attempts by tobacco manufacturers to portray smoking as something cool and transgressive.
Baroness Finlay says: ‘We know that the tobacco industry is desperate for new recruits among the young and the slick marketing of cigarette packs was their last advertising stand.’
It’s the same manufacturers that spent decades denying the harmful impact of tobacco and have opposed every single measure that has improved public health since.
It was a different context, but GK Chesterton’s words again come to mind: ‘It isn’t that they can’t see the solution. It is that they can’t see the problem.’