Australia Teaches Us How To Package Cigarettes

The movement to put serious health warnings on cigarette packages appears to have been initiated in Canada in 2001. Many other countries have since followed suit with varying levels of graphic detail. Australia has just imposed the most severe packaging requirements of any country. Smoking opponents are hoping that the Australian law will set an example that other countries will follow. An article in Bloomberg Businessweek by David Fickling provides background.
"Tobacco products complying with the world’s first plain-packaging laws started arriving in Australia’s stores around Oct. 1, when the country’s A$10 billion ($10.37 billion) tobacco industry was hit with strict constraints on how it can package and sell cigarettes. Similar regulations, backed by the World Health Organization, are being weighed in the U.K., New Zealand, Turkey, and the EU. ‘With so many countries lined up to ride on Australia’s coattails, what we hope to see is a domino effect for the good of public health,’ Margaret Chan, the WHO’s director general, said in a statement."

Fickling provides this graphic to illustrate the extent to which the law controls how the product must be delivered.

"New government standards set out the images and health warnings that must cover 75 percent of the front of cigarette packs. Among them: a gangrenous foot, a tongue cancer, a toilet stained with bloody urine, and a skeletal man named Bryan who is dying of lung cancer. Further warnings must appear on the sides and cover 90 percent of the back."

By creating a stunning visual effect that cannot be ignored it is hoped that smokers can be convinced to stop, and young people convinced to not start. Australia seems to be giving that notion its best shot.

The cigarette companies battled the plan based on the claimed loss of intellectual property in the form of trademarks that they were prohibited from displaying. That morally weak thrust was dismissed by the High Court of Australia.

If Australia can take such actions, why can’t the United States? A CNN article by Bill Mears provides a status report.

Congress did pass a law in 2009 that was tame by Australian standards, but would have been an improvement over the current situation.

"The Family Smoking Prevention and Tobacco Control Act, passed in 2009, would have required nine written warnings such as "Cigarettes are addictive" and "Tobacco smoke causes harm to children." Also included would have been alternating images of a corpse and smoke-infected lungs."

"Other color images required under the agency rules would have been: a man smoking through a tracheotomy hole in his throat; smoke wafting from a child being kissed by her mother; and a diseased mouth, presumably from oral cancer linked to chewing."

The tobacco industry has thus far been successful in stopping implementation of the rules.

"A group of tobacco companies led by R.J. Reynolds and Lorillard had sued, saying the warnings would be cost-prohibitive and would dominate and damage the packaging and promotion of their brands. The legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the products."

Does that imply that the government has no right to encourage people to stop slowly killing themselves and becoming a burden on society in the process? Apparently that is what the District of Columbia Court of Appeals concluded in a 2-1 verdict.

These quotes are provided from the majority and dissenting opinions.

"Brown and Judge A. Raymond Randolph rejected the FDA's assertion that it had a governmental interest in ‘effectively communicating health information’ regarding the negative effects of cigarettes."

"’The government's attempt to reformulate its interest as purely informational is unconvincing, as an interest in "effective" communication is too vague to stand on its own,’ said Brown, named to the bench by President George W. Bush. ‘Indeed, the government's chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: "effectiv" in what sense’?"

"In dissent, Judge Judith Rogers said the rules do not violate commercial speech protections."

"’The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers,’ said Rogers, named to the bench by President Clinton. ‘The tobacco companies' decades of deception regarding these risks, especially the risk of addiction, buttress this interest’."

The emphasis in these quotes is mine. I am saddened by the notion that commercial interests take precedence over the health of our children. If the Constitution actually mandates that decision then we need a new constitution. I think, rather, that what we need are new judges.

Mears felt it was necessary in explaining the court’s decision to point out the political leanings of the judges, on the assumption that Democrats nominate Democratic judges and Republicans nominate Republican judges. This has become both common and necessary in media discussions of court actions. Sadly, many court decisions are only explicable in a political context.

We must remember that the duel to the death to control Congress that our political parties are engaged in is mirrored by a similar duel to the death to control our legal system. The same people who are throwing money around trying to buy the election of their disciples are throwing money around in an attempt to insure that our courts are packed with judges who agree with their philosophy.

We have already lost trust in the effectiveness of our Congress; and who knows where that will lead. What happens when we lose trust in our legal system? Where might that lead?