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Submission on the Consultation Document: Review of the Smoke-free Environments Regulations 1999

From members of the staff of the Wellington School of Medicine and Health Sciences:

Dr George Thomson, Dr Nick Wilson, Professor Julian Crane, Dr Tony Blakely, Dr Peter Crampton

September 6, 2004

Abstract

This submission from various staff of the Wellington School of Medicine was made in response to a Ministry of Health consultation document that reviews the Smokefree Environment Regulations 1999. The submission argues for a new policy framework in which a “Tobacco Authority” would purchase tobacco or alternative nicotine-containing products from tobacco companies, according to specific requirements aimed at harm minimalisation. Also detailed are ideas around possible pictorial and text warning labels on tobacco products to enhance consumer protection, to provide quitting information and to minimise the marketing role of current pack imagery and brand names. Ideas on the appropriate regulation of tobacco product constituents and on alternative tobacco/nicotine products are also detailed. A key theme is the need for extremely rigorous regulation of tobacco products by the New Zealand Government. This is justified by the extremely addictive nature of tobacco products, the massive long-term impact on the health of New Zealanders, and the contribution of smoking to health inequalities.

Submission to the Ministry of Health

The Ministry is to be congratulated on developing the important area of tobacco product regulation – given that reducing tobacco-related harm is one of the most important means of improving health status and reducing health inequalities in New Zealand. Substantial improvements in the effectiveness of tobacco control regulations have the potential to prevent thousands of cases of unnecessary premature deaths and disability amongst New Zealanders. A disproportionate number of these cases will be amongst Maori and low-income New Zealanders.

We would like to emphasise that any costs that tobacco companies and retailers may incur in meeting new regulations are proportionate to the need to deal with the unique risk from an extremely hazardous consumer product. We suggest that tobacco industry statements about costs and implementation times should be treated with extreme scepticism. This is because of the long history of the industry in providing misleading information – both in the New Zealand setting[1] and internationally.

The Review’s objective of ensuring that New Zealand complies with Article 11 of the FCTC may best be met by a new policy framework for tobacco control. This is discussed in Section B below.

AGeneral comments - labelling and brand names

We would like to emphasise the need for change in two particular areas not detailed in the consultation document - the labelling of tobacco exports, and misleading brand names (as opposed to descriptors).

We strongly recommend that all the requirements that are put into New Zealand regulations also apply to tobacco exports (where these exports are in packaged form). Given the ethical dimensions of exporting a highly hazardous product (often to poor developing countries with weak tobacco control programmes and which are recipients of New Zealand development assistance) there appears to be an urgent need to ensure at least New Zealand standards of labelling for any exports.

Brand names used by tobacco companies such as “Freedom” are completely misleading when used for a highly addictive substance that substantially erodes the long-term autonomy of smokers (and their families). We suggest that the regulations allow action to prevent such names.

The consultation document has made use of some Canadian research. The Ministry should also consider the recently released Canadian Government consultation paper.[2] This document presents an overview of tobacco product labelling in Canada and other countries, a summary of Health Canada’s research on the current messages and a set of proposed changes to tobacco product labelling.

BGeneral comments - Disclosure and constituents

Government may require a new policy framework to deal with tobacco company strategies to prevent disclosure of brand ingredients. Companies may threaten to use international legal frameworks to prevent such disclosure, and/or they may threaten to withdraw from New Zealand. The later may involve the removal of any accountability for those companies through New Zealand courts.

To anticipate such moves, we suggest that the regulatory frameworks suggested by Borland[3] and Liberman[4] are required. These would give government the ability to make tobacco companies only sell products in New Zealand to a Tobacco Authority, would give government the ability to specify the constituents in the products, and would remove the ability of companies to sell branded products to retailers. The legislation setting up the Authority would need to require the establishment of bonds by the existing tobacco companies operating in New Zealand, to prevent them from nullifying their accountability. This would be similar to the existing policy for mining companies.

We suggest that, to cover any costs to government, the costs of such an Authority be fully recovered by a levy on the suppliers of tobacco to the Authority.

CNovel and alternative tobacco products

In our view there is an urgent need to consider, develop and most importantly provide local research based evidence, for sensible and appropriate harm reduction strategies to complement the tobacco control legislation of the past 20 years.

The rationale for considering such harm reduction strategies is twofold. Firstly, while tobacco control strategies have reduced smoking prevalence, the reduction in smoking has largely stalled since 1991. Secondly, it is clear that the effects of tobacco control have differentially affected New Zealand society. Thus, amongst Maori and Pacific Island communities there has been much less reduction (and in some areas for example, younger female Maori, increases) in smoking prevalence. Furthermore, when the population is divided by socio-economic factors it is clear that those in the lower socio-economic groups have benefited relatively little from tobacco control legislation in terms of reductions in smoking prevalence. We consider that it is therefore vital to develop appropriate evidence-based harm reduction strategies to further reduce smoking prevalence and reduce the differential prevalence in society.

DFeedback on specific questions

Section 1: Introduction

From Section 1.5.5

1. Are there other considerations that should be applied when assessing policy options for adoption (further to those set out in Section 1.5.5 above)?

Response: The most important consideration regarding labelling issues is the extent to which an option will accurately and appropriately inform consumers of the risks associated with the product and hence potentially protect public health. Given the extreme hazard posed by tobacco products the other issues listed (such as in respect to trade marks) are of relatively trivial importance.

We suggest that the unique risk from a consumer product requires a degree of labelling regulation beyond that for prescription medicines or products retailed as poisons.

Section 2: Health warnings and other information on tobacco packaging

From Section 2.5.2.2

2. Do you support Option 2 (inserts in tobacco packs) as a means of achieving the

Government’s stated objectives of complying with Article 11 of the FCTC, and ensuring that optimal warnings, messages and other information are required to be placed on all tobacco products?

Response: There appears no research evidence that indicates that this is an effective means of communicating to those most needing the warnings and health messages. We suggest that regulatory effort is better put in increasing the size and effect of external package warnings, and for in increasing the size and effect of warning messages in retail settings.

From Section 2.5.2.3

4. Do you support Option 3 (textual warnings) as a means of achieving the Government’s stated objectives of complying with Article 11 of the FCTC, and ensuring that optimal warnings, messages and other information are required to be placed on all tobacco products?

Response: Yes, but only alongside pictorial warnings, and they should not reduce the effectiveness and size of the pictures. We support the addition of warnings about blindness and strokes. Where there is evidence to show that warnings about other issues such as impotence and mouth diseases are effective, we support such additions. Generally, the information should be as simple as possible, and should convey the social, family and financial consequences of the illnesses.

Complex technical and unfamiliar words such as “emphysema” and “peripheral vascular disease” should be avoided. Also it is best to avoid vague terms like “hurts babies” – the type of harm should be far more specific. There are many messages that could be used and the Ministry should invest in exploring these further (eg, consider the list below in 5.1).

5. If textual and style changes were the chosen option for regulatory changes to give effect to the Government’s stated objectives, what specific changes would you like to see, including in respect of:

5.1Specific messages to be retained on tobacco packages

Response: Until research indicates the relative effectiveness of messages, it will be necessary to retain the ability to rotate current as well as new messages.

5.2 Specific messages to be added to tobacco packages:

Response: Possible messages that could be tested further in the New Zealand setting, including testing with priority population groups for tobacco control:

Quitting theme:

  • “Call the Quitline now (0800 778778) for support with quitting smoking”.
  • “Call the Quitline now (0800 778778) to get nicotine patches or gum for quitting”.
  • “Give yourself a gift – call the Quitline now (0800 778778)”
  • Call Quitline now (0800 778 778) or visit
  • For support in setting a quit date - call Quitline now (0800 778 778). (Note – Canada is proposing “quitting schedule” information on packs[5]).
  • “Save over $3200* a year – call the Quitline now (0800 778778) [*for a pack-a-day smoker]”

Cost theme:

  • “Smoking a pack a day costs you over $3200 a year”. (The precise figure to be used would be based on the cheapest pack on the market). There is substantial evidence that affordability influences decisions around smoking adoption and quitting.

Adverse health effects theme:

  • “Smoking causes blindness”. There is some evidence that blindness is the most feared health condition after cancer[6] – therefore this is a particularly important message. There are New Zealand data on this issue[7] and on the effectiveness of smoking and blindness publicity in stimulating calls to the Quitline.[8] Also the Quit Group have data on the effectiveness of smoking and blindness television commercials in stimulating Quitline calls within one hour of the commercial being aired.
  • “Smoking causes cataracts (a type of blindness)”. (See the latest Surgeon General’s report[9]).
  • “Smoking causes hip fractures (by weakening bones)”. (See the latest Surgeon General’s report[10]).
  • “Heart attacks can strike smokers in their 30s! – Quit now”. (For the reference see Tobacco Control upcoming – ie, August/September 2004).
  • “Smoking makes flu worse – so quit now”. (Supporting references available on request).
  • “Coughing blood may mean lung cancer – see a doctor now”.
  • “Smoking causes infertility” (for these[11][12])
  • “Smoking causes cervical cancer’
  • “Smoking can lower your sperm density”
  • “Smoking can damage your sperm”

Second-hand smoke theme:

  • “Take the smoke outside – protect children”.
  • “Non-smokers have a right to clean air – ALWAYS take the smoke outside”.
  • “Warning - lungs developing - NEVER smoke in a house with a pregnant woman”.

5.3 Number of messages to be rotated at any one time:

Response: We suggest following the pattern used by the country that has researched this issue the most and produced the best evidence around maximal impact (eg, perhaps Australia or Canada). Generally, we suggest a continual addition of new information (eg, at least five new messages per year).

5.4 Colours of messages and their respective backgrounds

Response: Focus group testing should be used to determine what design stands out the most clearly – or else use the evaluation data from other countries (eg, Australia or Canada if available).

5.5 Style of borders around health warnings?

Response: Focus group testing should be used to determine what design stands out the most clearly – or else use the evaluation data from other countries (eg, Australia or Canada if available).

6. Are there any other packaging and labelling changes under Option 3 that you think would be worthy of consideration?

Response:

1) The warning labels have two functions: (i) to provide information to consumers to minimise harm to themselves and others; and (ii) to displace space available for product marketing (given the evidence from a Cochrane systematic review which shows that tobacco promotion increases the chances of youth beginning to smoke[13]). Therefore it is desirable that the warnings take up at least 90% of the surface area of the front of a pack (just leaving enough room for a reduced size version of the brand name) and 100% of other pack surfaces.

2) Tobacco companies should be required to disclose to the Ministry of Health all of the research and planning that they, their parent and associated companies have done that sheds light on packaging, warning labels and branding. All such information should be made accessible to the public by being placed on the Ministry of Health website.

8. What macro policy considerations (if any) from Section 1.5 of this document do you think would support or inhibit adoption of Option 3? How would they have this effect?

Response: Tobacco is a very special product given its highly hazardous and addictive nature. Therefore protecting public health should dominate all other considerations – by a very large margin. The Ministry should treat tobacco as a poisonous substance that needs extremely high levels of regulation. It shares characteristics with various poisons like asbestos, leaded petrol and prescription medicines and needs similarly high or higher levels of regulation.

From Section 2.5.2.4

9. Do you support Option 4 (pictorial warnings) as a means of achieving the Government’s stated objectives of complying with Article 11 of the FCTC, and ensuring that optimal warnings, messages and other information are required to be placed on all tobacco products?

Response: Yes pictorial warnings should be required – given the available evidence from countries such as Canada. The Canadian experience is that graphic health warnings “serve as a major (in some cases, the major) source of information on the health effects of tobacco use, and are seen as both credible and informative”.[14] Pictorial messages are likely to be particularly valuable in reaching New Zealanders with lower levels of education, poor literacy or who do not have English as a first language. (See for example the Canadian concerns regarding warnings and low literacy smokers[15]).

Pictorial warnings may also benefit the unfortunate recipients of New Zealand tobacco exports[16] (eg, Pacific peoples) – if all such warnings are required on exports (as they most definitely should be).

10. If pictorial warnings were the chosen option for regulatory changes to give effect to the Government’s stated objectives, what specific changes would you like to see, including in respect of:

10.1 Specific messages and supporting information to be included on tobacco packages

Response: The approach should be based on the research findings from New Zealand and/or from other developed countries such as Australia and Canada.

10.2 Number of messages to be rotated at any one time?

Response: This should be based on the best available evidence from research done in New Zealand or elsewhere.

11. What macro policy considerations from Section 1.5 of this document do you think would support or inhibit adoption of Option 4? How would they have this effect?

Response: As detailed above, tobacco is a very special product given its highly hazardous and addictive nature. Therefore protecting public health should dominate all other considerations – by a very large margin. The Ministry should treat tobacco as a substance that needs extremely high levels of regulation.

13. Are there any other suggestions in relation to the adoption of Option 4 that you think would be worthy of consideration?

Response: There is a need for:

1) The images on the front of the pack to be as large as possible, given the importance of the front of the pack. We suggest that at least 90% of the pack front should be a warning image (including text where appropriate).

2) Graphic and horrifying images – given the evidence of how graphic road safety advertisements appear to be successful and the evidence around the success of the “Every cigarette is doing you damage” television advertisements. (Supportive references are available from LTSA researchers and in the scientific literature). Regulations should also pave the way for the Ministry to require electronic voice messages that are triggered when the packet is opened (just like with some greetings cards available commercially). These could repeat some of the messages suggested above (section 5.1).

From Section 2.5.3.1

14. Which option (if any) for the area of the tobacco pack to be taken up with health

information do you support? Why?

Response: The best approach from a public health perspective would be to aim for 90% of the front of the pack and 100% of all other surfaces. The next best option is “option 4”. However, if this option was taken, we suggest that the 60% of the display area with warnings should be as much as possible located on the most effective side, the front. We suggest 90% of the front and 30% of the back.

As detailed above, an important function of health information on packets of tobacco is to displace the marketing details. Any form of tobacco industry marketing (including branding) is a serious public health problem (given the evidence from a Cochrane systematic review which shows that tobacco promotion increases the chances of youth beginning to smoke[17]). New Zealand Governments have already acknowledged the threat posed by tobacco industry marketing – by a near-comprehensive ban on advertising and sponsorship. Therefore such restrictions on pack-based marketing are entirely consistent with the intent of the Smokefree Environments Act 1990.