Home > Intellectual 'property', Science > Big tobacco loses again

Big tobacco loses again

August 15th, 2012

Until relatively recently, Big Tobacco appeared invincible. Despite the fact that tobacco smoke was full of known carcinogens that would have had a factory shut down if they came out of the smokestack, and ample evidence that exposure to tobacco smoke caused cancer, not to mention the violation of liberty associated with blowing smoke in public places, Big Tobacco effectively resisted even the mildest restrictions on its activities. It was aided by a team of scientists and other “experts” willing to claim that the hazards of smoking were non-existent or overstated (notable names here include Enstrom & Kabat, Gio Batta Gori, Richard Lindzen, Steve Milloy, Fred Seitz and Fred Singer – Google has details).

Virtually all the main rightwing thinktanks in the US and Australia went along with this fraud (AEI, Cato, Centre for Independent Studies, CEI, Heartland and IPA among many others). While they might legitimately have argued part of their case on strict libertarian grounds, that would not have been sufficient to resist restrictions on passive smoking. So, they published attacks on science which any reasonable assessment would have shown to be false. In doing so, of course, they encouraged people to take risks with their own lives and those of others, while happily accepting money from the merchants of death. Whether they were knowingly lying, or merely recklessly indifferent to the truth, this episode should have discredited them forever (it certainly has with me).

But the tide has turned. US litigation in the 1990s exposed a treasure trove of internal documents which eventually led to racketeering convictions for the main tobacco companies. And now the High Court has rejected Big Tobacco’s (legally preposterous) challenge to plain packaging legislation in Australia, made on the supposed basis that it represented a taking of intellectual ‘property’. Not satisfied with one preposterous claim, the tobacco companies are planning another, having bribed the government of Ukraine to make a WTO accusation of trade restraint. Actually, this is a good thing. This case is such an obvious abuse of process, and the litigants so clearly evil, that the WTO will surely not be crazy enough to support their case. In rejecting it, they will probably be forced to set precedents that make future interference with domestic health policy more difficult.

Coming to the policy merits, the current legal status of tobacco is, in my view, a pretty good model for drugs in general – legally available, but with all kinds of promotion prohibited and with an active public health campaign to give accurate information on the associated risks.

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  1. Freelander
    August 16th, 2012 at 23:06 | #1

    None too clever comment ad my attack the demand side solution would eliminate sales.

  2. Patrickb
    August 16th, 2012 at 23:39 | #2

    Agree that the restriction around tobacco are probably the best model for legalising other drugs. Zealots who want to ban tobacco altogether must be smoking something pretty wild as it would be a policing nightmare. We’d be an island of prohibition in a worldwide sea of legal supply. On the upside, I foresee a reemergence of the cigarette case as a designer accessory. The neo-liberal economists should be lining up for grants to test their theories of the market and innovation.

  3. Freelander
    August 17th, 2012 at 00:38 | #3

    No problem banning tobacco. Probably could do it without even breaking out the electronic bracelets.

  4. John Mashey
    August 17th, 2012 at 01:07 | #4

    Good on you, Australia!

    Cigarettes and alcohol are a bad comparison.
    See reviews of Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition or pp.37-47 of PDF @ Fake science.

    1) Most adults smokers would quit if they could.

    2) In US, 30 years ago, typical starting age was 15-16, by now it’s down to 13-14. Addiction only really sets if done while brains are developing quickly. Very few adult smokers started after 18 and tobacco companies certainly knew this 30 years ago, as in The Importance of Younger Adults, which led to “Joe Camel.” Of course, tobacco freebasing helps.

    3) Cigarette company business model is simple and clever, they have the “best” marketeers in the world, dedicated lawyers and lots of money:

    a) Get children addicted by 18, but preferably much earlier, as people often stick with the first brand, so get there first. 11-12 is best.

    b) Kill them as slowly as possible.

    They know perfectly well that addicted adults will still buy no matter what, but higher costs and likely plain wrappers reduce the12-18 smoking rate, a direct threat to future profits. They’re on track for a billion cigarette-related deaths this century.

  5. Hal9000
    August 17th, 2012 at 08:43 | #5

    It seems to me that moral authoritarianism lies at the base of all the proposals to prohibit private behaviours, from gay s*x to pr0n to drugs. The main argument is along the lines ‘I am a superior moral being, able to resist temptation or to avoid addiction, but I’m concerned about all those lesser beings out there who are unable to resist. Those folks need to be protected by deploying all the force of the criminal law, and if force fails, apply more force.’

    As Jack’s rants show, the malign effects of prohibition and criminalisation are easily confused with the pharmacology of the substance in question. Prohibition of alcohol has similar effects – for example during WW2 the US Navy (unlike the permanently semi-sozzled Royal Navy) banned alcohol consumption by sailors, who duly found dangerous illicit sources such as the pure alcohol used to fuel torpedoes. Many died and many others were permanently incapacitated by this – high doses of industrial alcohol are extremely poisonous, especially when rapidly consumed. Similarly, the necessarily secretive and squalid circumstances of consumption and (by definition) uncontrolled purity of illicit drugs are the main causal factors in overdose deaths, not the magical qualities of the drugs themselves.

    Conversely, the cumulative effect of the measures adopted in relation to tobacco is, first, to remove tobacco as a third party hazard by restricting smokers’ freedom to practise their habit in public or confined spaces occupied by non-smokers; second, to limit the industry’s ability to propagandise and recruit new addicts, particularly the young; and, third, to use marketing techniques in the cause of public health by reinforcing accurate messages about the health dangers of tobacco smoking. No-one goes to prison, taxpayer resources are directed to more useful purposes, and yet we see a continuing decline in the numbers of smokers. This is what public policy success looks like – by contrast the ‘war on drugs’ is an unbroken record of public policy failure with vast resources deployed in order to deliver a rising problem as more users resort to ever more concentrated substances whose pharmacology is unknown, and law enforcement personnel are corrupted by the vast sums of black money in circulation.

  6. August 17th, 2012 at 09:07 | #6

    With regards to the Hal9000 unit: My God, it’s full of sense!

  7. Troy Prideaux
    August 17th, 2012 at 09:27 | #7

    @Hal9000
    “for example during WW2 the US Navy (unlike the permanently semi-sozzled Royal Navy) banned alcohol consumption by sailors, who duly found dangerous illicit sources such as the pure alcohol used to fuel torpedoes. Many died and many others were permanently incapacitated by this – high doses of industrial alcohol are extremely poisonous, especially when rapidly consumed.”

    Trivial nit pick- it was probably the denaturing agents (generally methanol) added to the ethanol that did most of the damage. IIRC, methanol is still added to ethanol (pure drinking alcohol) to denature it eg. methylated spirits.
    Obviously this doesn’t invalidate your points in any way.

  8. Hal9000
    August 17th, 2012 at 09:56 | #8

    @Troy Prideaux
    Actually, I understand toxic agents were added at least in part in order to make the fuel less palatable – a policy folly akin to adding high levels of strychnine to seized heroin and then releasing it to the illicit market. Sailors were also deriving their alcohol from other questionable, sources such as clandestine stills, medical and dental supplies, cleaning and polishing agents etc.

  9. August 17th, 2012 at 10:10 | #9

    Emetics can be added to make people vomit, which is actually quite sensible, but it’s not always effective. And also, the spirit of free market innovation has resulted in the development of a variety of ways for alcohol entrepreneurs to defeat emetics.

  10. Alan
    August 17th, 2012 at 10:24 | #10

    The other thing with the whole drugs/alcohol/tobacco issue is that you can always find a (usually) US billionaire who will happily fund your research if you say what they want. The piece posted by Strocchi appears on the website of ALCAP which describes itself as:

    an interdenominational ministry that, working together with the churches of Alabama, serves as “Alabama’s moral compass.”

    http://www.alcap.com

    ALCAP is the political arm of the Alabama Baptist Convention. It promotes laws against abortion, homosexuality, tobacco, drugs and alcohol and (just quietly) climate science. The piece itself was published in 1989 by the New York Times. It does not represent the consensus of historians and has been extensively debunked. Nevertheless a certain kind of activist will eagerly post a 30 year old opinion piece as if it were gospel truth with the customary conspiracy theory to explain everything.

    http://www2.potsdam.edu/hansondj/controversies/20070322134427.html

  11. August 17th, 2012 at 10:29 | #11

    Emetics: The Digital Rights Management of industrial alcohol.

  12. Alan
    August 17th, 2012 at 10:33 | #12

    And just because it is such a great quote (and very FDR)

    “What America needs now is a drink” declared President Franklin D. Roosevelt at the end of Prohibition.

    http://www2.potsdam.edu/hansondj/FunFacts/Prohibition.html

  13. Ernestine Gross
    August 17th, 2012 at 10:36 | #13

    @Hal9000

    “Conversely, the cumulative effect of the measures adopted in relation to tobacco is, first, to remove tobacco as a third party hazard by restricting smokers’ freedom to practise their habit in public or confined spaces occupied by non-smokers; second, to limit the industry’s ability to propagandise and recruit new addicts, particularly the young; and, third, to use marketing techniques in the cause of public health by reinforcing accurate messages about the health dangers of tobacco smoking.”

    Overall I agree with this summary. I have yet to meet a smoker who objected to the banning of smoking in confined public spaces as soon as the third party hazard became known. I don’t know of one who objects to banning smoking in a car with children as passengers. From there on it gets a little difficult. What is the sense of banning smoking in a garden pub where people go to drink alcohol? It is not true alocohol consumption does not cause third party hazards – some people become violent (others become jovial and yet others sleep in the street). Would pubs for smokers with vending machines, instead of staff, for alcoholic drinks be allowed; if not why not. I know many smokers who are happy to hear the rate of smoking among young people is declining and these people don’t smoke in front of children or teenagers. To the best of my knowledge these people do not object to the public education programs.

    But how much taxes should the established (adict) smokers pay on cigarettes? More than GST? Yes, I suppose. But 80%? Should there be a special tax on the profits of ‘big tobacco?

    I deliberately rely on my private observations regarding ‘attitudes’ and ‘social behaviour’ because I don’t trust the ‘research’ on either side.

  14. Ernestine Gross
    August 17th, 2012 at 10:45 | #14

    @Peter T

    “if governments only cared about revenue, they have been remarkably obtuse. A range of government interventions over three decades have reduced tobacco use from 70% of adults to around 16% today (and still dropping).”

    You may be right but you haven’t established this as yet with your numbers. The population size changed and the tax on cigarettes has changed.

  15. Freelander
    August 17th, 2012 at 12:28 | #15

    Smoking is not a private thing, neither is drinking alcohol nor taking drugs. Even gambling is not a private thing.

    Reading Harry Potter books is possibly a private thing and therefore should be tolerated (despite the self-harm).

  16. Jim Birch
    August 17th, 2012 at 14:48 | #16

    @John Mashey
    This suggests that the government should be putting pictures of unfashionabe old people on cigarette packets!?

  17. Patrickb
    August 17th, 2012 at 16:19 | #17

    @Freelander
    Er … so Freelander’s approach is just to ignore anyone points and assert that they have a solution without explaining anything. A fairly blockheaded approach. Why do they both posting here? The fact is Freelander that history makes a mockery of your assertions.

  18. Joihn Mashey
    August 17th, 2012 at 17:01 | #18

    “unfashionable old people”: maybe, whatever works. I’m not sure what the Oz laws expect.
    See this for US.
    ‘The U.S. Food and Drug Administration on Tuesday revealed the nine designs that will adorn cigarette packages. At least four of the images are disturbing – featuring badly diseased lungs, tracheotomy holes, a cadaver or lips with open sores – and all but two of the images are pictures of real people.’

    Again, I conjecture that this will have little effect on well-addicted smokers who simply cannot stop. It may deter lighter smokers. But, I’d claim that the metric that really matters is the smoking rate at age 18-19, because most people are either addicted (or not) by then. If they want to start at 21,they can go ahead. All sorts of human societies go to great lengths to give children chances to make mistakes and grow up, while trying fiercely to keep them from damaging themselves permanently. Cigarettes are a strange exception.

    In the US, it’s been almost 50 years since the Surgeon General’s report in 1964.
    In round numbers, anyone born in 1952 was 12 then. 20% of adults in US still smoke, which means that any smoker age 60 or lower started as a child since the Report.
    Three years after “Joe Camel” started, his recognition among 6-year-olds was as good as that of Mickey Mouse. Those marketeers are “good.”

  19. Freelander
    August 17th, 2012 at 17:49 | #19

    @Jim Birch

    Old people, unfashionable or not, would give smokers false hope that they might live that long.

  20. Freelander
    August 17th, 2012 at 17:53 | #20

    @Patrickb

    But history doesn’t. There is evidence that simply targetting supply is stupid. But one should have expected that.

  21. Alan
    August 17th, 2012 at 18:44 | #21

    @Freelander

    Thank you for telling us there is evidence. Now could you tell us what it is?

  22. Freelander
    August 17th, 2012 at 19:36 | #22

    @Alan

    Can’t be bothered arguing with those who simply want to argue. Don’t seem able to understand what they read. And indicate a complete unwillingness to accept when they’re wrong. Only a fool argues with a fool (except maybe for entertainment).

    With all the marvels of the internet you could find the answers yourself if you wished. But that is not what you wish. You wish me to provide them for you, and in response you will simply deny.

    Now I would be a fool if I played into that game.

  23. Freelander
    August 17th, 2012 at 19:44 | #23

    @Hal9000

    How do you explain people who are not against consenting adults engaging in gay sex, or adults consuming most porn, but are against drugs? Doesn’t seem to fit your claims?

  24. Freelander
    August 17th, 2012 at 19:51 | #24

    Reprehensible as the practice may be, I believe even children ought to be free to read Harry Potter or Twilight.

  25. Patrickb
    August 17th, 2012 at 21:51 | #25

    err … after the embarrassing silence …. anyone care to respond to Freelander?

  26. Freelander
    August 17th, 2012 at 22:03 | #26

    Given the length of the silence, do you think you’ve demonstrated sufficient embarrassment?

  27. Alan
    August 17th, 2012 at 23:50 | #27

    @Patrickb

    If you engage them you get unsupported arguments accompanied by multiple evasions. Whatever you say is taken as proof of Freelander’s self-evident rightness. Apparently if you don’t engage him the same rules apply. Whatever you don’t say is apparently also proof of the self-evident Freelander rightness.

  28. Freelander
    August 18th, 2012 at 00:09 | #28

    Interesting. Can’t read, and now, dissolves into incoherent gibberish.

  29. John Mashey
    August 18th, 2012 at 09:45 | #29

    Ernestine:
    “From there on it gets a little difficult. What is the sense of banning smoking in a garden pub where people go to drink alcohol?”

    I’m not sure of Oz rules on children in such pubs, but that is certainly OK here, where there is lots of outdoor dining year-round and people like having wine or beer with their meals and some bring their kids. The idea of “pub” varies.

    While alcohol certainly can cause short-term or long-term problems, for most people it doesn’t and usually, the fact that someone at the next table is drinking moderately is not a problem. On the other hand, if someone is smoking nearby, that may or may not bother most people, but it might not be good for kids, or asthmatics of any age.
    See the references in this.

    Of course, in many places, the tobacco smoke is the least of outdoor air pollution worries, which argues especially for bicycles/electric cars, etc in places susceptible to them. But for sure, if an outdoor pub can allow smoking there, people should be warned ahead of time that no one with kids or asthma should go near it.

  30. John Quiggin
    August 18th, 2012 at 10:01 | #30

    Freelander, please take your side dispute to the sandpit

  31. Freelander
    August 18th, 2012 at 14:28 | #31

    @John Quiggin
    I don’t have a dispute so why don’t you tell them?

  32. Katz
    August 22nd, 2012 at 09:06 | #32

    The Baillieu government in Victoria plans to ban the display of bikie gang insignia.

    Is this an infringement of intellectual property rights?

  33. TerjeP
    August 22nd, 2012 at 09:22 | #33

    Katz – I don’t know. However it is outrageous anyway. The laws invented in the name of “getting Bikie gangs” are pathetic.

  34. Katz
    August 22nd, 2012 at 09:27 | #34

    The answer is that it isn’t an infringement.

    But I agree with you about the ham-fisted, populist political bullying of bikie gangs.

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