The Non Smokers' Movement of Australia Inc.
Protecting the rights of the Non-smoking majority from tobacco smoke and the tobacco industry's propaganda.

A Shortened Version of the 'Time for Action'
Submission by The Non-Smokers' Movement of Australia
to the
Senate Community Affairs Reference Committee Inquiry into the
'Tobacco Industry and the Cost of Tobacco-Related Illness'.

Dr Arthur Chesterfield-Evans - President
November 1994

The Non-Smokers' Movement of Australia, Box K860, Haymarket NSW 1240.


1. Executive Summary

2. An Historical Perspective

2.1. Ritual Small-Volume Consumption
2.2. Marketing and Consumption Rises in the 20th Century
2.3. An Epidemic Emerges
2.4. Slowness to Change

3. Understanding Tobacco-Caused Disease

3.1. The Toxic Ingredients
3.2. The 'Input' cancers
3.3. Lung damage
3.4. Arterial diseases
3.5. Direct Toxic effects
3.6. 'Output' cancers
3.7. The Addictive Component

4. Public Health Significance of Tobacco

4.1. Infectious Disease Epidemics
4.2. Vaccination
4.3. A New Disease Paradigm
4.4. Aetiological Fractions

5. The Tobacco Industry as an Historical Anomaly

5.1. The Legality of Tobacco
5.2. Evading Consumer Protection
5.3. 'Feral Governments'

6. Tobacco Industry Lobbying

6.1. Having it Both Ways
6.2. The 'Tightrope' Policy
6.3. The 'Rational Smoker' Concept

7. Beginnings of an Appropriate Response

7.1. The US Congressional Hearings
7.2. Some French Initiatives

8. Litigation as a Substitute for Government Action

8.1 Personal Smoke-free Indoor Air Actions
8.2 Advertising and Sponsorship Litigation
8.3. Trade Practices Litigation
8.4. The 'King Hit' Theory

9. Reasons for a General Lack of Action on Tobacco

10. Recommendations - What the Committee of Inquiry Should Do

10.1. Do its Own Investigative Work
10.2. Ask the Attorney-General to Investigate
10.3. State the Principles of Future Actions
10.4. State and Advocate a Strategy for Reducing Tobacco Consumption [2]
10.4.1. Raise Cigarette tax
10.4.2. Stop Tobacco Advertising and Promotion
10.4.3. Pass Strong Legislation to ban indoor smoking
10.4.4. Tighten Tobacco Access Laws
10.5. Create a Tobacco and Health Advocacy Agency
10.6. Create a fund for Tobacco-Caused Disease
10.7. Draft a Strategic Plan for the End of Tobacco in Australia
10.7.1. Recognise Tobacco's Harmful Effect
10.7.2. Classify Tobacco as a Drug
10.7.3. Sue the Tobacco Companies to Recover the Cost of Disease
10.7.4. Establish a Trust to Pay for Illness

11. References

12. Appendices

12.1. The Rothmans Memo [1]
12.2. Comparisons of Australia and NZ in falls in tobacco consumption.
12.3. Survey of Public Attitudes to Smoke-free regulation in 1982
12.4. News Clippings re John Scott Case

1. Executive Summary.

This submission ranges over a lot of issues to give the reader an historical perspective of both the epidemic of tobacco-caused disease and the nature of the inadequate actions against it. It is pointed out that the health forces do not have the resources to document adequately the promotional efforts of the tobacco companies, and that either a statutory body should be set up to do this, or an NGO should be funded to this end. Successive governments have taken little legislative action and been very poor in enforcing their own laws. Progress has largely been driven by individual litigation. The Committee of Inquiry must give its own resources to an investigation of a number of areas that are flagged.

No attempt is made to quantify the harm of tobacco in this submission, but the point is made that it is based on very conservative aetiological fractions, and that in terms of human misery, the cost of tobacco is even greater than its economic cost.

Recommendations: Suggestions for action are made in Section 10.

2. Tobacco in an Historical Perspective

2.1 Ritual Small-Volume Consumption

Tobacco started off as a ritual drug, but its hugely increased use this century has created the largest preventable disease epidemic the world has ever seen.

To set tobacco in an historical perspective, it was used by native Americans on ceremonial occasions, and brought back to Europe by Sir Walter Raleigh. It was taxed and available in small amounts. Men also made it a social ritual. Gentlemen wore smoking jackets because of the smell and smoked after dinner, retiring to a room for the purpose. Later they emerged, removed their jackets and spent the rest of the evening with the ladies. Cigars and pipes were principally used and pipes. Cigarettes were considered lower class. This was ritual use, and the amounts consumed were relatively low.

2.2 Marketing and Consumption Rises in the 20th Century

Two aspects changed this: the invention of the cigarette rolling machine by Duke in the 1880s, and the development of the science of marketing in the 20th century. The first world war was the beginning of a huge rise in world tobacco consumption. The war was so terrible that it was thought good to give the men some pleasure before they went 'over the top', often to their deaths. After the war, smoking was associated with toughness, which was reflected in film actors, and the gradual seduction of women into smoking. Smoking, which had been a private pastime became more widespread and also was allowed in public places, which had been frowned on. Tobacco consumption continued to rise between the wars, and after the second World War the tobacco industry intervened in the Marshall plan to make sure that tobacco went as well as food, so that Europe, with its rising income would still retain its tobacco addiction.

2.3 An Epidemic Emerges

Though it was believed that smoking was harmful from early days, this was tied up with religious notions, so was discredited as wowserism. However in the 1940s, there was a huge rise in lung cancer, which was not explained, and was attributed to smog from coal fires. Doll and Hill in a landmark study published in November 1950 [3] showed that tobacco smoking was the cause of the problem.

The tobacco industry was very concerned by this and Doll himself has said [4] that they tried to remove the harmful ingredient. He has also commented that the type of person in the industry has changed. Before 1950 they were entering a legitimate business. Those who have entered after this time knew that their product was harmful, and have had to make the choice as to whether to tell the truth and leave the business, or tough it out fighting politically until some event destroyed their industry.

In the 1950s more medical evidence emerged, but the Medical profession did not see its role as political lobbying, and the industry was doubtless the first to be aware that its product could not be made safe. The Report of the Royal College of Physicians in 1962, and the US Surgeon-General in 1964 reflected the puzzlement of the medical establishment that action had not been taken against such a major cause of disease, despite more than a decade of research.

2.4 Slowness to Change

Action against the tobacco problem has been slow, and it is significant that it is still marketed as if it were an innocuous product, being available in more outlets than food and readily purchasable by minors [5]. It is the most researched subject in the history of medicine by far, presumably because research is proportional to the amount of disease caused, and the cause, which is the sale of cigarettes has not been acted on sufficiently to make much difference to the diseases it causes.

3. Understanding Tobacco-Caused Disease

It is worth having a simple model of tobacco -caused diseases in mind, as there are so many of them that it may cause confusion. Tobacco diseases are best seen as the inhalation of toxic substances, some of which act immediately, and some of which have effects in the longer term.

3.1. The Toxic Ingredients are:

Hot gases, which directly irritate and harm mucosa

Tar, which contains substances that cause cancer

Carbon Monoxide, which inactivates red cell oxygen carrying capacity, and is directly toxic to cells especially those lining both the airways and the blood vessels

Nicotine, which resets the nervous system excitability, and the tone (tension) in the blood vessel walls. It is responsible for addiction.

Particulate matter, which may be deposited as soot.

These five ingredients are inhaled actively or passively, and cause a number of diseases, which can be listed in order of the tissues that they came in contact with.

3.2. Input cancers

Cancer of the lips, mouth, Pharynx, Larynx, lung as the tar and hot gases meet the tissues directly

Cancer of the oesophagus and stomach as the tar-laden saliva is swallowed.

3.3. Lung damage

Emphysema caused by direct damage to lung tissue, deposition of particulates, and airway damage leading to an inability to remove secretions leading to chronic bronchitis

3.4. Arterial diseases

The tar, nicotine and carbon monoxide cross from the lungs into the bloodstream. The tar and carbon monoxide may directly damage the blood vessel walls, and change the platelets (clotting cells) so that they stick to the blood vessel walls. The smooth muscles in the blood vessel walls are contracted by the nicotine, so the lumen (hole the blood goes through) is smaller. Hence the pressure is higher (same volume through a smaller pipe), and the flow more turbulent. The arterial effects are caused by reduced blood flow, by complete blockage or by the weakening of the blood vessel walls so that they dilate or rupture as an aneurysm. This process affects a large number of organs. The organ affected depends on which artery is affected.

Stroke- due to damage to cerebral arteries

Skin ageing- due to reduced skin blood flow

Heart disease- This is worsened as the heart has an increased load as the vessels contract, but also receives less blood itself.

Kidneys- these regulate blood pressure, so damage to these arteries has a compounding effect

Uterus- reduced blood flow leads to smaller babies, more prone to all neonatal problems.

Impotence- reduced blood flow to the penis is major cause of impotence

Gangrene- usually of the legs

Peptic Ulcers, due to reduced blood flow and less protective mucous production.

3.5. Direct toxic effects while circulating

Leukaemia- as the tar fraction affects dividing blood cells

Foetal abnormalities are increased

Hip fractures and slowed bone healing due to reduced blood flow and acid/base effects

3.6. Output Cancers- while tars are leaving the body in secretions.

Cancer of the urinary bladder

Cancer of the pancreas

? Cancer of the breast

Cancer of the cervix

Cancer of the prostate

Unpleasant smell

While tobacco is not the only cause of many diseases, the fact that there may be other processes also damaging organs does not justify the ingestion of substances that are known to be toxic on their own. The number of deaths are calculated as the difference in deaths between groups of non -smokers and smokers for each disease caused. Death estimates are from 45-60 per day in Australia, about a jumbo jet load per week. Latest research suggests in round figures that about half of smokers die of the habit, and about half of these die in middle age[6]. Roughly twice as many people are killed by cardiovascular disease as by cancers. Because few non-smokers die in the age group 45-60, about half the deaths in this age group are smoking-caused.

3.7. The Addictive Component is nicotine. Thus the trying of it and the temporary adolescent belief of its image-giving properties gives time for a re-setting of nerve outputs. By definition, an addictive substance gives a withdrawal syndrome, as the nicotine level falls. This may be why nicotine supposedly 'relieves stress'.

4. Public Health Significance of Tobacco

Former US Surgeon-General, C. Everett Koop called tobacco, " The chief preventable cause of death and the greatest public health problem of our time". It is comparable to the great epidemics of last century, so it is worth drawing historical analogies from these epidemics and responses to them.

4.1. Infectious Disease Epidemics

The nature of infectious diseases was defined by Koch. 'Koch's postulates' are still used to see if a disease is infectious. (They involve proving that a germ can be isolated from a person suffering from a disease and if the germ is introduced into a healthy person, they will be afflicted with a similar disease). Research since then (such as in the early days of AIDS) involves to researchers in seeing if the new disease complies with Koch's postulates, and hence is infectious.

A physician, John Snow, understanding the cause of infectious disease, was reputed to have stopped a cholera epidemic by removing the handle of the Broad Street water pump. At a policy level, once the cause of infectious disease was known there was a huge public health effort in engineering. Sewerage systems were produced and great stress was placed on provision of water of good quality. Some opposition to these public works was created by the water carters who made money from selling water by the bucketful. They even managed to get citizens to sign petitions asking the government not to meddle in their affairs by putting water pipes in their houses. They were eventually overcome (until recent times, when with the use of modern marketing they have been able to persuade people that the tap water is of poor quality).

4.2. Vaccination

Diseases spread by individuals were often viral and the discovery of vaccination led to the mildly invasive health practice of mass vaccination, which has eliminated small pox, and given the developed world many years free of polio, and much reduced incidence of other infectious diseases.

4.3 A New Disease Paradigm

Tobacco is now the chief preventable disease, and the nature of its definition as a causative agent has been defined by Doll in the same way that Koch defined infectious disease. Doll's work on the causes of cancer speaks of the nature of an association between an exposure to a toxic substance and a disease, a consistency in that association, a relationship in time, and a biological plausibility in terms of experimental evidence. However the tobacco industry is being considerably more successful in obstructing progress in tobacco than the water carters were in stopping fresh water supplies. Doll's work should be used as Koch's is and public health decisions made accordingly.

Tobacco disease is the model for diseases caused by industrial toxins, where an industry gains financially from creating a public health hazard, and endeavours to continue to do so. The difference between tobacco and other industrial toxic diseases (apart from its addictive nature), is that tobacco is unnecessary for the production of any goods.

4.4 Aetiological Fractions are the fraction of a certain disease that can be considered to be caused by tobacco. As a general rule they based on most conservative estimates, and as each new study comes out, they tend to be revised upward. Because the deaths from tobacco are so well known, these revisions are becoming less newsworthy. These conservative figures are also the basis of costing of tobacco-caused disease, so are also conservative. The other point is that even if a fraction of , for example heart deaths are due to tobacco, the fraction of premature heart deaths is invariably higher, so if age and human misery is counted, the cost is higher.

The tobacco companies also try to suggest that it's a 'good deal' for the government as pension costs are saved by the premature death. Quite apart from the abhorrence of a government tacitly agreeing to kill its citizens to save a few dollars, the fact that the companies make this submission suggests that they are well aware of the effect of their products, and culpable accordingly.

5. The Tobacco Industry as an Historical Anomaly

5.1. The Legality of Tobacco

There is little doubt that if cigarettes were introduced today, they may be illegal under the Dangerous Goods Act. Their marketing would be illegal under the Trade Practices Act. Clearly they were not illegal when they were introduced, but they could be considered to be so now. At some point in the last 44 years, what the industry has done has become illegal. The Trade Practices Act does not say that it is acceptable to sell a harmful product, merely because it has been sold before. The fact that it is harmful is now known, and arguably the industry commits a crime each time it sells a cigarette. This does not seem to have been noted, much less acted upon, and probably relates both to the activity of the Industry in acting like a respectable business, the inertia of societal thinking, and the pervasiveness and addictiveness of the custom. But there has been more than this.

5.2. Evading Consumer Protection

When the US Federal Trade Commission set up its consumer protection legislation, tobacco was specifically excluded. This was not for some high philosophical reason, but because the politicians from the tobacco growing states votes were needed to pass the FTC legislation. The destruction of individuals who tried to act on this, from Mike Pertschuk, who set up the US FTC to a succession of Health Ministers who tried to act on the tobacco industry was well documented in Peter Taylor's classic book, 'The Smoke Ring'. New evidence has emerged recently linking the voting record of US politicians in both the Federal and Californian legislature to their donations [8][9]. In Australia there was not until recently election funding disclosure, but tobacco donations featured in both the 'Age tapes' of the Coombe-Ivanov Affair[10], and the 'WA Inc. Royal Commission'.

5.3. 'Feral Governments'

While the tobacco industry likes to claim it has the same rights as any other citizen, it has immensely more power. Just as an ant and an elephant may be considered philosophically equal as creatures, the tobacco industry has immensely more power than the citizen it claims to be equal to. The income of each of the major tobacco corporations world wide are greater than the gross domestic products of many countries. Thus laws on 'freedom of speech' that were written to allow a small but honest person to tell the truth, are now used to justify the creation of whole realms of lies and disinformation. Smokers, who, the industry alleges are 'knowingly taking the risk', have been shown in a number of studies to have no real idea of the probability of contracting a smoking caused disease. The Industry adds to this confusion by trumpeting research on minimal problems with statements like 'coffee can kill you' to provide smokers with rationalisations like, 'Since everything kills you, nothing you do can make any difference, so you might as well smoke'.

Given the industry's immense resources, and their ability to carefully create misconceptions conducive to their sales, they should be treated as the equivalent of a government in terms of their market power. But unlike elected government, they are not responsive to the public health interest, and their activities generate immense costs for the national government. They are so powerful that only our legitimate government can oppose them- individuals, or even professions, cannot. It is basic principle of social harmony, that with power comes a requirement for responsible action. The tobacco industry has the power, but shows no responsibility. The book 'Brave New World' made Big Brother government the great threat to welfare. It did not consider that the multinational corporation, with the morality of a feral animal, but the power of a government might be a greater threat.

At present a health education scheme is disparaged as taxpayer funded propaganda by the 'nanny state', but tax deductible payments to film actors to present cigarettes as exciting and evade the advertising ban is considered 'free enterprise'. Our government needs to take action to defend us. 'All that is needed for evil to triumph is for good [people] to do nothing'.

6. Tobacco Industry Lobbying

The tobacco industry tries to prevent any action that would make it responsible for the problems it causes. It has consistently acted to increase its sales rather than mitigate its harm. It set up the Rothmans Foundation in anticipation of the ban on tobacco advertising [11]. A last-minute amendment to the Broadcasting and Television TV advertising ban allowed sponsorship, which the industry insisted was different to advertising. In that both advertising and sponsorship involve the juxtaposition of the name of a tobacco product and a positive image, many children were unaware that tobacco advertising was banned as they looked at its imagery. The difference between sponsorship and advertising was in who got paid, not in its effect on the viewers.

6.1. Having it Both Ways-

The industry, when threatened with advertising restrictions always argued for 'self-regulation', but when this was achieved, they claimed that what they were doing was not illegal. By this they meant that it was not specifically banned (and they could not reasonably have been expected to actually stop marketing).

Until recently the Industry concerned themselves with the 'benefits' of tobacco in totally economic terms, speaking of value of sales, jobs etc. Any aspect of pain and suffering was ignored. More recently, to boost their costing of the benefits of tobacco, they are adding a huge amount for 'pleasure'. Presumably this pleasure makes death acceptable, and justifies a change in economic methods.

6.2. The 'Tightrope' Policy

Their public statements on the health effects of tobacco over the last decade or more have guided by the so-called 'tightrope policy'. This involves saying that everyone believes that smoking is harmful (hence no one can sue as they assumed the risk), yet we, the industry, do not know if it harmful, or think it is 'statistical', (hence we are not liable for knowingly selling a harmful product). Eventually this contrived ignorance will have to be reckoned with.

The most recent demonstration of the tightrope policy was in the US Congressional hearings[12]. Here the Industry leaders managed to deny tobacco was addictive [13] by using 'common-sense' (i.e. non-scientific) definitions of addiction. They also managed to admit that smoking was a risk factor, but denied knowing if tobacco caused a number of diseases [14] or if it was harmful, including smokeless tobacco [15].

In this world of denial, the chief executives then felt put upon that they were asked to reveal more about their additives than food manufacturers, and generally resented government interference, painting themselves as a highly responsible industry. In that the Australian manufacturers are all branches of multinational corporations, this has huge implications for Australia.

6.3 The 'Rational Smoker' Concept

The most recent extension of the tightrope policy is the 'rational smoker' concept. The concept of the informed smoker, who was aware of all the risks, but still chose to smoke was greatly developed by tobacco interests at the Industry Commission hearing earlier this year. The fact that smoking may be harmful was defined as a risk, to be compared with a degree of pleasure. This was then extrapolated to be compared with other risk/pleasure decisions like going hang gliding, and then much work was given to an economic quantification of this pleasure, which was naturally enough measured by what one was willing to pay for the product. A more cynical explanation of the 'rational smoker' is that if enough attention can be given to this, the idea can be fostered that smokers are making their own decisions, (or at least might be making their own decisions). Thus the tobacco companies would not be responsible for the tobacco caused deaths (or might be given the benefit of the well-crafted doubt).

There are two points to be made about this. Firstly that research [16] shows smokers know little of the risks that are taking in a quantitative sense. And secondly, given the addictive nature of cigarettes (which the Tobacco Institute of Australia again denied in the hearings), and the deliberate provision of rationalisations by the industry, it is dubious that the best intentioned smoker can be entirely rational about his/her situation. The so-called 'rational smoker' argument is an attempt by the tobacco industry to avoid product liability litigation.

7. The Beginnings of an Appropriate Response

7.1. The US Congressional Hearings are part of the overall challenge to the legitimacy of the tobacco industry in the USA, where Dr David Kessler, of the Food and Drug Administration argued that tobacco should be regulated as a drug and that the industry has been manipulating nicotine levels to keep its addictive properties. It seems that this allegation stands, despite the efforts of the tobacco companies to undermine it.

Representative Henry Waxman, Chairing the US Congressional Committee in his introductory remarks called for a new relationship with tobacco companies, so that they had the same standard of corporate responsibility that the rest of the corporate world accepts. Since the hearings, Representative Synar of Oklahoma, one of the driving forces lost preselection due to negative campaigning by the tobacco and gun lobbies, and the US has become more conservative since the mid-term Congressional elections. In that there were a number of Republicans on the Congressional Committee trying to act as apologists, it cannot be assumed that Australia can wait for US action on tobacco. The US industry is more powerful than the Australian, even relatively, as they are exporting huge amounts, which the Australian offshoots are not.

7.2 Some French Initiatives

One of the problems of tobacco law, is that it is not enforced. The French government had given exemptions to exiting Formula 1 racing cars to carry cigarette brand names. When a new team commenced racing it assumed that it would have the same exemption. It raced in Australia (where the laws on car livery are extremely lax), and the French in 1993 prosecuted the company. FISA, the governing body protested, and promised to take the French Grand Prix elsewhere, but did not do so. The prosecution was successful.

A Non-Government Organisation, the Comite National Contre le Tobagisme, was given a seed grant to run prosecutions of areas in breach of tobacco laws. There were plenty of these on TV, in restaurants with no smoke-free sections, and in tobacconists with far more advertising than was allowed. The group is currently running about 60 prosecutions, most of which are funded by out of court settlements from people who breached the laws. As Australia has a long history of not enforcing its laws on TV sponsorship, and sales to minors this could be used, though our smoke-free indoor air legislation is so poor that it gives no scope.

8. Litigation as a Substitute for Governmental Action

The courts are very expensive, but litigation is easier to achieve than legislation in the tobacco area, and Australia' progress has been chiefly driven by legal actions.

8.1. Personal Smoke-Free indoor Air Actions

Compensation cases, such as that of Roy Bishop v. Commonwealth of Australia [17] in 1984, and Scholem v. NSW Health Department [18], which had a common law component have been very important in getting smoke-free indoor air in the workplaces.

8.2. Advertising and Sponsorship Litigation

The ban on tobacco advertising on TV led to the evolution of sponsorship. Expensive (from an activists' point of view) hearings in the Australian Broadcasting Tribunal in the late 1970s led to prosecutions of both Rothmans and Wills tobacco in the early 1980s. These did not lead to any political response. A Non-Smokers' Movement initiated prosecution of Channel 10 of 1984 was taken to the High Court by the Director of Public Prosecutions, with a final result in 1991. But despite these committals the loophole was not removed until the Tobacco Advertising Prohibition Act in 1993, and even this does not come into force until 1996. This took 20 years.

In the meantime increased use of global satellites will make the laws largely irrelevant. There has also been a change in brands advertised, such that Philip Morris is now advertising its Marlboro (world) brand as opposed to its Peter Jackson (local) brand, in preparation for this as the major vehicle for advertising.

8.3. Trade Practices Act Litigation

When the Trade Practices Commission re-approved a minimally-changed self regulation system for advertising in 1985, the Australian Consumers Association (ACA) appealed to the Trade Practices' Tribunal [19]. The action nearly bankrupted the ACA. The case received little publicity, and at the end, very little change was achieved to the self-regulatory system[20], largely because of the lack of an industry-approved alternative. After this defeat for consumers, another Commission hearing into the workings of the Advertising Codes in 1991, which again recommended little change, was not appealed.

The issue of misleading industry statements was again handled by the Trade Practices Commission, when the Tobacco Institute debunked the case against passive smoking. The weak 'corrective statement' that the Commission was satisfied with led to the Australian Federation of Consumer Organisations taking the case to the Federal Court[21], where satisfaction was obtained.

Since the industry seems to have no intention to do anything but market their product for as long as they are allowed, it is incumbent upon governments to act in the interests of public health.

8.4. The 'King-Hit' Theory

It might be noted that there are some lawyers in the USA who are working towards the goal of a personal injury tobacco liability suit believe that it will result in a precedent that will ultimately be the end of the tobacco industry. If so, it might be commented that the political process will have been unable to lead the nation on public health, relying instead on David to slay Goliath for it. Perhaps the efforts by various US State governments (e.g. in Florida) to sue tobacco companies for the cost of illness caused by tobacco may help achieve the same effect in an innovative way.

9. Reasons for a General Lack of Action on Tobacco

Given that a jumbo-jet load of people die each week from tobacco-caused illness in Australia, it is worth asking why more has not been done and examining the relatively pathetic record of all parties that may have been involved. It is not well known that New Zealand has had double the fall in tobacco consumption that Australia achieved in the years 1966-1993 [22]. The general reasons for this situation are:

9.1. As people have died at a regular rate and without individual fanfare, it is never a 'crisis' such as if one jumbo jet crashed.

9.2. The Industry has acted as if it is a legitimate business, and that its role in continuing to promote cigarettes is legitimate. Its lobby group, pretentiously named an 'Institute', has run a far more professional campaign than the health groups could even conceive.

9.3. The idea that because the government has not acted before, or has made some regulations that acknowledge the situation suggested that it accepted the legitimacy of what was happening. It was also perceived the governments did not enforce existing laws. When the advertising TV ban came in 1976, sponsorship was allowed to massively increase. Despite protestation at the Broadcasting Tribunal, and finally successful prosecutions by the Tribunal and then private citizens, the sponsorships will have continued for 22 years, by which time satellite TV will mean that as long as any country in the world allows sponsorship, every country will get it. Similarly the sales to minors laws are currently being enforced in Western Australia, but nowhere else in the country.

There are two public perceptions that result from this. Firstly that the government is not serious about its laws when big business or money is involved, and secondly that Australia will not enforce its laws, if it might offend groups such as FISA in motor sport, or if there is any possibility (however slight in reality) that tourism income may be lost. The most recent example of this was in the Australian Formula 1 Grand Prix on 13th November 1994, where the livery of cars was of third world standard and years behind the European standard, despite specific submissions on this subject over a long period of time.

9.4. There is not the tradition of individual liberty that has seen progress in the US driven by lawsuits from the public on their right to smoke-free air. Our litigation has been on the right for employees, rather than the public, to have smoke-free air.

9.5. The tobacco problem has been seen as a medical problem, rather than a political one. The cause of all tobacco-caused disease is known, yet there has been a total focus on the smoker rather than the cause. Because there was a medical model, all effort was concentrated on the smoker or potential smoker. Thus, there were 'Quit' campaigns for existing smokers, but the recruitment rate of children was only addressed by education [23]. It was as if an anti-malarial campaign was conducted by treating infected people with drugs and asking uninfected people to wear insect repellent. The swamps were not drained, and only some mosquitoes were sprayed. The tobacco industry was not significantly targeted, and much of their promotion was also allowed.

9.6. The medical profession has not seen its job as political lobbying, hence has given advice to governments, rather than actually lobbied, so the more politically astute industry has been alone in the field. For example it took the health forces a decade to lobby to raise cigarette taxes, which the Industry had quietly lobbied to have linked to the Consumer Price Index, thus avoiding both the rises in real terms and the publicity associated with these rises.

9.7. The fact that the Industry only had to retard initiatives, and political parties receiving funding only had to do nothing made it easier for the industry. The fact that such political party funding was secret must also have helped.

9.8. The lack of systematic education of politicians by the health groups. It is as though politicians are a nurtured enclave facing a disinformation campaign especially tailored for them by industry lobbyists.

9.9. The bureaucracy including both the health system and the education system are unable to run a lobbying campaign, as they see themselves in a Westminster tradition of being politically neutral.

9.10. The Trade Practices Commission has seen its role as arbitrating between trading corporations rather than as a defender of the public interest. An illustration of this concept of the Commission's role was that Mr Robert McComas, the corporate solicitor of AMATIL, a tobacco company, was appointed head of the Trade Practices Commission, and then investigated tobacco advertising in this capacity in 1984-5, before returning to a directorship of the tobacco company. The investigation was not initiated by the Commission and was only prompted by a request by the Media Council of Australia for re-authorisation of the minimally changed self-regulatory codes. The system that made those codes work in practices was not investigated. Another investigation in 1991 reached much the same conclusion.

9.11. The Industry Commission in its investigation of the tobacco industry has had its terms of reference carefully defined. Health matters were completely peripheral in 1991, when the question was still how to help the growers compete. Most recently in 1994, there was efforts to scale down the growing industry, or at least stop its subsidies, but the health aspect, which was half of its report, sat uneasily and uncomfortably with its mainly dry economic thrust.

9.12. The health charities have been very conservative in their funding and practice of advocacy. Given that tobacco causes over one third of cancer and one quarter of heart disease, it might be expected that their budgets would have been spent in the most cost-effective ways on this problem. Partly because of the medical model, which treats existent disease, partly the medical tradition of not being political, partly the tradition of being a respectable (i.e. conservative charity) and partly because the people with power in these organisations have a vested interest in research, the budget for political advocacy has been minuscule. Currently there is only one full-time lobbyist against tobacco in Australia, Anne Jones of ASH. She is funded by NSW Cancer Council and the National Heart Foundation with a tiny fraction of their budgets.

9.13. Quit groups are sometimes thought of as the 'anti-tobacco funding'. But they cannot do political advocacy, and they have never had resources to document industry activities. They are condemned to trying to sell a non-behaviour.

9.14. Non-Smokers' rights groups have never had much resources, and have never had tax deductible status, so that effectively the taxpayer funds half of the tobacco industry's advertising and lobbying, but none of the health advocacy. It must be recognised that the evidence these groups are able to give is correspondingly limited, as while they recognise the industry's marketing strategies in a general sense, they do not have the resources to document it all. For this reason, the Committee of Inquiry must discover material for itself. It cannot sit and wait for the two sides to present, as the case against tobacco industry will not be adequately able to analyse the Industry's actions.

9.15. The major political parties have had generous donations from tobacco companies, and in that these were secret until the recent electoral funding disclosure laws, and that all that was required was not to initiate action, it is likely that these have made a large difference.

9.16. The tobacco industry has made Australian cigarettes the lightest in the world because our excise relates to the weight of the cigarette. This has allowed the per capita amount of tobacco smoke to fall, but half of this fall is due to the tax avoiding cigarette designing rather than any health efforts. The consequence of the lighter cigarettes is that some health people feel that far more progress has been made than is really the case. In fact, because cigarettes have less tar and nicotine in them, more need to be smoked for the same dose of nicotine. The industry has therefore increased the number of cigarettes per pack. Australia now has packets of 50s, whereas most countries rarely have more than 25.

There are another two consequence of these low dose cigarettes. Firstly, that some health groups do not attack them, under the illusion that they are lower tar, therefore assuming that smokers smoked the same number they would have a lower dose, and secondly, the fact that smokers have to light up more often means that the custom is commoner and smoke-free indoor air is correspondingly more difficult to achieve.

9.17. Measurement of progress in tobacco control in Australia has usually been by prevalence studies, (i.e. surveys are done in which people are asked if they smoke and how many). These studies are difficult to do, particularly if there have been campaigns against smoking, which make people seek to minimise their smoking in answering the questionnaire. This is particularly so in children. David Sweanor, a Canadian campaigner has pointed out that if the number of people who smoke and the amount they claim to smoke is multiplied, the product falls short of the amount sold. This gap is widening. Thus 'progress' must be evaluated by sticks or weight, the latter having the disadvantages mentioned above.

The nett result of all this is that political action has always been behind and less than public opinion would have wanted [24]. This is despite the fact that the parliaments are elected to lead, not follow, public opinion.

10. What the Committee of Inquiry Should Do

10.1. Do its own investigative work. This should include:

10.1.1. Getting the material from the US Congressional Inquiry

10.1.2. Researching the French response both in terms of the Australian Grand Prix case and the use of a prosecuting agency or NGO to enforce the laws.

10.1.3. Researching tobacco marketing in Australia, especially items likely to appeal to children such as brand launches of Freeport, Rock Concert Sponsorships like those of Peter Jackson, and use of music, and competitions such as the cassette prize for Peter Jackson.

10.1.4 Investigate sponsorship, in particular the relationship between Rothmans and the Rugby League [25], and the work of the Rothmans Foundation.

10.1.5. Investigate the allegations and charges of John Scott [26]. This may be best done by referring the matter to the Director of Public Prosecutions.

10.1.6 Discovery as to the extent of the tobacco industry's awareness of the harmful effects of tobacco as opposed to its public statements.

10.1.7 The use of product placement in films, rock clips, videos, computer games.

10.2. Ask the Attorney-General to investigate:

10.2.1. Whether the selling of tobacco is likely to be in breach of the Trade Practices Act, in view of what is known about it.

10.2.2. Whether there is a case that the tobacco companies can be liable for disease that they cause, and whether this can be actioned for a population rather than for individuals on the basis of standard epidemiological principles.

10.3. State the Principles of Future Actions.

This should include:

10.3.1 That governments have a duty to end the tobacco epidemic, as the tobacco industry is showing no inclination to do so.

10.3.2. The Government should switch from smoker-based strategies to industry based strategies.

10.3.3. That the tobacco industry should pay for the harm that its product causes.

10.4. State and Advocate a Strategy for Reducing Tobacco Consumption Rapidly by:

10.4.1. Raising cigarette tax either to the level of world best practice, which is in Denmark at 85% of retail price. (Australia's is currently a low 61%) or To the level that maximises government revenue (as on the price-sensitivity figures of Alchin [27]) Remove tobacco excise from the CPI basket. Change the excise formula to make taxes relate to the number of sticks, rather than the weight of tobacco.

10.4.2. Stop tobacco advertising and promotion by: Following where the tobacco promotion money is spent, rather than by what is observed. This would make a large difference to product placement advertising that is becoming a large problem in films. If tobacco money is received, the film should, prima facie, be considered to be a tobacco advertisement, and be correspondingly in breach of the ban on tobacco advertising. There would need to be guarding against laundering of money. Introducing generic packaging. In the final analysis with satellite TV and the infinite variety of ways tobacco companies have of giving a positive connotation to their product, it is necessary to break this link at its only vulnerable point- the pack. Removing all Ministerial discretion to allow tobacco sponsorships.

10.4.3. Strong legislation to ban indoor smoking. This must encourage a behaviour change and must not be side-tracked by air-conditioning issue. It must relate to the best current US Environmental Protection Agency data and rely on behaviour change [28], rather than air conditioning costs. It must be simply enforced and not rely on air quality standards that are impossible to enforce due to measurement difficulties.

10.4.4. Changes to tobacco access laws, with: Licensing of tobacco retailers on a regular basis with increases in licence fees paying for enforcement, and The withdrawal of licences as a significant sanction. A gradual reduction in the number of licences.

10.4.5. Create a Tobacco and Health Advocacy agency, funded by tobacco tax responsible for enforcement of tobacco law and for advocacy of tobacco control policies, or alternatively fund one or more of the NGOs to do this function. This would be empowered to lobby Federal, State, and Local governments, as well as co-ordinating other groups and having input to community initiatives.

10.5. Create a Fund for Tobacco-Caused Disease Initially this would be funded by a tax levy for the purpose. Later it might recover costs from the tobacco industry as the tobacco companies are sued for existing costs on the model of some American States.

10.6. Draft a Strategic Plan for the End of Tobacco Use in Australia

This would involve:

10.6.1. The recognition of tobacco's harmful effect and the fact that many people are addicted, and the steps recommended above must be taken to reduce consumption. (Smokers should be seen as victims of the tobacco industry. Naturally there should be no attempt to ban tobacco per se).

10.6.2. Classify Tobacco as a Drug to Put its Regulation Under the Therapeutic Goods Act. This is clearly applicable given the addictive properties of nicotine. Regulations can then be made quickly and expeditiously based on the latest research to reduce consumption.

10.6.3. The Government should sue the tobacco companies for the cost of tobacco-caused illness and

10.6.4. Assuming 11.3, part of the settlement might be to establish a trust in which moneys for cigarette sales would be used to pay for illness, help people quit and to discourage recruitment. Tobacco executives might be offered immunity from prosecution, provided that they gave a number of years of public service in the hospital system, or in marketing health.

11. References

[1] This Memo was passed by a cleaner to a tobacco activist in the early 1980s. It was to be thrown out in the rubbish and relates to a management meeting at Rothmans in November 1970 at which it was stated that the Rothmans National Sports Foundation existed to create sponsorships because of the coming advertising bans.

[2] Figures from Murray Laugesen Dept of Health and ABS 1993,

[3] Doll R . Hill A B. British Medical Journal Nov 1950

[4] Doll. Personal communication

[5] NSW Health Dept Survey released November 1994

[6] Doll R. Peto R. et al. BMJ 309:901-910 8/10/94

[7] Taylor P. 'Smoke Ring, The Politics of Tobacco' Bodley Head 1984

[8] Begay M.E., Glantz S.A., 'Political Expenditures by the Tobacco Industry in California State Politics'. Institute for Health Policy Studies, School of medicine, UCSF, 1388 Sutter St., 11th floor, San Francisco CA 94109, ph (415) 476-4921.

[9] JAMA 19/10/94

[10] Hull Crispin, Canberra Times ?date

[11] Rothmans memo 1971

[12] Hearing of the House of Representatives Energy and Commerce Committee, Subcommittee on Health and the Environment, Subject: 'Nicotine and Cigarettes', Chaired by Henry Waxman, Californian Democrat. 14/4/94. Transcript available from Federal News Service, 620 National Press Building, Washington DC 20045, phone Cortes Randall at (202) 347-1400

[13] Cross examination of all executives by Rep. Wyden, Mr Johnston, RJ Reynolds; Mr Horrigan, Liggett; Mr Sandefur, Brown and Williamson; Mr Tisch, Lorillard; Mr Taddeo, US Tobacco (smokeless), Mr Campbell. Philip Morris. p42-3 of WP5.1 transcript.

[14] Cross examination of Mr James W. Johnson of RJ Reynolds Tobacco Company by Rep. Waxman , p 27-28 of Word Perfect version of transcript. Also Andrew H. Tisch of Lorillard Tobacco and William Campbell of Philip Morris p29, p35-36

[15] Smokeless tobacco was banned in Australia under the Customs Act as a substance likely to cause injury. US Tobacco challenged this ban in the High Court, spending more than their annual gross sales in Australia to argue along the lines that even if it did cause cancer this was not an injury, but a disease. To Dr Chesterfield-Evans' current knowledge, Australia is one of only three countries in the world than has banned smokeless tobacco.

[16] Mullins R, Borland R. and Hill D. 'Smoking Knowledge, Attitudes and Behaviour', Results of the 1990 and 1991 Household Quit Evaluation Study No. 6 1992

[17] Administrative Appeals Tribunal A 84/109, 14/10/85

[18] Scholem v. NSW Health Dept

[19] Australian Financial Review 3/4/87

[20] Sydney Morning Herald 13/8/87, Ad News 6/11/87, ACA submission to the Tribunal

[21] Aust. Federation of Consumer Organisations (AFCO) v. Tobacco Institute of Australia (TIA) No G.253 1987 in NSW Registry of Federal Court

[22] See Appendix 3.

[23] It is significant that in Australia, the prevalence of smoking has always been highest in low age groups and most of the fall in consumption has been due to quitting rather than changes in recruitment of new smokers.

[24] A Sydney Morning Herald Survey of 8/11/1982 (page 2) showed that 58% of people wanted a complete ban of smoking in restaurants. Yet 12 years later, there are still few well segregated restaurants in 1994, and the ACT legislation is the first in Australia. It relies on an inappropriate air conditioning standard, AS1668.2 and is yet to take effect.

[25] A starting point would be an article in B&T March 6th 1992 p22, 'Anyhow, Have a Tina Turner'. The ABC 4 Corners programme. 'The Big League' may also be relevant.

[26] John Scott was charged with fraud by Rothmans for taking money, but said that his job was to give handouts to cameramen, journalists etc to get tobacco images on TV through the sponsorship ban. 'Rothmans boasted of 'buying' sports body', Weekend Australian 10/2/90, 'Rothmans accused: 'Rewards for TV Mates', Sydney Morning Herald 10/2/90'

[27] Alchin, Terry. Determinants of Demand for Tobacco Products and Government Policy Implications from Symposium on the Economics of Drug and Alcohol Abuse, 30/4/93, ANU Canberra

[28] Indoor smoking bans significantly reduce consumption, and also de-legitimise smoking. Borland R., Chapman S., et al. American Journal of Public Health Vol 80. Feb 1990 p178, and Chapman S. Borland R et al

[29] 'Why the Tobacco Industry Fears the Passive Smoking Issue', Int. Journal of Health Services Vol 20 No 3 pp 417-27 1990.

12. Appendices (These are not included in this Short Version)

The Non-Smokers' Movement of Australia Inc. Box K860, Haymarket NSW 1240.
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