Overview

There is clearly a problem in enforcement of the Act.

Much tobacco advertising is visible from public places from point of sale premises. This is by contrived signs placed deliberately to be seen through the glass. However many items at the point of sale are advertisements in the public perception, yet no action is taken to oppose them.

Specific Sections and Comments

Part 1.

The definition of a tobacco advertisement must be strengthened to include the following item.

Point of sale displays, or displays in other places must not use packs, cartons or other images that have been associated with tobacco brand names to create an advertising effect. In other words, if the overall effect of a display is to give prominence to a tobacco brand name or images, colours, icons, trophies, events or logos singly or in combinations that are associated with tobacco that display shall be prohibited. The words 'icon,' 'event' and 'trophy' are particularly important, as the companies are likely to seek to use the images that they have created. It might be noted that in a display in 1987 in service stations, a Marlboro touring car that had not raced since 1981 was used in the photo display. The use of 'historical flashbacks' in a marketing context therefore must also be guarded against.

Section 4c which gives an exemption to packages or cartons must be repealed. Tobacco companies and retailers are building display piles of cigarette packs or cartons or are building cases for current stock that are designed to give massive prominence to tobacco packs.

Part 2

Section 5(4)e needs to be modified for point of sale, as images in the same colours as the cigarette pack and with pictures consistent with its image and its target market are being used close to the 'ad' so that the ad is stretched and given greater impact. Section 5, which supposedly renders Section 4e obsolete, has not done so. Items that should be covered by Section 4e remain a problem.

Section 12 must be repealed. There is a long history of Ministers giving exemptions. Most recently Dr Carmen Lawrence has done this. The law must remain absolute and there should be no ministerial discretion to break it. NSMA therefore submits that all of Section 12 be deleted. Failing this, Section 12 (6) should be deleted so that the exemptions end on 1 November 1995. It is ridiculous to make a law which comes into force with the last state in Australia.

Part 3

The Tobacco Advertising Prohibition Committee should be disbanded. It has clearly finished its function, and the tobacco industry has no place in discussions about health regulations with an appalling record of delaying and evading health initiatives.

Part 4- Enforcement

The problem with the is section does not lie in the power of the law, but in the fact that few people are trained or paid to administer it. In fact to all appearances, no one challenges the cigarette ads, and certainly no one removes them. It is also said by those involved in health promotion, that if a store is challenged about one type of ad, they agree to remove it, but almost immediately replace it by a different one that has the same effect on the viewing public. Indeed, it is quite convenient for the retailer to put a new ad, relating to a new event, be it a cricket match, a football match or a motor racing event as it gives the ads currency. It is necessary that either through the act or the regulations, but preferably the former, a real mechanism be set up for enforcement of the act. The following mechanism is suggested.

1. Tobacco retailers pay an annual licence fee and have to display a current licence on the display case of their cigarettes. This licence shall be A4 in size, to take up some of the area on the display case that is used as a surround to the small tobacco ads that are currently being run. The licence notice shall have to be placed on the display case if there is one and to have a section in large letters to inform the public as to the prohibition of sales of cigarettes to minors and a request for them to help enforce prohibition of sales to minors with a free telephone line to inform the authorities of breeches of the law. This line will be staffed and actioned and monitored for effectiveness according to a strict and results oriented protocol, unlike the previous 'Hotline' which merely resulted in multiple transfers around the Health Department.

2. It shall be an offence to sell cigarettes without a current licence. This fine shall be greater for those not having a licence than for having a expired licence, but shall be considerable and shall increase with repeat offences. On the third offence there shall be a mandatory gaol term.

3. The licence fees shall be put into a fund to enforce the act, and to discourage sales to minors. This enforcement shall include compliance surveys in which children under the age of buying cigarettes legally are sent to buy cigarettes. There shall be one episode of grace and after this every breech of the law may result in a prosecution.

4. The policing of the Act could be done by the Police Department on a commission basis. This currently occurs with the police computer collecting fines for the RTA. If this is so there shall be either a commission relating to a fixed percentage of the fines levied, or a performance agreement with the police department and supervised by the health department to achieve a desired result in terms of prosecution or compliance as proven by the compliance surveys mentioned above.

In addition to the above, it understood by NSMA that there needs to be changes to the Business Franchises Act to allow this licensing of tobacconists. Dr Peter Macdonald had a package of legal changes relating to this that had been researched and the department is encouraged to make use of this expertise, which was done by the parliamentary draughtsmen in cooperation with both the previous and the current health ministers.

Section 26 must be repealed as totally inconsistent with the spirit of the overall act. There is no room for 'voluntary agreements' with tobacco companies which have consistently denied the harm caused by tobacco, and have always tried to stretch whatever loophole possible to continue to promote their products.

A new section must be added which prevents music associated with previous cigarette ads, and currently it might be possible to have a spruiker within a retailer.

Display cases at point of sales shall not be given undue prominence to act as an advertisement, and no new display cases that show the front of the pack shall be displayed.

The front of any packs displayed after 30th April shall have the warnings that were mandatory from 1st January 1995 clearly visible on the pack. In other words, old stock without health warnings shall not be used to form an ad, as is currently happening.

No carton shall be used in a display of cigarettes.

It might be noted that large display cases in point of sale situations are having a regulation- sized ad in a display case where the large are around the case accentuates the ad, and effectively enlarges it. The regulation therefore need to be changed along the lines of:

"The area of a tobacco ad shall be taken in a context such that if a regulation sized ad is surrounded by a large area or visual effects to increase the prominence of the central area shall be considered as the total area of the framing image".

Since the new health warnings came into force on 1st January 1995, the following aspects should be noted:

1. Tobacco companies made the agreement that tobacco manufactured after 1st January only was affected. As at 18th April, less tan half the stock in the shops have the new warnings. This suggests that there was a massive stockpiling of cigarettes prior to the warnings being introduced in order to delay their introduction. (It might be noted that some manufacturers have done this more than others, Phillip Morris being the worst offender, Wills the least).

Clearly this means that he tobacco companies really do fear advertising restrictions and try to minimise them, despite their public pronouncements that advertising makes no difference.

2. Since the new health warnings have come in Rothmans has put the words '...anyhow, have a Winfield' inside their packets of Winfield. It is our submission that this is another deliberate attempt to undermine the health warnings. The 'government health warning is on the outside, but the friendly little message for those with 'inside knowledge' is to rationalise and smoke anyway.

3. Reports from Europe have shown that the pack is being used as an advertisement in itself, with trendy new designs as fashion statements. This has not yet come to Australia, but may do so at any time. Of course this makes a mockery of the Industry claim that it takes a long time to change pack designs. When it suits them they can do this easily. It is only a problem when health warnings are involved.

4. Drum brand cigarette rolling tobacco has a philosophical message, again stressing a rationalisation- The quote is from Keats, who had a short passionate life as poet before dying of TB. It is the same message- a reason to smoke, without being just dumb. The smoker is pursuing a short life filled with glory or pleasure. The rationalionsation is provided by the tobacco company just when the health warning threatens.

5. The cigarette brand 'Death' has been marketed in the UK as involving bravado and is getting a cult following among kids. It has a black pack with a skull and crossbones, and strong health warnings. Quit ads are subtly satirised, so the worse the health authorities make cigarettes sound, the more 'Death' become appealing. This brand is not here yet, but should be stopped.

As the number of advertising and promotion options are closed, it is not surprising that the tobacco companies are paying more attention is paid to the pack. It is the critical link between the image and

Conclusion- Deliberately increased

It is submitted that there is now ample proof that packages will be used as advertising and that the Industry will always try to avoid any regulation that prevents them from promoting their product, despite the obviously socially detrimental results of doing so.

It is thus necessary to prevent any attempt to prevent this increasing use of the pack as a marketing tool. Any words or image that are intended to increase sales or undermine the health warnings have to be prohibited. In practice, this will be hard to enforce, and liable to challenge in court or complex interpretation, as the present pack designs are trade marks and designed to be appealing and the High Court has ruled that there is a constitutional right to freedom of speech. This might thus mean that if any writing on the pack is allowed, the nature of that writing would be free.

Need for Generic Packaging

The preferred option thus is to go to generic packaging, which makes the policy decision to take away the glamour of the pack, as a public health necessity. The concept comes from Canada. In practice this would involve choosing a uniform colour for all cigarette packs and insisting that brand names be in a certain typeface and size, to limit the ability of the pack to conjure the glamorous images from the advertising, sponsorship and other marketing devices. It is felt that if this is not done, it will only be a matter of time before the pack receives even more attention as a marketing tool than it is receiving now. The pack is the vital link that must be broken between the images and the smoking. It can be argued that this cannot be introduced without the cooperation between the States. If so, the legislation should be passed in NSW mandating generic packs as soon as a majority of states have them. The government should then press through the Australian Health Ministers' Council to get uniform regulations for generic packs in all states.

Need for a Health Promotion Foundation

Ultimately it will be necessary to sue the tobacco companies for the harm that they have done to the public health, as has happened in a number of US states. In the meantime, there is little doubt that Health Promotion Foundations funded by tobacco tax can have a major effect on health, particularly on tobacco. The Californian experience has shown that Quit campaigns, if adequately funded by a health promotion foundation can make a huge difference to smoking rates compared to states where there was no foundation. It is time to give NSW the benefits of a body concerned with sponsoring the arts and participatory sport, based on need as well as merely its value as entertainment.

Limitations of This Act and Regulations

The major fact that must be recognised is that the Tobacco Advertising Prohibition Act is only part of a comprehensive strategy against tobacco, which must be pursued in a co-ordinated fashion with this legislation being deliberately created to fit in with other initiatives. It must be noted that significant falls in tobacco consumption have only happened government action. Initiatives must include:

1. Increase in taxation to the level of the highest in the country,

2. Restriction of sales to minors by prosecutions and the onus of proof on shop keepers that the purchaser was of age, not that they thought they were as a defence.

3. Licensing of retailers

4. Enactment of Smoke-Free indoor air acts, with complete bans on indoor smoking.