How Tobacco Industry Hijacked Public Health Agenda

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A presentation by Hemant Goswami on How tobacco industry have managed to manipulate the public health agenda over the years. Quoting from the tobacco industry documents itself, Hemant demonstrated the tactics the industry uses to plant tobacco control legislations themselves to prevent any effective and powerful legislation from coming into effect.

Example of how Indian Tobacco Control law has been weakened by the industry influence has also been given by Hemant in the presentation.

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How Tobacco Industry Hijacked Public Health Agenda

  1. 1. how ‘Tobacco Control’ agenda and the how Control’ agenda and the Government’s have been Government’ manipulated by the Tobacco Industry? The Real Picture Hemant Goswami www.TobaccoFreeIndia.Org www.TobaccoFreeIndia.Org Free
  2. 2. Smoke- Smoke-Free Legislations sponsored by the Tobacco Industry? Around the late 1980s, the tobacco industry made a fundamental shift in its legislative strategy from simply fighting bills it didn't like, to actively drafting and pushing legislation designed to head off public resistance to its products. They called it their "proactive strategy" or "throwing bombs." They used it to dissipate opponents' resources, harass them, get out in front of them and keep them from causing more trouble for the industry. Related strategies to manipulate legislations was already being practiced by the Industry since 70’s. Lessons in Legislative Manipulation From the Tobacco Industry by Anne Landman [From the Tobacco Industry Documents Depository]
  3. 3. Smoke- Smoke-Free Legislations sponsored by the Tobacco Industry? TACTIC: Instead of a Strong Law, Manipulate to Push a Weak One [That too at the federal level] One corporate legislative "bomb-throwing" tactic involves pushing through weak, ineffective laws designed to head off more restrictive ones. The Industry uses friendly legislators to introduce and steer the bills and amendmends. The Tobacco Industry Strategy has been clear; "Publicly, tobacco industry advocates should express the position that NO smoking restriction law is desirable. If pressed, they should acknowledge that uniform regulation throughout the state is preferable to the state of confusion which now exists. Privately, our lobbyists would of course encourage legislators' support of the substitute [weak] bill.“
  4. 4. The Proactive Legislation Why Industry Pushes Smoke-Free Legislations?
  5. 5. Tobacco Industry Ensures Compliance Promoting laws Which do not hurt their business
  6. 6. Building Relationships A Part of Well Planned Strategy What is Grasstops?
  7. 7. The Grasstops Strategy
  8. 8. THE INFLUENCE OF THE TOBACCO INDUSTRY ON EUROPEAN TOBACCO- CONTROL POLICY - Gerard Hastings, Kathryn Angus.
  9. 9. The Industry Fears And the Proactive Strategies
  10. 10. Engage with Lawmakers USING RELATIONS TO AVERT POSSIBLE REGULATIONS
  11. 11. The Game Plan Evaluating Legislation and Deciding Which Will Get Through
  12. 12. Are we sitting DUCKS? The Industry Claims – way back in 1994 [We Have Passed Tobacco Control Legislations]
  13. 13. Who Is the Winner? Tobacco Industry or the Public Health Advocates We Have Actually Lost
  14. 14. Indian Legislation Indian Tobacco Control Legislation was passed on April 30, 2003 (By the Upper House too). It does not refer to the FCTC but rather reads; “WHEREAS, the Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco; AND WHEREAS, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation.” QUESTION: Why was there such a haste – When the FCTC negotiations had already reached its final stage, why the hurry? When the Indian government was a part of the FCTC negotiation; why there is no reference of the same in the tobacco control legislation? And… Any Guesses?????
  15. 15. Over the Years Tobacco control is handled by Federal/ Union Governments – Why? EXAMPLE – INDIA According to the Indian Constitution, all trade and related matters are a subject matter of the State government and the Union/Federal Government is not allowed to interfere in it (except for specified items). The Seventh Schedule of the Constitution provides for the specific list. However making a departure from this, a specific provision was inserted in the “Tobacco Board Act, 1975” and later in “Cigarettes and Other Tobacco Products Act, 2003 (COTPA)” which declared that, “It is expedient in the public interest that the Union should take under its control the tobacco industry.” Thereafter this placed “Tobacco” directly under the control of the Union Government. It restricted the states greatly in matters of enacting legislation and gave the final authority only to the Union Government to make rules (delegated legislation) or amend the law.
  16. 16. The Industry Strategy Go for National/Federal Legislations FROM THE HORSE’S MOUTH
  17. 17. Example - India Section 4: No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. This provision was inserted in the last minute on the basis of a single half-page representation by the Hotel and Restaurant Association. Prior to 2003, such a provision/ exemption did not exist in any of the State level tobacco control legislations. [Headed by ITC Limited, the biggest tobacco company in India. ITC operates a chain of big hotels in India]
  18. 18. Example - India Section 5. (1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products ………………… Provided that this sub-section shall not apply in relation to— (a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product; (b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale. This exemption did not exist in any of the State level tobacco control legislations. No body asked for it …. But the exemption sneaked into the legislation…
  19. 19. Public Places [An area fully exploited by industry to spread confusion] Section 2 (l) “public place” means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space; Then there was an attempt to correct it in the rules ….. Which added to more confusion Rule 2(c) “open space” mentioned in Section 3(1) of the Act shall not include any places visited by the public such as open auditorium, stadium, railway station, bus stop and such other places; and This was further complicated (and added to the confusion) by the October 2, 2008 notification which provided even a newer definition of “Public Places.”
  20. 20. Promoting Major Aberrations Provision of “The Cigarettes (Regulations of Production, Supply and Distribution), Act, 1975:” Section 19: Offences to be cognizable and bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be bailable. (2) For the avoidance of doubts, it is hereby declared that every offence punishable under this Act shall be cognizable.
  21. 21. New Legislation Provision of “CIGARETTES AND OTHER TOBACCO PRODUCTS ACT, 2003:” Section 27: Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be bailable. (The necessary requirement of the offences being COGNIZABLE is missing)
  22. 22. Criminal Procedure Code THE FIRST SCHEDULE II-CLASSIFICATION OF OFFENCES AGAINST – OTHER LAWS If any offence is punishable with imprisonment for less than 3 years or with fine only it is triable by any magistrate and shall be treated as Non-Cognizable (Unless the cognizability of an offence is mentioned in the legislation) Meaning thereby: A policeman/enforcement officer can not make arrest without warrant and/or register FIR or investigate without courts prior order. Both, the provisions related to advertising ban as well as the graphic warning are stuck in this technicality.
  23. 23. Makes it useless This lacunae leaves the pictorial warning provisions largely un-implementable and useless. Only a highly motivated law enforcement officer is likely to go through the long process to book any violator. This has till date not happened with Section 5; which also has a similar lacunae.
  24. 24. Manipulation even with the public warning text Rule 3 reads: Prohibition of smoking in a public place. —(1) The owner or the manager or in charge of the affairs of a public place shall cause to be displayed prominently a board, of a minimum size of sixty centimeter by thirty centimetre in the Indian languages(s) as applicable, at least one at the entrance of the public place and one at conspicuous place(s) inside, containing the warning “No Smoking Area - Smoking here is an offence However this was replace by a new regulation recently (in 2008). Interestingly, no one from the tobacco control or public health community asked for it. Effectively it reduced the size of the warning and also made it more complicated to comply with. The dangerous thing is – No one noticed this change or questioned why this was done. Schedule II [ The New Provision w.r.t. the warning against smoking at public places] 1. The board shall be of a minimum size of 60 cm by 30 cm of white background. 2. It shall contain a circle of no less than 15 cm outer diameter with a red perimeter of no less than 3 cm wide with a picture, in the centre, of a cigarette or beedi with black smoke and crossed by a red band.
  25. 25. Example Direct Bribes All the major political parties in the Indian Parliament were given donations by the biggest tobacco company “ITC Limited.” The donation (Official – on record) runs in crores for all the National political parties in India. In 2005, ITC Limited provided 1.44 crore Rupees to the Congress and 1.37 crore to BJP (The ruling and the opposition political parties in Indian). Some of the parties which have accepted money in 2005 from ITC Limited are All India Anna Dravida Munnetra Kazhagam - Rs. 0.06 Crore; All India Trinamool Congres - Rs. 0.04 Crore; Bahujan Samaj Party - Rs.0.19 Crore ; Bharatiya Janata Party - Rs.1.37 Crores; Biju Janata Dal - Rs.0.11Crore ; Dravida Munnetra Kazhagam - Rs.0.16 Crore; Indian National Congress - Rs.1.44 Crores; Indian National Lok Dal - Rs.0.03 Crore; Jammu & Kashmir National Conference -Rs. 0.03 Crore ; Nationalist Congress Party - Rs.0.09 Crore; Samajwadi Party -Rs. 0.36 Crore; Shiv Sena - Rs.0.12 Crore; Telegu Desam Party - Rs. 0.15 Crore; Janata Dal (United) - Rs.0.08 Crore; Jharkhand Mukti Morcha - Rs.0.05Crore; Rashtriya Janata Dal - Rs. 0.21 Crore; Shiromani Akali Dal - Rs. 0.08 Crore; Telangana Rashtra Samithi -Rs. 0.05 Crore 2005 – Annual Report of ITC
  26. 26. Example – Involving Public Functionaries Tobacco Industry Partnering with the Background Government officials Godfrey Phillips India Limited, is the second largest tobacco company in India associated and Politicians with “Phillips Morris.” It has a cigarette brand named “Red & White.” In 1980’s this brand was being promoted by targeting it to the lower middle and middle class segment. As a conscious attempt to market and promote these cigarettes, the “Red & White” brand was positioned to associate it with the aspiration levels of the middle class and lower middle class of India. One of the identified aspirations of the middle class was recognised as a need to appear different; to do something worthwhile; to be brave and to be identified. The whole marketing strategy of GPI revolved around this concept and thereafter the concept of “Bravery” became an inseparable part of the brand-image of “Red & White” Since 1990, the bravery awards are handled by the marketing team of “Godfrey Phillips India Limited” and the expenses are debited to the marketing account of the company. The vice-president marketing or sales of GPI is the one who coordinates the activity. The Law is against it and it prohibits any kind of promotion of aby tobacco product in any form. Section 5 of the “Cigarettes and Other Tobacco Products Act, 2003” reads; “no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.” Section 5-(3) further reads; No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of— (a) Cigarettes or any other tobacco product; or (b) Any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person. Article 13-2 of FCTC: “Each Party shall, in accordance with its constitution or constitutional principles, undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship.” We (the presenter, Hemant Goswami and Burning Brain Society) even went to the High Court, highlighted the issue and got an assurance from the Government that they will adhere to the law on tobacco control and not engage in such activities. However, the brand promotion continues with the support of top politicians.
  27. 27. Example - 2 Brand Endorsement From the “Brochure” of GPI Vice President & Finance Minister of India (Now Ex) Indian Union Minister for Finance (Defence Minister in the previous government) The (present) Home Minister of India Governor of Madhya Pradesh Former Advocate General of India Chief Minister of Delhi Dr Verghese Kurien, Who’s-Who of every State participate in the Known as the father tobacco companies indirect promotion and liaison activity. Some for greed, some for a of White Revolution ? return favour and others for unknown reasons in India
  28. 28. Example - 2 List of people who help out the tobacco company – They are the people who should otherwise enforce the tobacco-control law. No surprise that not a single case under the tobacco control law has been registered since the promulgation of the legislation. Since the enactment of the legislation in 2004, the patronage of top bureaucrats and politicians continues. Credit goes to the tobacco companies for keeping these people on their rolls. The Punjab Governor and UT Administrator Gen. S. F. Rodrigues at the Red & White Activity
  29. 29. Example Invitation issued by the office of the Vice- President, Government of India for covering the “Red & White Bravery Awards” The Vice-President of India along with the then Finance Minister (Now Home Minister) on June 3, 2005 at Delhi Invitation sent to the press from the office of Vice-President of India [Obtained by Hemant Goswami from the office of the Vice Presidents]
  30. 30. A Manipulation Game – Emotional Plank in the name of Farmers Whenever tobacco industry is cornered, the politicians and the bureaucrats on the roll of the industry start talking about the “Interest of the Farmers.” Recently, major changes and policy shift in tobacco control in India was done by calling it in the “Interest of the tobacco farmers.” But the fact is that the poor farmer gets less than 1% (one percent) of the net value from any kind of tobacco product sale Tobacco farmer Interestingly ….. Nobody talked about farmers during the MSA negotiations when tobacco was on the verge of gets just 1 cent being declared an illegal product. In-fact, the farmers were from every dollar not even referred to and neither were they considered spent on stakeholders. tobacco
  31. 31. These pictures were supposed to appear on tobacco brands and were also notified in 2005 – However they never saw the light of the day. Why and How?
  32. 32. NOTIFICATION New Delhi, the 5th July 2006 G.S.R. 402E Rule 2(c): “Principal display area” means (i) for box type packages, two equal sized largest surface area(s) of the box that may be displayed or visible under normal or customary conditions of sale or use; (ii) for pouch type packages, the entire surface area of the pack that may be displayed or visible under normal conditions of sale or use; (iii) for conical or cylindrical type of packages, the entire curving area of the pack that may be displayed or visible under normal or customary conditions of sale or use; (iv) for any other form or type of package, the entire surface area of the pack that may be displayed or visible under normal or customary conditions of sale or use; (b)“specified health warning” means, such health warnings as specified by the Central Government from time to time, in the schedule to these rules. Rule 3. Manner of packing and labelling.- 3(1) Every person engaged directly or indirectly in the production, supply, import or distribution of cigarette or any other tobacco products shall ensure that,- every package of cigarette or any other tobacco product shall have the specified health warning exactly as specified in the schedule to these rules;
  33. 33. The Schedule Schedule (see rule 3) Components of specified health warning.- The components for the specified health warning shall include: (1) Skull and Bones Sign.- Every specified health warning shall mandatorily include a pictorial depiction of skull and bones sign, in white on a black background (100% black) with white outlines. This sign shall be prominently placed on the top left hand corner of the warning. (2) Health Warning.- The warning “Smoking Kills” (on smoking forms of tobacco products) and “Tobacco Kills”(on smokeless/chewing and other forms of tobacco products) shall appear in white font colour on a red background (consisting of 100% magenta + 100% yellow). (3) Pictorial Representation of ill effects of tobacco use.- Pictorial depiction of the ill effects of tobacco use on health, shall be placed below the skull and bones sign, and should appear in colour exactly as in the soft copy provided in the CD accompanying these rules. (4) Health Message. - Every specified health warning shall include the health message in black font colour on a white background. The health message should be printed in easy to read black font on a white background and the font type/font size shall be, exactly as per the soft copy provided along with these rules. ………………… 3. Minimum size of the specified health warning.- (1) The minimum size of the specified health warning on each panel of the tobacco pack shall be 3.5 cm x 4 cm to ensure that the warning is legible and prominent. (2) The size of all components of the specified health warning shall be increased proportionally according to increase of the package size to ensure that the specified health warning occupies fifty percent of the principal display area/s of the pack.
  34. 34. Notification Replaced MAJOR SETBACKS: 1. Picture Warning on both sides replaced with one side 2. 50% display on both panels (100% one side) replaced with 40% on one side 3. Strong picture messages replaced with meaningless and useless messages 4. The necessity of having the warning language in local language done away with ……..Thereby making the whole exercise ABSOLUTELY USELESS
  35. 35. Breach of Trust with the Public Dilution of graphic images to be printed on tobacco products 2 2 0 0 0 0 5 8
  36. 36. What The Law Provides Section 8: (1) The specified warning on a package of cigarettes or any other tobacco products shall be— – (a) legible and prominent; – (b) conspicuous as to size and colour; – (c) in such style or type of lettering as to be boldly and clearly presented in distinct contrast to any other type, lettering or graphic material used on the package or its label and shall be printed, painted or inscribed on the package in a colour which contrasts conspicuously with the background of the package or its labels. (2) The manner in which a specified warning shall be printed, painted or inscribed on a package of cigarettes or any other tobacco products shall be such as may be specified in the rules made under this Act. (3) Every package containing cigarettes or any other tobacco products shall be so packed as to ensure that the specified warning appearing thereon, or on its label, is, before the package is opened, visible to the consumer.
  37. 37. What The Law Provides Section 9: (1) Where the language used on a package containing cigarettes and any other tobacco products or on its label is— (a) English, the specified warning shall be expressed in the English language; (b) any Indian language or languages, the specified warning shall be expressed in such Indian language or languages; (c) both English and one or more Indian languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages; (d) partly English and partly any Indian language or languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages; (e) any foreign language, the specified warning shall be expressed in the English language; contents. (f) partly any foreign language and partly English or any Indian language or languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages. (2) No package of cigarettes or any other tobacco products or its label shall contain any matter or statement which is inconsistent with, or detracts from, the specified warning.
  38. 38. The kind of aberrations 29th September 2008 Notification: Rule 3(f): The specified warning shall be inscribed in the language/s used on the pack: Provided that where more than one language on the back the specified warning shall appear in two languages, one in which the brand name appears and other in the local language of the area where the product is being sold.” WHY? WHY? Replaced by 28th November 2008 Notification: Rule 3(f): The specified warning shall be inscribed in the language/s used on the pack: Provided that where more than one language on the back the specified warning shall appear in two languages, one in which the brand name appears and any other language used on the pack.”
  39. 39. The Provisions 2005; 5th July 2006 Notification and 15th March 2008 Notification Rule 3(e): no product shall be sold unless the package contains the specified health warning: Provided that the specified health warning shall be printed on every retail pack in which the tobacco product is normally intended for consumer use or retail sale, as well as any other external packaging, such as cartons or boxes;
  40. 40. Major Aberration 15th March/ 29th Sep. 2008 Notification Rule 2(b): “package” means box, pouch, conical, cylindrical or any other type of pack used for packing cigarette and other tobacco products. WHY? WHY? 3rd May 2009 Notification Rule 2(b): “package” means pack in which cigarette and other tobacco product is packaged for consumer sale but shall not include wholesale, semi-wholesale or poora packages if such packages are not intended for consumer use;
  41. 41. Dilution - Rule 3(1)(b) 2005/ 5th July 2006 Notification Rule 3 (1): Manner of packing and labelling - Every person engaged directly or indirectly in the production, supply, import or distribution of cigarette or any other tobacco products shall ensure that – (b) the specified health warnings shall occupy at least fifty percent of the principal display area/s of the pack and shall be positioned parallel to the top edge of the package and in the same direction as the information on the principal display area/s: Provided that for conical packs, the widest end of the pack shall be considered as the top edge of the pack: Provided further that for box and pouch type of packs, the specified health warning shall appear on both sides of the pack, on the largest panels; 15th March 2008 Notification Rule 3(1)(b) the specified health warnings shall occupy at least fourty (40%) percent of the principal display area/s of the pack and shall be positioned parallel to the top edge of the package and in the same direction as the information on the principal display area/s: Provided that for conical packs, the widest end of the pack shall be considered as the top edge of the pack: Provided further that for box and pouch type of packs, the specified health warning shall appear on both sides of the pack, on the largest panels; 3rd May 2009 Notification Rule 3(1)(b) the specified health warnings shall occupy at least fourty (40%) percent of the principal display area/s of the front panel of the pack and shall be positioned parallel to the top edge of the package and in the same direction as the information on the principal display area/s: Provided that for conical packs, the widest end of the pack shall be considered as the top edge of the pack: ( The Second Proviso about display on both sides go missing)
  42. 42. Penal Provisions Section 20 (2): Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees.
  43. 43. Penal Provision Section 20: (1) Any person who produces or manufactures cigarettes or tobacco products, which do not contain, either on the package or on their label, the specified warning and the nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees.
  44. 44. Old Cigarette Act of 1975 The Cigarettes (Regulations of Production, Supply and Distribution), Act, 1975 [The Act replaced by 2003 Act - COTPA] Section 17: Penalty- Any person who,- (a) sells, or distributes or supplies in the course of any trade or commerce, any package of cigarettes which does not contain, either on the package or on its label, the specified warning, (b) produces, or supplies or distributes in the course of any trade or commerce, any package of cigarettes which does not contain, either on the package or on its label, the specified warning, (c) advertises, or takes part in the advertisement of, cigarettes if such advertisement does not include the specified warning, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand WHY? rupees, or with both. WHY? Clearly the new legislation has been made weaker Clearly the new legislation has been made weaker and also been diluted even if compared to 1975 Act and also been diluted even if compared to 1975 Act
  45. 45. Let’ Let’s Rewind >>>>>>
  46. 46. It’ It’s Time to be Proactive The tobacco Industry has been manipulating both the Government as well as Public Health Activists. Most of us are playing to their tunes and merely REACTING to what the industry throws at us. The Industry is well prepared for all this…….. …….It’s time to be PROACTIVE and undo the DAMAGE

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