Big Tobacco’s argument against plain packaging is deeply flawed

Japan Tobacco’s dubious legal manoeuvres against the proposed Irish ban on branded cigarette packs are but the latest of many interventions by the industry to block the scheme.

This is an international campaign, well-organised and well-funded, and it has support from an assortment of business luminaries and political strays. Both the force of the industry endeavour and its demonstrable capacity to gain something close to real-time insight into sensitive policy debate within the Government bear witness to its power.

As an arbitrary legal “deadline” set by Japan Tobacco’s Irish arm for the withdrawal of the draft law from the Dáil falls today, the industry’s efforts to assert itself in Dublin bear scrutiny. Something more is at work here than the enlisting of top legal firms such as Arthur Cox to orchestrate preparations for court challenges against public health policy.

The Cabinet gave approval in late May 2013 to put plans in train for plain tobacco packaging. It was only three weeks previously that Taoiseach Enda Kenny, Minister for Finance Michael Noonan and then justice minister Alan Shatter had received a delegation of tobacco industry leaders in Government Buildings. Then health minister Dr James Reilly refused to attend.

Mr Kenny was heavily criticised by both the Opposition and by anti-smoking campaigners for taking part in the meeting, the first time any taoiseach had held formal talks with the industry. At the time, the Government said the talks were “solely and absolutely” on the topic of smuggling and that “no other matter was discussed”.

There is nothing at all to suggest otherwise. It might be added, however, that one of the industry’s arguments against plain packs is that they play into the hands of smugglers.

It is to the Government’s credit it went ahead with the original decision, and followed that up in June last year with the introduction of the legislation. At that point, the lobbying was well under way.

Reputational threat

Documents seen by

The Irish Times

in December 2013 showed how the then governor of Virginia, Bob McDonnell, had written to Kenny urging him to reject plain packs. McDonnell said there were other proven ways to regulate the industry based on “sound science” and without undermining “the great Irish business environment”. He said, pointedly, the initiative might undermine Ireland’s reputation as a country in which intellectual property rights are fully protected.

McDonnell’s credibility is now in question, for he and his wife were found guilty last September of public corruption for using his office to promote a businessman’s product in return for gifts, holidays and cash. Last month, he was sentenced to two years in federal prison. Yet the argument he made to the Taoiseach in respect of Ireland’s “reputation” would be advanced again by powerful interests.

Around the same time, four senior congressmen also wrote to Ireland’s Ambassador to the US, Anne Anderson, urging a reversal of the plan.

As is usual, Kenny was in Washington for St Patrick’s Day celebrations and gave a speech there last March at the headquarters of the US Chamber of Commerce. Days before the Taoiseach left for the US, the chamber and five other lobby groups wrote to him asking for a rethink on plain packs. “We urge you to consider the broader implications and avoid precipitous action that could convey an unintended and adverse message to Irish companies and foreign investors.”

This argument in defence of Big Tobacco’s intellectual capital in respect of brand designs smacks of the insidious. The message seems to be that Ireland’s foreign direct investment system would be threatened if plain packs were introduced. There is no Irish threat, however, to intellectual property in any industrial sector. Although it is possible to conceive of fascinating debate in respect of intellectual property and the rights and obligations attaching thereto, the plain packs initiative is a health measure to save lives.

There was more. On the very eve of the Government decision last June to publish draft legislation, the chief executive of the US chamber, Thomas Donohue, wrote to Kenny seeking a last-ditch rethink: “We understand that your Cabinet is poised to consider legislation that would impose plain packaging requirements on tobacco products.”

These issues are now destined for the courts. Having held the line thus far in the face of extraordinary pressure, the Government should continue to do so.