ASH staff are available for interview for comment on how and why the Government is still dithering over Regulations on standardised cigarette packs
Contacts: ASH office 020 7404 0242
Deborah Arnott 07976 935987
Ian Willmore 07887 641344
ASH has an ISDN line _________________________________________________________________________
PLEASE NOTE: Standardised packs are NOT plain white packs
They carry graphic and text health warnings as above
Print standard images are available from ASH
Standardised Packaging Regulations: Will Time Run Out?
Time is running out for Regulations on the standardised “plain” packaging for cigarettes to be put into law before the next General Election. This briefing gives the key deadlines the Government must meet if the Regulations are to be voted on by Parliament. If the Regulations are allowed to fall through lack of time, this will be the third u-turn on the policy performed by the Prime Minister and Health Secretary.
The Government first backed standardised packaging, then announced it had decided not to introduce it, then gave in to cross-Party pressure in Parliament and introduced the power to make Regulations under Section 94 of the Children and Families Act 2014.
This Section was passed overwhelmingly in both the House of Lords (nem con) and House of Commons (only 24 MPs voted against), following a strong cross-Party campaign in support of the policy. But at least some Ministers and backbench Conservative MPs are hoping that delays before the Regulations are laid in Parliament may mean that they run out of time for a vote before the last business day in Parliament before the election (currently this is due to be 26th March).
On Tuesday 17th December, the Government announced that it had laid Regulations in Parliament on smoking in cars with children present. 1 ASH believes that this very welcome step must not be used as cover for allowing the Regulations on standardised packaging to slip.
The Regulations have been drafted, consulted on in the UK and notified to the European Union. The EU notification process began on 29th August 2014 and ends on 2nd March 2015. 2 After that date Parliament can vote on the Regulations without further revision. On Thursday 16th December, Jane Ellison MP, the Public Health Minister, gave the following written Parliamentary Answer. “The Government has not yet made a final decision on whether to introduce standardised packaging of tobacco products. The Government continues to consider carefully all issues relevant to the introduction of standardised packaging of tobacco products and a decision will be taken in due course. The United Kingdom notified the draft regulations under the EU Technical Standards Directive (Directive 98/34/EC). Pursuant to this Directive, the regulations cannot be made until after the notification ‘standstill’ period has ended on 2 March 2015. If the Government does decide to proceed with standardised packaging, a decision will then be made as to the appropriate Parliamentary timetable for the proposed regulations.” 3(Our underlining)
As stated in the Parliamentary answer, standardised packaging Regulations cannot be “made” (i.e. passed into law) before the end of the EU notification period. But there are a series of preliminary steps that the Government MUST take before 2nd March if the Regulations are not to run of time. The tobacco industry and its remaining handful of Parliamentary supporters are hoping to delay these steps, to prevent a vote in this Parliament. The Prime Minister and Health Secretary appear to be dithering about whether to ensure a vote or allow the Regulations to run out of time.
The key steps are:
Consideration of the Impact Assessment on the Regulations, by the Regulatory Policy Committee. 4 The Committee expects to report to the Department of Health by Wednesday 24th December
Parliamentary recess from 18th December to 5th January (Commons)
Cabinet decision on Regulations through Home Affairs Cabinet Committee, chaired by Deputy Prime Minister (Nick Clegg MP). The write round for Cabinet clearance via correspondence must start by Wednesday 14th January, as the process lasts at least six working days.5
Home Affairs Cabinet Committee decision, by Wednesday 21st January
Regulations MUST be laid in Parliament by Friday 23rd January
Parliament’s Joint Committee on Statutory Instruments must receive Regulations by Monday 26th January, for consideration on Wednesday 4th February
Regulations must be considered by the Secondary Legislation Scrutiny Committee (SLSC), which meets on a Tuesday. This usually happens two to three weeks after Regulations are laid, so most likely on Tuesday 10th February
Parliamentary recess from 12th February to 23rd February
Latest date for SLSC to publish its report: Thursday 26th February
Monday 2nd March: end of EU notification period
Tuesday 3rd March: first date for Parliamentary vote
In November 2010, the UK Government announced it would consider introducing plain packaging for cigarettes and other tobacco products.7 The Government’s subsequent Tobacco Control Plan for England (March 2011) committed to: “consult on options to reduce the promotional impact of tobacco packaging, including plain packaging, before the end of 2011” 8
A public consultation on plain packaging began on 16 April 2012 and ended on 10 August 2012.9
First u-turn: On Thursday 2nd May 2013, the Sun newspaper reported that: “David Cameron has scrapped plans to force all cigarettes to be sold in plain packs, The Sun can reveal. Health ministers had been weighing up the move for a year. Campaigners had insisted making packets bland would put smokers off — and stop kids from starting the habit… Mr Cameron has now ordered the proposed law to be pulled from next week’s Queen’s Speech. A Whitehall source said: “Plain packaging may or may not be a good idea, but it’s nothing to do with the Government’s key purpose. “The PM is determined to strip down everything we do so we can concentrate all our efforts on voters’ essentials. That means growth, immigration and welfare reform.”
The Prime Minister faced strong media criticism over the role of the Conservative Party campaign advisor Lynton Crosby. The Party has hired Mr Crosby through his lobbying firm Crosby Textor Fulbrook, which has represented tobacco industry clients since the 1980s. Mr Crosby signed a multi-million deal with PMI to lobby against standardised packaging only days before he began work for the Conservative Party. 10 In Australia, Mark Textor, co-founder of the company with Mr Crosby, was an adviser to the industry in its campaign against standardised packaging. Reacting to the news of Mr Crosby’s tobacco industry links, Conservative MP Sarah Wollaston, now chair of the Health Select Committee, commented: “It is a concern, a great concern, that somebody so close to the heart of Government has such links with lobbying organisations. It makes the point on why we need transparency on lobbying in the UK.” 11
Second u-turn: In July 2013, a cross Party group of peers, with strong support in both Houses of Parliament, tabled an amendment to the Children and Families Bill to give the Government powers to make Regulations on standardised packaging. Facing inevitable defeat in the Lords, on 28th November 2013 the Government announced that it would table its own amendment to the Bill (now Section 94 of the Children and Families Act 2014) and that it had appointed the eminent paediatrician Sir Cyril Chantler to conduct an independent review into the public health impact of standardised packaging. 12 This amendment was passed overwhelmingly in both the House of Lords (nem con) and House of Commons (only 24 MPs voted against).
The Chantler Review reported on 3rd April 2014. Sir Cyril concluded that: “…there is enough evidence to say that standardised packaging is very likely to contribute to a modest but important reduction in smoking… Given the dangers of smoking, the suffering that it causes, the highly addictive nature of nicotine, the fact that most smokers become addicted when they are children or young adults and the overall cost to society, the importance of such a reduction should not be underestimated.” 13 Jane Ellison MP, Minister for Public Health said that the report found standardised packaging was "very likely to have a positive impact" on public health. She went on to say: “In the light of the report and the responses to the previous consultation in 2012, I am minded to proceed with introducing regulations to provide for standardised packaging” and that she wished to “proceed as swiftly as possible”. She also reported that the Government’s Chief Medical Officer, Dame Sally Davies, had written to her supporting the conclusion of the Chantler review and supporting the introduction of standardised packaging.
The consultation on the draft regulations ran from 26 June to 7th August. On the 29th August the Government notified Europe – this is a standstill process which ends after 6 months on 2nd March 2015.
Third u-turn? The Government is now facing strong lobbying from the tobacco industry and a handful of right-wing Conservative backbenchers to delay the Regulations until it is too late to pass them in this Parliament.
Key backbenchers campaigning against the Regulations include
Nick du Bois MP. On 3rd December 2013, a report titled "The Business of Small Enterprise" was published by the Free Enterprise Group, a group of MPs including Mr du Bois, with connections to the Institute for Economic Affairs, which has received tobacco industry funding. The report included a recommendation for the Government to "drop proposals for plain packaging tobacco products." Mr du Bois has also written to Conservative MPs claiming that standardised packaging “is not something a Conservative Government should be trying to only weeks before the General Election. Instead we need to be concentrating on what matters to people – schools, hospitals and creating the conditions for economic growth and prosperity”. 14
Philip Davies MP, who has tabled numerous PQs on this issue, spoke against the amendment to the Children and Families Bill and who, according to the trade magazine Retail Express, advised retailers to “tell their MP they would not vote for anyone supporting the proposals” and was quoted as saying that “It’s a complete triumph for the nanny state and it’s completely ridiculous. It won’t make any difference at all to smoking levels. The minister is a complete prisoner of ASH and does whatever it says she should do. We’ve already got a display ban so what need is there for plain packaging as well? Whoever proposed plain packaging has obviously never worked on a cigarette kiosk before.”15
Also strongly opposed to standardised packaging is the Exchequer Secretary to the Treasury Priti Patel MP, who before becoming an MP was paid by a lobbying firm to work on behalf of the tobacco industry. 16 Her repeated letters as a backbench MP to the Department of Health on the issue have been released after a Freedom of Information request. 17
The Prime Minister is reportedly nervous of any policies that might annoy UKIP supporters, although there is no evidence that standardised packaging is an issue that is salient for a significant number of UKIP voters. UKIP is the only significant political party in Britain opposed to all tobacco control policy and legislation (including the 2006 ending of smoking in all workplaces and enclosed public places). 18 Internal documents from Philip Morris International show that UKIP MEPs were regarded by the company as strong supporters of all tobacco industry lobbying objectives during the passing of the revised European Union Tobacco Products Directive. 19
Standardised packaging is backed by the Smokefree Action Coalition, an alliance of over 250 organisations including medical Royal Colleges and other medical organisations, health and children’s charities, the Chartered Institute of Environmental Health, the Trading Standards Institute and others. 20 It is also popular with the public. A poll on the issue by YouGov, conducted for ASH in March 2014, found that overall 64% of adults in Great Britain were in favour of standardised packaging. There was majority support across age groups, genders and social classes. 21
Tobacco Industry: Not Giving Up Yet
The tobacco industry has already spent millions of pounds trying to block standardising packaging. It is now gearing up for a last ditch effort to oppose the Regulations.
The tobacco industry in Australia has reported an increase in tobacco sales from 21.015bn sticks in 2012 to 21.074bn in 2013, and the industry and its front groups in the UK claimed that this showed standardised packaging was not working. In fact, adjusted for population, tobacco sales per person in Australia have fallen, from 920.4 in 2012 to 906.9 in 2013. 23
Responding to Australian media coverage of the tobacco industry’s claims, the Australian Government’s Department of Health has released figures showing that total consumption of tobacco and cigarettes in Australia in the March quarter 2014 was the lowest ever recorded, as measured by estimated expenditure on tobacco products
$5.135 billion in September 1959;
$3.508 billion in December 2012 (when standardised packaging was introduced); and
$3.405 billion in March 2014.
Figures from the Australian Treasury show that tobacco clearances (including excise and customs duty) fell by 3.4% in 2013 relative to 2012 when tobacco plain packaging was introduced. Clearances are an indicator of tobacco volumes in the Australian market.
The Australian Department of Health has also found a significant increase in the number of calls to the smoking cessation helpline, Quitline, following the introduction of standardised packaging. The research showed a 78% increase in the number of calls to the Quitline associated with the introduction of the policy. This peak occurred four weeks after the initial appearance of plain packaging. This research also found the increase in calls was sustained and was not attributable to anti-tobacco advertising activity, cigarette price increases, nor other identifiable causes.
On 25 November 2014, the Australian Institute of Health and Welfare’s National Drug Strategy Household Survey detailed report for 2013/14 was released showing that there has been a significant decrease in daily smokers aged 14 years or older in Australia, falling from 16.6% in 2007 to 12.8% in 2013.
The tobacco industry has claimed that standardised packaging will lead to an increase in illicit trade. The Chantler Review concluded that there was no good evidence for this claim. All the key security features on existing packs of cigarettes would also be present on standardised packs (including coded numbering and covert anti-counterfeit marks).24
Andrew Leggett, Deputy Director for Tobacco and Alcohol Strategy at HM Revenue and Customs has said about standardised packaging that “We’re very doubtful that it would have a material effect[on counterfeiting and the illicit trade in tobacco]”. 25
On 11th June 2014, the House of Commons Home Affairs Select Committee published a report on the illicit tobacco trade.26 The Committee reported that: “We believe that the decision on standardised packaging should be driven by health reasons and the imperative need to reduce the numbers of young people who start smoking. We note the statement of Sir Cyril Chantler to the effect that he was not convinced that standardised packaging would bring about an increase in the illicit market; even if this were the case, we believe that the proper response would be a more vigorous effort on enforcement rather than any lessening in the Government's drive towards introducing standardised packaging.” (paragraph 44)
1 Regulations on smoking in cars with children present UK Government website, Department of Health announcement 17th December 2014
2 European Commission. Notification Detail. Standardised packaging of tobacco products. 2014/427/UK. Date received 29th August 2013.
3 House of Commons Written Question 218414: Tobacco Packaging. Answered 16th December 2014
4 Regulatory Policy Committee
5 Cabinet Office. Guide to Cabinet and Cabinet Clearance. P.12 Last updated 2 December 2014.
6 Tobacco Tactics website. Plain packaging in the UK gives an excellent overview
7 DH. Healthy Lives, Healthy People: Our strategy for public health in England. November 2010
8 DH. Healthy Lives, Healthy People: A Tobacco Control Plan for England. March 2011.
9 DH consultation outcome. Consultation on standardised packaging of tobacco products.
10 Doward, J. David Cameron urged to probe claim that aide had £6m tobacco deal. Observer. July 20th 2013.
11 Lyons, J. Lynton Crosby: David Cameron under fire from all sides over aide's links to tobacco and alcohol industries. Daily Mirror. 8th May 2013.
12 Announcement of the review of standardised packaging UK Government website. 28th November 2013
13 Standardised packaging of tobacco: report of the independent review undertaken by Sir Cyril Chantler 3rd April 2014
18 Nigel Farage Says Smoking Ban 'Silly And Illiberal' Huffington Post. 30th April 2014
19 Tobacco Tactics website PMI’s Lobbying Campaign to Undermine the TPD Accessed 18th December 214
20Smokefree Action Coalition
21The poll total sample size was 12,269 adults. Fieldwork was undertaken by YouGov between 5th and 14th March 2014. The survey was carried out online. The figures have been weighted and are representative of all GB adults (aged 18+). Respondents were shown what a standard pack could look like, including larger health warnings as in Australia.
22 Tobacco key facts and figures Australian Government Department of Health website. Accessed 18th December 2014
23 Is smoking increasing in Australia? Guardian Online Datablog. Published 6th June 2014
24 Hansard: backbench business debate. 7 November 2013 column 477
25Oral evidence to the House of Lords European Union Sub Committee (Home Affairs) on 24th July 2013.
26House of Commons Home Affairs Select Committee. First Report on Tobacco Smuggling Published 11th June 2014