10A.2The arguments

Last updated: May 2018     

Suggested citation: Freeman, B., Hagan, K., Barnsley, K., and Winstanley, M. 10A.2 The arguments. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2018. Available from http://www.tobaccoinaustralia.org.au/chapter-10-tobacco-industry/10a-2-the-arguments      

The tobacco industry uses several repetitive phrases in its arguments, submissions, media releases and correspondence with policy-makers, such as ‘nanny state’, ‘adult choice’, ‘freedom of choice’, and ‘unintended consequences’. It commonly refers to the ‘ineffectiveness’ of any proposed reform — claiming it has failed elsewhere — but purports to support ‘sensible reforms’ or ‘effective reforms’. It frequently claims that proposed reforms will result in ‘smuggling’, ‘illicit trade’, or ‘black market’ activity. 

10A.2.1 Freedom of choice 

The term ‘nanny state’ applied to either health groups or governments is used by the tobacco industry and its allies to oppose further regulation on the basis that proposed regulations are overbearing and interfere with personal choice and freedoms.1 In August 2011, an entire Australian political party was launched on the basis of ‘freedom of choice’: The Tobacco and Alcohol Party of Australia. The party ‘objects to nanny state politics’ and was formed to act as a ‘voice for choice’ for consumers. No statistics are publicly available on membership or financial support from donors, but the official Facebook page for the party only had 31 members as of 16 August 2011, and by December 2016 had disappeared from Facebook. It is no longer registered with the Australian Electoral Commission. The Smokers’ Rights Party is registered with the AEC but only stood one candidate at the 2016 federal election and instead recommended that ‘… the Liberal Democrats have the best policy for smokers’. The Liberal Democrats had one elected Senator in 2016 who opposed increases in tobacco excise.

Proponents of government intervention to protect and support health recognise that individual choices do not happen in a vacuum but are heavily influenced by the environment in which they are made.2 The State can help to create an environment that empowers people to make their own choices. This is particularly true in the case of tobacco, where the industry acts aggressively, through persuasive marketing and product development, to recruit new consumers and keep existing ones.3

The tobacco industry seeks to portray itself as a defender of fundamental freedoms. It uses ‘freedom of choice’ arguments to enlist the support of civil libertarians, media interests and the business community in fighting against any regulation of smoking and tobacco promotion.4 ‘Freedom of choice’ arguments shift full responsibility onto the shoulders of individuals to negate the role that the industry plays in fostering unhealthy behaviours. Table 10A.2 outlines the common arguments used by ‘freedom of choice’ advocates. 

Table 10A.2
Freedom of choice arguments and the tobacco control counter arguments2, 4, 5

Freedom of choice arguments

Tobacco control response

Smoking is an adult choice

Most people start smoking when they are children

Quitting smoking is easy, people will quit if they no longer wish to smoke

Smoking is addictive and most smokers regret ever starting and face difficulties when quitting

Tobacco is a legal product

Any product with a similar risk profile developed in recent times would never be allowed on to the market

People are well aware of the health and risks of addiction and choose to smoke anyway

Most smokers underestimate the health risks. They do not fully understand the mechanisms by which tobacco smoke causes disease, the magnitude of the risk relative to other risks, what daily life would be like if they suffered from particular diseases, or the prognosis with treatment. The tobacco industry actively hid the truth about the health risks from the public for many years

To preserve individual liberty, both smokers and non-smokers should be accommodated in public places; banning smoking is unnecessary

Secondhand smoke is harmful to non-smokers and the two most vulnerable groups—children and employees—have no choice about whether or not they are exposed

Education on the harms is the best option and then people can chose for themselves whether or not to smoke

Education alone has very little impact on smoking rates and unless accompanied by regulation could lead to greater disparity, concentrating smoking further in the most disadvantaged populations

10A.2.2 Economic importance

Another common argument perpetuated by the tobacco industry and its allies is that the tobacco business is a vital contributor to the health of economy. Warner has outlined the common economic myths circulated by the industry and has also provided a counter summary of the economic realities.6 See Table 10A.3 for a summary of the tobacco industry economic myths. 

Table 10A.3
Tobacco economic myths versus reality6

Tobacco industry economic myth

Economic reality

Without the cultivation of tobacco, manufacture of tobacco products and distribution and sale of products, a country’s economy will suffer devastating economic consequences. Jobs will be lost, incomes will fall, tax revenues will plummet and trade surpluses will become deficits.

The myth in the tobacco industry’s economic importance argument is that a significant economic presence necessarily implies significant economic dependence. Implicit in the industry’s argument is the notion that a decline in tobacco economic activity will entail a comparable decline in the economy. However, when resources are no longer devoted to a given economic activity, they do not simply disappear into thin air; rather they are redirected to other economic functions.

Specific tobacco control policies will cause severe economic hardship in specific non-tobacco industries—especially smoking bans in hospitality.

Empirical analyses have found this to be patently false and smoking bans may in fact bring economic benefits to the hospitality sector.7

A large tax increase is undesirable because it will reduce government revenues by decreasing legal cigarette sales. This will result from decreased smoking and increased smuggling of lower priced cigarettes from neighbouring countries.

While smokers are price sensitive, they are not sensitive to the degree suggested by this argument. For all politically feasible tax increases, revenue increases would be expected in nearly every country in the world, at least for some period of years. Smuggling claims are greatly exaggerated by the industry8. In any event, smuggling can be successfully combated through better and more complete record keeping, the use of prominent tax stamps, increased penalties for violation of the law, vigorous enforcement of the law, and the banning of in-transit trade.

Even if a tax increase raised government revenues and decreased smoking, it is fundamentally unfair because the burden would fall disproportionately on the poor.

A given tobacco tax will typically be distributed regressively. A tax increase, however, may not be regressive. This is because the poor are typically considerably more responsive to price changes than are the affluent. Legislators can reduce concerns about inequity by dedicating some portion of the revenues from the increased tax to assist low income smokers to quit.

One of the most important economic considerations in tobacco control is that, ‘tobacco inflicts a greater harm among disadvantaged groups’.9 Smoking is both a contributor to and a consequence of poverty and disadvantage. Policies and interventions focusing on smoking prevention and cessation among the poor are an important component of national and international tobacco control.9 The imbalance between the tobacco industry’s economic strength and the typically low political power of public health authorities in low and middle income countries emphasises that focusing on the most disadvantaged must be a global effort.10

10A.2.3 Ineffectiveness of policy measures 

Lack of evidence is another argument frequently used by the tobacco industry to dispute the likely effectiveness of a particular policy measure. For example, an industry website encouraging retailers to oppose regulation of the tobacco retail environment in the US claims that such regulation would be ineffective in reducing youth tobacco use because most youth obtain tobacco from social sources. A critique of the website cites evidence that decreasing the availability and increasing the price of tobacco does reduce youth tobacco use, and can also reduce cues for adult consumers to buy tobacco.11

The tobacco industry also claimed there was insufficient evidence to support plain packaging of tobacco products, suggesting that implementation of the policy was premature and risky.12 This was despite a large and robust evidence base that plain packaging reduced the appeal of smoking, particularly to young people; strengthened the effectiveness of graphic health warnings; and reduced false beliefs about the health harms of tobacco—see Chapter, Section 11.10.4.

A variation on the industry argument that a policy is ineffective is that it is unnecessary. For example, in opposing price promotions on tobacco products, the industry has claimed that this is not needed to prevent underage tobacco use because laws already ban the sale of tobacco products to minors. This ignores evidence that youth access laws are not uniformly enforced.13  

10A.2.4 Unintended consequences

The tobacco industry has suggested that a multitude of unintended consequences will flow from various policy measures that it opposes. 

In opposing point-of-sale display bans for retailers, tobacco industry and retail groups have predicted far-reaching consequences including a very high cost of implementation borne by retailers; a doubling of serving times leading to lost business; and substantial revenue loss for small retailers causing widespread shop closures—see Chapter 11, Section

Similar arguments were used to oppose plain packaging of tobacco products. This included the claim that plain packs would make it difficult and time-consuming for retailers in small convenience stores to serve customers, resulting in errors and delays that would cause customers to purchase tobacco at supermarkets. Australian plain packaging law requires that the brand name is large enough to be seen by retailers, and a simulation study has shown that plain packaging actually reduced transaction time and errors in pack selection—see Chapter 11,

The tobacco industry has claimed that both point-of-sale display bans and plain packaging encourage price competition and foster illicit trade – see Chapter 11 Sections and 11.10.6. This argument is also commonly used to oppose increased taxes on tobacco products,13 despite evidence that increases in taxes on cigarettes are the single most effective way to reduce death and disease caused by smoking.14 There is extensive historical evidence of transnational tobacco companies’ complicity in facilitating the smuggling of their own cigarettes, including a report in the Guardian that British American Tobacco had “condoned tax evasion and exploited the smuggling of billions of cigarettes in a global effort to boost sales and lure generations of new smokers”.15  

A review of literature concerning illicit trade in tobacco products conducted by the International Agency for Research on Cancer14 found that illicit trade tended to be more common in countries with high levels of international trade, lax customs surveillance and where political instability facilitates corruption among government officials and reduces the probability of detection—see Chapter 13, Section 13.7.2.

An extension of unintended consequences arguments used by industry to oppose tobacco control measures is the ‘slippery slope’ argument, which suggests that a particular policy would set a troubling precedent that would then be applied to other products. This argument was used to oppose plain packaging in New Zealand, where a British American Tobacco advertisement featured an image of a customer facing a liquor store fridge full of beer bottles with plain wide labels, and displayed the text ‘I don’t mind if alcohol is next’.12  

The slippery slope argument was used to argue against warning labels on tobacco products as far back as the 1970s when the chairman of Rothmans of Pall Mall (Australia) stated: “The precedent is one which could easily come to affect other industries. For instance, a number of medical scientists claim that butter and milk are dangerous to the health of some people. It is recognised that drinking too much liquor or reckless driving are hazards to life... can we expect all these products to carry a ‘danger’ label ...?”16

10A.2.5 Advocacy for weak policies and programs

Youth smoking prevention programs have often been promoted by tobacco companies as an alternative to other, more effective policies. An analysis of tobacco industry documents has shown that the purpose of such programs is not to reduce youth smoking, but to meet other objectives including preserving the industry’s access to youths. Industry programs portray smoking as an adult choice and fail to discuss the health dangers of smoking. There is no evidence that these programs decrease smoking among youths, but they can serve the industry’s political needs by preventing effective tobacco control legislation and creating allies within policymaking and regulatory bodies.17

An approach used by the tobacco industry in the past has been to suggest voluntary self-regulation when legislation appears unavoidable. Industry agreements to regulate tobacco advertising failed in countries around the world, according to one observer, “for the simple reason that they were never intended to succeed”. Such agreements were worthless because their wording was loosely phrased; they failed to curb some of the industry’s worst excesses; there were no penalties for breaches; and the agreements were not widely publicised and therefore attracted few complaints.18  

10A.2.6 Illegality of tobacco control measures

The tobacco industry has initiated litigation against governments to obstruct the implementation of evidence-based, effective tobacco control measures by claiming such measures are unlawful – see Chapter, Section 16.5.

Claims that plain packaging of tobacco breached tobacco companies’ intellectual property rights were made to oppose the policy in various countries. In New Zealand, a British American Tobacco advertisement depicted a sign with the slogan “If I create it, I should own it”. A critique of the advertisement describes this argument as a “straw man fallacy” since trademarks allow owners to prevent others from using their intellectual property, and plain packaging does not remove this right. Instead, plain packaging imposes some limits on how tobacco companies may use their intellectual property. Governments can and do restrict rights to possess and use dangerous items.12

In Australia, Tim Wilson (then working at the Institute of Public Affairs) received widespread media coverage for his views that plain packaging legislation was equivalent to acquiring the intellectual property of tobacco companies and hence contravened Section 51 (xxxi) of the Australian Constitution. On 15 August 2012 the High Court of Australia indicated in its brief 'pronouncement of orders' that the legislation was not contrary to the Constitution – see Section Chapter 11,

International trade agreements have also been used by the tobacco industry to mount legal challenges to tobacco control policies, particularly plain packaging. Three sets of challenges were brought against the plain packaging legislation: a constitutional challenge in the High Court of Australia brought by British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris; an investment challenge by Philip Morris Asia under the Hong Kong – Australia bilateral investment treaty, and a set of WTO disputes brought by Ukraine, Honduras, the Dominican Republic, Cuba and Indonesia.19

Tobacco companies and retailers have also attempted to overturn laws banning point-of-sale displays of tobacco products in various countries, including mounting legal challenges claiming that such bans breach trade agreements, and Constitutional protections of freedom of expression and freedom of speech – see Chapter 11, Section 



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