Next Steps: Where Do We Go From Here. Ratify Implement Enforce

Transcription

1 Next Steps: Where Do We Go From Here. Ratify Implement Enforce

2 Priority Interventions and Legislative Options Should be Based on Sound Science

3 Why is it important to base arguments on science? We are asking for a change in policy It is effective with policy makers The tobacco industry will argue its own science and The data is on our side

4 OBJECTIVE: Raise Tobacco Taxes In Order to Lower Consumption

5 Supporting Message #1 Higher Price = Lower Consumption + Fewer Kids Starting

6 CB1 Studies in the United States show: A 10% increase in the retail price of cigarettes = 3-5% decline in consumption + 7% decline among children + Significant reduction in youth initiation

7 Slide 6 CB1 Chris Bostic,

8 In medium and low-income countries, price elasticities are even greater. One study estimated that a 10% increase in price worldwide would save 10 million lives. CB2

9 Slide 7 CB2 Chris Bostic,

10 Supporting Message # 2 Higher Excise Tax = More Revenue

11 As Cigarette Tax Rises, Revenue Increases Tax per pack, tax revenues, Norway, Cigarette tax revenue in local currency (millions) Tax per pack in local currency Cigarette tax revenues Tax per pack Source: World Bank 1999

12 CB4 Real cigarette tax rate and real cigarette tax revenue in South Africa Real cigarette tax rate per pack i constant 1990 currency Real cigarette stax revenue in millions of constant 1990 currency n real cigarette excise rate real cigarette excise revenue Year 1600

13 Slide 10 CB4 Cigarette Tax Rises Revenue Increases Tax per pack and cigarette tax revenues in Norway, Chris Bostic,

14 Supporting Message # 3 Higher Excise Tax More Smuggling

15 Cigarette Smuggling

16 Tobacco smuggling tends to rise in line with the degree of corruption Smuggling as a function of transparency index Smuggling as share of cons um ption (%) Cambodia Pakistan y = x R 2 = Brazil Aus tria Indonesia Sweden Transparency index for country Source: Merriman et al., 2000

17 Strong and Comprehensive TC Regulation is Possible Despite political constraints & industry tactics, many countries have legislation that is: Stringent Forward-thinking Comprehensive

18 Country TC Success Examples Virtual promotion bans South Africa, Thailand Strong, graphic and very large health messages and labeling requirements Canada (>=50% of front and back) Brazil (100% of front or back)

19 Country Success Examples, cont d. Virtual bans on smoking in public places/workplaces Ireland, Norway Meaningful reporting requirements Canada, State of Mass (US) Comprehensive TC laws covering multiple topics Brazil, Poland

20 Political Constraints and Industry Tactics Made your scientific (& economic & rightsbased) case (Will) have made the best argument for the strongest provisions The tobacco industry and its allies are countering your efforts Bogus scientific/economic arguments Semi-legitimate legal and social arguments Creative evasion tactics against enacted provisions Political realities are taking hold

21 Legal/Social Arguments Examples: Constitutional protection of commercial speech Trade secret protection Tax increases as regressive (i.e., unfairly affect the poor) Individual rights

22 Roadblocks v. Stepping Stones: How to Get What You Want

23 The art of the possible: what can be achieved The art of good negotiations is to know when to fight and when to compromise Never compromise with incomplete information

24 Assure that compromise is a stepping stone to effective legislation and not a roadblock to future enhancement. Live to fight another day

25 Examples of major roadblocks Voluntary Codes - Industry argues that the government can save time and money and still get the same result.

26 Just Say No Thailand

27 Roadblock Drafting with industry Industry has a history of drafting knowledge and a team of lawyers

28 Tobacco Executives Swear To Tell Congress the Truth

29 Examples of Working with the Industry Preemption - a US morality play

30 Ban on all terms such as light, low and mild- tar, nicotine and CO levels per ISO method to be listed on the pack

31

32 More Roadblocks Unenforceable provisions Excessive penalties Sunset provisions Give authority to wrong agency

33 Stepping Stones Incremental measures - define what you can do, don t limit future amendments Chose a less ambitious goal - NY fire safe cigarette (less ignition-prone vs. fire safe)

34 Stepping Stones Reporting obligations to ensure effectiveness or build case for additional measures Surveillance data Industry expenditures Population coverage Partial restrictions on advertising Bill boards, electronic media

35 More Stepping Stones Product regulation Reporting or disclosure of additives or emissions so you can regulate later; rather than tar and nicotine Taxes If its small, at least do it all at once Labeling 30%, battle every time

36 Drafting Guidelines The guidelines are designed to help avoid potential drafting pitfalls applicable under many legal systems. Different drafting rules do apply in different countries and under different legal systems Examples are not intended to be, and are not, comprehensive. A local lawyer should be involved with/review any draft legislation.

37 1. Clearly Identify Persons Charged With A Legal Duty. Unless it is clear who has a duty to comply / ensure compliance, there may be no way to enforce law. Example 1: No person shall smoke in any enclosed public place, workplace, or on any public conveyance. Example 2: Example 2: No person shall smoke in any enclosed public place, workplace, or on any public conveyance. It shall be the duty of every owner/operator and every employer to provide a smoke free environment at the premises or in the conveyance under his or her control. Every owner/operator and every employer shall take reasonable measures to create a smoke-free environment, which shall include

38 2. Provide Appropriate Penalties For All Legal Obligations Narrow and/or inappropriate penalties may deter enforcement and/or encourage non-compliance. Example 1: Any person who smokes in violation of Sec. X, and any owner/occupier or employer who fails to take reasonable measures to prevent or stop smoking in violation of Sec. X, shall be guilty of an offence and shall serve 6 months in jail. Example 2: Example 2: Any person who smokes in violation of Sec. X, and any owner/occupier or employer who fails to take reasonable measures to prevent or stop smoking in violation of Sec. X shall be subject to a fine of AUD $2.

39 2. And Provide Mechanisms to Enforce The Penalties Empower government with rigorous inspection authority Private right of action in the event of government inaction E.g., France, Uganda

40 3. Avoid Confining Detail, Yet Provide Sufficient Detail. Excessive detail can result in regulatory inflexibility. Example 1: Tobacco product packages and advertisements shall display tar and nicotine levels in a clear and conspicuous manner. Example 2: Example 2: The Minister shall have the authority to prescribe in regulations what ingredients, constituents and additives, as defined in Sect. X, shall be required on tobacco product packages. Additionally, the Minister may prescribe the location, size, and all other details related to ingredients, constituents, and additives disclosures.

41 4. Be Careful With The Use Of Conjunctives And Disjunctives. Pay attention to the use of and versus or. Example 1: The advertising ban in the previous section applies to any person who commissions, publishes, and pays for any tobacco advertisement. Example 2: Example 2: The advertising ban in the previous section applies to any person who commissions, publishes, or pays for any tobacco advertisement.

42 5. Provide for Reasonable Exceptions and Exemptions. Provide common sense interpretations of what does/does not constitutes prohibited conduct. E.g.: Individual and incidental display of a personal pack of cigarettes E.g.: Private conversations about tobacco products

43 5. Reasonable Exemptions/Phase-ins Periods, cont d E.g.: Specified time period to end contracts (e.g., sponsorships) E.g.: Exemption of thousands of small retailers from licensure Additional option: Additional option: provide ministerial authority to mitigate against unintended consequences (as is the case in South Africa).

44 6. Be As Careful And Forward- Thinking As Possible In Drafting. Learn from the lessons of others. E.g., light and mild and colors Brazil E.g., tamper proof packaging and labeling Packages with flaps that can cover health messages E.g., Counterfeit tax stamps

45 7. Define Key Terms. Terms can be defined in any way, as long as the definition is clear (but departure from established definitions may create confusion). Define terms precisely and comprehensively, yet clearly. E.g., advertising : should include direct and indirect forms; all media; any indicia of tobacco product, manufacturer, brand; that promotes, makes aware, portrays in positive light, etc. If terms like clear and conspicuous, prominent, adequate etc. are used, the regulations must provide precise measures for them.

46 8. Be Careful With Mandatory Vs. Permissive Language. When making something mandatory, use shall or must. E.g. Employers shall (or must) protect their workers from exposure to tobacco smoke by. When imposing a negative obligation, it is possible to use either shall or may. E.g., No person shall smoke in a public place or work place = No person may smoke in a public place or workplace.

47 8. Mandatory v. Permissive, cont d Should = voluntary E.g., Employers should protect employee from exposure to tobacco smoke smokes means it would be nice if the employer prevented smoking in the workplace but that there would be no legal consequence if s/he did not do so. May or can = it is ok to do the thing, but is neither required nor prohibited E.g., Restaurant owners/operators may designate separate smoking rooms means the owners/operators may but are not required to, designate smoking rooms.

48 9. Avoid Lists Where Possible. Use of lists, even with the phrase including but not limited to,, can limit the law s s application to those items in the list. Example: Public places means all places open to the public, and include, but are not limited to: schools, health care facilities, sporting or entertainment venues, banks, libraries, and shopping centers.

49 10. Avoid Using Intent Language. Intent language is virtually impossible to prove. E.g., No person shall advertise in any manner intended to attract a youth audience or in a magazine intended to reach youth audiences. E.g., "No person shall publish any tobacco advertisement targeted at women.