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Implementation failures in the use of two New Zealand laws to control the tobacco industry: 1989–2005

Implementation failures in the use of two New Zealand laws to control the tobacco industry:... Background: We reviewed the implementation of New Zealand laws in relation to the activities of the tobacco industry and their allies. Material for two brief case studies was obtained from correspondence with official agencies, official information requests, internet searches (tobacco industry documents and official government sites), and interviews with 12 key informants. Results: The first case study identified four occasions over a period of 14 years where New Zealand Government agencies appeared to fail to enforce consumer protection law, although apparent breaches by the tobacco industry and their allies had occurred in relation to statements on the relative safety of secondhand smoke. The second case study examined responses to a legal requirement for the tobacco industry to provide information on tobacco additives. There was failure to enforce the law, and a failure of the political process for at least 13 years to clarify and strengthen the law. Relevant factors in both these cases of 'policy slippage' appear to have been financial and opportunity costs of taking legal action, political difficulties and the fragmented nature of government structures. Conclusion: Considered together, these case studies suggest the need for governments to: (i) make better use of national consumer laws (with proper monitoring and enforcement) in relation to tobacco; and (ii) to strengthen international law and resources around tobacco-related consumer protection. A number of options for achieving these aims are available to governments. law concerns deceptive statements to potential consumers Introduction A number of authors argue that specific attention by gov- and the public, the second, the disclosure of tobacco addi- ernments and advocates to the policy implementation tives. The setting is New Zealand, which has some compo- process is needed in tobacco control, to avoid the risk of nents of a comprehensive tobacco control programme 'policy slippage' [1-3]. Policy slippage is the gap between [4,5]. the intent of policy in legislation or government direc- tives, and the implementation of such policy. This paper Background The New Zealand tobacco control programme has over investigates the way two national laws relevant to the activities of the tobacco industry were implemented. One the last 15 years introduced tobacco promotion controls, Page 1 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 smoking bans in nearly all indoor work and public places, Results a free Quitline cessation service, and access to heavily sub- Context Two aspects of the context for the case studies were: a lack sidised nicotine replacement treatment. There have also been active non-government tobacco control groups since of priority for tobacco control by the dominant party in the early 1980s [5,6]. Although per capita consumption government during 1991–1999 (the conservative has declined over the last decade, until 2004 smoking National Party) [10], and the wish by all governments prevalence has stayed at around 25–26% [[7] p.9]. This during the period covered to be seen as 'business friendly' may be due to high uptake of smoking by youth and the [[11] p.40; [12-14]]. Government officials and ex-officials lack of fiscal incentives to support quitting (ie, there has who were interviewed stated that during the 1990s they been only two tax rises on cigarettes beyond the rate of were given very clear signals that tobacco was not a prior- inflation since 1991 [8]). ity area for the government. These signals in turn resulted in internal Ministry of Health decisions on the allocation The programme operates in the context of the activity in of resources. New Zealand of three major international tobacco compa- nies – British American Tobacco, Philip Morris, and Impe- Secondhand smoke (SHS) is estimated to cause over 300 rial Tobacco. The activities of such companies have been deaths per year in New Zealand [15] making it the most part of the impetus for the recent formation (and ratifica- important environmental health hazard. Accurate knowl- tion by most countries) of the Framework Convention on edge about the extent of SHS harm is important, as it Tobacco Control, the first treaty under the World Health affects smoking behaviour [16,17]. In addition, the Organization's treaty making powers. tobacco industry has demonstrated the importance of obscuring public knowledge of SHS harms by their invest- Methods ment in deception about it [18-22]. In 2000, the Minister Brief case studies were used to review the implementation of Health wrote to the Hospitality Association of New of the two laws. The first case, around the Fair Trading Act Zealand (HANZ), noting that 'It is extremely important to 1986, involved the collection of material from: corre- treat what is said about SHS ... with due caution. ... Con- spondence with official agencies, requests to the New Zea- tinuing statements by the tobacco industry, in particular, land Government (using the Official Information Act that the science is not in on SHS ... have [been] shown to process), the opportunistic receipt of an official memo- be untrue ...' (King A. [Letter to Bruce Robertson of the Hos- randum sent to a Member of Parliament, a search of the pitality Association of New Zealand from the Minister of New Zealand Commerce Commission's website for media Health]. Wellington: 25th October 2000). releases issued from 1994 to September 2002 [9], and a search of the Factiva media website for 'New Zealand Tobacco additives are important because of their role in major newspapers' for the period September 2001 – tobacco product design to increase sales, and because of August 2002, using the phase 'Commerce Commission' their potential role in addiction [23-27]. Public knowledge and the word 'court'. The period covered for the case study about the additives is important to help ensure informed was from 1989 to 2004. consumers [28-30]. The second case, concerning the provision for tobacco Case study 1: The tobacco industry and the Fair Trading Act 1986 additives disclosure in the Smoke-free Environments Act 1990, involved website searches for both tobacco industry The Fair Trading Act states that: and New Zealand Government correspondence. The tobacco industry document websites tobaccodocu- 'No person shall, in trade, engage in conduct that is liable ments.org, Legacy Tobacco Documents Library, and Brit- to mislead the public as to the nature, ... characteristics, ish American Tobacco Documents Archive were searched [or] suitability for a purpose, of goods' [[31] s.10]. for material on the disclosure of tobacco additives in New Zealand, using the searchwords 'zealand' 'additives' The Commerce Commission has stated that its job is to 'ingredients' 'Wellington' and 'Department/Ministry of enforce 'legislation that ... prohibits misleading and Health' and then by following names revealed by the deceptive conduct by traders' [32]. The Commission has search. The period covered was from 1990 to 2004. suggested that, on the basis of court decisions, businesses must meet a fairly high standard to comply with the Fair For both cases, material from interviews with four govern- Trading Act. The standard of business behaviour expected ment officials and ex-officials, two academics, four politi- under the Act includes protecting: 'the gullible, [those] of cians and two lawyers was used to assess the validity of the less than average intelligence or poorly educated.' Gener- documentary evidence, to provide leads for inquiries, and ally, the question of intent is not relevant, 'rather the issue to provide policy and political context. is whether their actions did or could deceive or mislead'. Page 2 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The Commission has suggested that the Act also applied ' A seven year study by the World Health Organisation to 'conduct likely to mislead or deceive', (emphasis added) found no links between passive smoking and health risks' [33]. [39] and Over the period 1989–2003, we found four episodes (in '... science has not established a link between passive 1989, 2000, 2001 and 2002) where the Government had smoking and cancer' [40]. an opportunity to apply this law to the statements of tobacco companies and their allies about SHS. In 1989, The statements by BAT and HANZ about SHS were for- the advocacy group ASH NZ wrote to the Commerce warded because they appeared to meet four criteria that Commission about advertisements by the Tobacco Insti- could help the Commission make a legal case – a pattern tute of New Zealand, which had stated that 'science has of activity, clear deception, sufficiently recent date, and not established that other people's cigarette smoking large potential consequences to public health. The state- causes diseases in non-smokers'. The Commission replied ments appeared to deny or obscure the harm caused by that it was 'extremely difficult to accurately gauge the SHS, in a manner that could be described as misleading effect of the Institute's advertising campaign and therefore about tobacco products sold, or the safety of services pro- whether the campaign has or is likely to have been mis- vided by HANZ members. leading and deceptive.' The Commission also noted that 'the cost of any legal action would be considerable' [34]. The Commission replied that although the material 'appears to be a breach of the Fair Trading Act, we will not In 2000, a new Minister of Consumer Affairs asked her be investigating it in more depth at this stage' and that the officials about the use of the Fair Trading Act for legal Commission targeted 'issues and trading practices that action against the tobacco industry. She then reported that have the greatest potential detriment to consumers' (Gib- such 'action may not be possible under this Act' [35]. A son D. [Letter to George Thomson from the Commerce Com- request to the Ministry of Consumer Affairs under the mission (FTWN 49513)]. Wellington: Commerce Official Information Act for the advice given to the Minis- Commission; August 30, 2001). A spokesperson was ter was declined (Manch K. [Letter from Ministry of Con- reported as saying that the Commission 'had decided to sumer Affairs to George Thomson]. Wellington: August 23, refer the complaint to the Ministry of Health and would 2001). take no further action'. This was because 'it is dealt with better under their legislation and they have the staff with In July 2001, we sent information to the Commerce Com- the knowledge and expertise' [41]. mission about the public statements of British American Tobacco (BAT) New Zealand. The material included com- In reply to the information about statements about SHS ments from 1998 and 1999 by BAT officials about the that appeared to contravene the Fair Trading Act, the Min- IARC (International Agency for Research on Cancer) SHS istry of Health pointed out that the: study, that: 'Public Health Directorate lacks the staff and financial 'The study confirms a view that the industry had long held resources that would be needed to investigate the exam- that while smoke in the air may annoy some non-smok- ples you presented in detail' but 'in general the Ministry ers, passive smoke is not a lung cancer risk' [36]. supports the interpretations you present' (ie, that BAT and HANZ appeared to have contravened the Act's sections 9 and more generally that: and 13) 'The overwhelming majority of [independent] studies (Matheson D. Letter to George Thomson from the Deputy found no overall meaningful increase in risk for those Director General, Public Health Directorate (PP70-15-2). married to a smoker' [37]. Wellington: New Zealand Ministry of Health; July 30, 2002). These statements misrepresented the IARC findings [38]. Statements to the media in 2001 by HANZ were also given However, because the Ministry considered that the state- to the Commission, on the basis that the statements could ments 'were not made in a trading context' and because of be misleading and deceptive about the dangers of using resource reasons, the Ministry decided that 'it would not HANZ members' premises where there was SHS. The state- be profitable' to pursue the matter under the Fair Trading ments included: Act (ibid). In May 2002, a politician from a minor party outside the government provided information to the Commerce Page 3 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 Commission about deceptive practices by the industry. '... we don't believe that [SHS] has been shown to cause The information included two reported statements from chronic disease, such as lung cancer, cardiovascular dis- the media during 2001. One, by a BAT official was that 'we ease or chronic obstructive pulmonary disease, in adult have gone through the international evidence on second- non-smokers. ....' [52]. hand smoke and there is a pattern of research [indicating] that it is not a serious health issue. Nothing is risk-free in Case study 2: The non-disclosure of tobacco additives by brand this world. There is a small risk to young people and babies ...' [41]. The Director of the Commission's Fair In August 1990, the New Zealand Smoke-free Environments Trading section wrote of this statement 'reasonable mem- (SFE) Act was passed by Parliament. Section 35 of the Act bers of the public are unlikely to be misled into believing required tobacco companies to submit an annual return that this statement suggests that the death of adults is not showing the weight of all additives used in each tobacco a serious health risk, or that it denies that adults die from product. In early October 1990 the SFE Regulations were second hand smoke .... The statement represents an opin- passed by an Order in Council, just before an election ion and is unlikely to breach the Act' (Battell D. Memoran- changed the government. These regulations, amongst dum to Fair Trading Committee: Tobacco companies – referral other things, set out the way that Section 35 was to be car- from Sue Kedgley MP. Wellington: Commerce Commis- ried out. The regulation stipulated that companies give the sion; September 11, 2002). weight of every additive for every product and then the quantity of 'each brand and each brand variant sold'. Thus, The second reported statement sent to the Commission while 'product' could be considered to be a cigarette brand was that the science on SHS showed that 'if there was a or brand variant, the regulations could also give the risk, and there may be a risk, it's not a large one'. Com- impression that a 'product' was a generic type, such as cig- menting on this in September 2002, the Director of the arettes, cigars, or roll-your-own tobacco. Commission's Fair Trading section wrote that it was 'more an expression of opinion than fact. .... The people buying From then to the present, tobacco companies operating in cigarettes are unlikely to be misled by comments on the New Zealand have endeavoured to continue to both keep harm or otherwise of passive smoking' [42]. the additives used in New Zealand secret from the public, and to not disclose to government the additives for partic- To put the actions and statements of the Commission into ular brands. In late 1990, a Philip Morris official in Aus- context, we examined the legal actions it did initiate under tralia reported to the USA on some tactics he might use to the Fair Trading Act during the year to August 2002. In that get the additives disclosure law changed, and concluded time the Commission prepared or undertook at least 'short of sinking N.Z. if you have any other ideas, could twenty legal actions under the Act about deceptive state- you let me know' [53]. ments. The issues were all relatively minor in terms of health risks to consumers, and included the claim of a fish In 1991 the Government decided to insist on the disclo- and chip shop that it used cholesterol-free oil, eg. [43-46]. sure of additives by 'each brand and brand variants' The Commission took at least eight other cases to court on [54,55]. Negotiations dragged on, and by December competition matters, including two Court of Appeal and 1992, the Department of Health (DoH) was accepting a one Privy Council case [47-49]. The Commission also 'temporary' compromise position where they accepted decided that it was justified in investing considerable information only for all brands, rather than for particular resources in the control of the competitive aspects of the brands [56]. This position was valued by the tobacco com- tobacco industry, by lengthily contesting a tobacco com- panies, and Philip Morris wrote to the Tobacco Institute of pany merger [50]. New Zealand in 1993 to emphasise that they thought the DoH: Over the period 1994–2004, the most serious breach of the Fair Trading Act (in terms of mortality) where the 'under the current regulations, could impose brand-by- Commission has responded, was on children's cots. These brand disclosure .... The DoH could become irritated with were implicated in the deaths of 22 children between the industry and simply impose a brand-by-brand disclo- 1985 and 1994 [51] (ie, around two deaths per year). In sure' [57]. contrast, the total national death toll from SHS in year 2000 alone was estimated at 325 [15]. A 1993 note by Tony Andrade of the tobacco industry law firm of Shook, Hardy & Bacon also stated that the: In September 2005, the BAT New Zealand website contin- ued to cast doubt on the conclusions of the IARC SHS 'ingredients law in New Zealand would require complete study, and stated: disclosure of individual ingredients and amounts by brand if strictly enforced' [58]. Page 4 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 A Rothmans (NZ) official warned a RJ Reynolds official each separate brands and brand variant, 'as the regula- that for the 1994 return: tions may require'. In September 2005, these regulations were apparently being developed but their contents were 'there is a real possibility that the Department of Health unknown. will insist on a return in the correct form, that is, identify- ing the additives actually present rather than listing over Discussion Main findings and interpretation 2000 possible additives. They may decide ... that we will be prosecuted if we file an incorrect return again. We will The two cases illustrate the sub-optimal implementation dispute this, but we would much prefer that it does not of existing laws that could have aided the control of a come to this. ... We have argued with them for over three product that is a major cause of premature death and years and their patience together with industry credibility health inequalities in New Zealand. Possible reasons for must be close to breaking point' [59]. this level of implementation of legislation relevant to tobacco companies include: the financial and opportunity The government had three options in relation to imple- costs of implementation, the political difficulties involved menting the SFE regulations: to compromise in some way; in confronting an aggressive industry, and the fragmented to insist on information by each brand (and prosecute if nature of government. We considered that the Ministry of necessary); or to make clearer regulations that put the Health's statement that the statements on SHS 'were not industry's obligations beyond dispute. There was little will made in a trading context' as untenable, as the context for by the political party in power until 1996 to confront the the sale of tobacco include the health claims made for the tobacco industry [10] and the compromise position was products. continued. The two cases illustrate the importance of the costs of In March 1994, the New South Wales Cancer Council in implementation when governments are faced with very Australia released the list of additives given to the New large transnational companies, known to be tenacious lit- Zealand Government by the tobacco companies. This list igators willing to use every aspect of the legal process. had been obtained by a request by ASH New Zealand, They also illustrate the need for substantial investment in under the New Zealand Official Information Act [60]. an aggressive comprehensive tobacco control programme, This release, along with the ongoing risk of further New to ensure that progress is made in spite of difficulties or Zealand Government action on disclosures, appears to hesitancies in the enforcement of relevant laws. have resulted in at least two international level meetings of the tobacco companies involved [61,62]. When the Fair Trading Act issues arose, the relevant gov- ernment agencies appeared to first think about their budg- After the election in late 1996, the political balance was ets and staff resources. In 1989 and 2001, the costs of legal slightly altered. The new Associate Minister with responsi- proceedings and the staff resources needed were factors bility for tobacco control, Neil Kirton, was a member of explicitly mentioned by the Commerce Commission. In the new minority party (New Zealand First) in the ruling contrast, the Commission prosecuted a number of other coalition. After the four-year period of the compromise (often small) businesses for minor matters, and were will- which did not insist on disclosure by brand, in August ing to take tobacco and other large companies to court on 1997 the Ministry of Health wrote to the tobacco compa- competition matters. This may indicate a greater focus nies, requiring information on additives for each brand within the Commission on market regulation compared [63]. However, that month Kirton was dismissed as Asso- to the health of consumers. ciate Minister, and successive Ministers responsible for tobacco control did not pursue the matter as a priority. The Ministry of Health stated explicitly that it lacked 'the staff and financial resources that would be needed to An official described the problem from the bureaucracy's investigate the examples you presented in detail' (Mathe- point of view: son D. Letter to George Thomson from the Deputy Director General, Public Health Directorate (PP70-15-2). Wellington: 'It's basically an issue of resourcing. ... Any regulation of New Zealand Ministry of Health; July 30, 2002) let alone the tobacco industry is very confrontational. It requires a to prosecute tobacco companies on this issue. With the lot of servicing in terms of the kind of official information additives issue, officials knew that any attempt to enforce that is requested and the kind of expectations around con- the law would take scarce staff time and budgets just for sultation.' consultation and Official Information Act request processing, even before any legal expenses. Finally in 2003, the new amendments to the Smoke-free Environments Act required the testing and disclosure of Page 5 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The fear of high legal costs is justified by the experience of would consistently use the law to seriously challenge governments in Canada [64], the USA [65,66], the Euro- industry activities that affected public health in a substan- pean Union [67] and elsewhere, where tobacco compa- tial way. nies use all procedural and appeal avenues in court actions. The intended effect is partly to discourage future The investment in legal resources for tobacco control can litigation against them. be contrasted with the actions of the New Zealand Gov- ernment in another arena. During the first years of its life Internationally, government agencies generally find that from 1993, the government agency Pharmac consistently effective investment in long-term population health and successfully undertook multi-million dollar legal issues can be squeezed out by short-term issues on politi- actions against the pharmaceutical industry. Some of the cal agendas [68-70]. While the New Zealand Ministry of credit for the success could be ascribed to the clear focus Health has a large operational budget, any legal costs in of the agency in improving the efficiency of pharmaceuti- an action such as this would come from the funds of the cal purchasing on behalf of the State, and to its relatively Public Health Directorate. This Directorate controls less independent decision making structure [75,76]. than 3% of the Ministry budget, much of which has been devoted to politically sensitive issues in recent years However, the impetus for the structure and policies of (Matheson D. Letter to George Thomson from the Deputy Pharmac was the rapidly increasing cost of pharmaceuti- Director General, Public Health Directorate. Wellington: cals to the publicly funded health system. By contrast, the New Zealand Ministry of Health; 8 July, 2002). In com- net adverse consequences from the dominance by tran- parison with resources for immunisation and cancer snational tobacco companies of the local market were screening, the use of health resources for legal expenses seen by government to generally impact on smokers, was politically difficult. rather than on government. The advice from Treasury (disputed by some health advocates) has been that the tax The fragmented focus of government also contributed to revenue from tobacco sales heavily outweighed the direct unwillingness to take advantage of the legislative oppor- costs to government from tobacco use. Therefore, govern- tunities. While the Commerce Commission was willing to ments may have been under the impression that there was take tobacco companies to court on monopoly issues, it little cost incentive to take a 'Pharmac' approach to the considered that aspects of the Fair Trading Act with health tobacco industry. implications were 'dealt with better' by the Ministry of Health [41]. The statement of the Commission staff, that The situation in New Zealand on misleading statements they focused on 'issues and trading practices that have the by the tobacco industry and its allies on SHS, despite the greatest potential detriment to consumers', may indicate explicit statute law available to address the problem, has that that they had not realised (or chose to ignore) the been in contrast to the Australian experience. There, a con- health risks from secondhand smoke, and the negative sumer organisation (largely funded by government) in the effects on health of continued statements that down- early 1990s took the local Tobacco Institute to court on played those risks. the issue of false information about SHS issues. The court required that the industry could not describe SHS as not The Ministry, while it had some focus on smokers, was less being shown to be unsafe [77]. The comparative level of able to focus on the tobacco industry as a major upstream action appears to argue for government agencies that are threat to public health. In New Zealand and elsewhere, sufficiently funded, and are mandated to act for consum- there has generally been pressure to invest the health sec- ers (including smokers). tor budget in the treatment of disease, and action on indi- vidual risk behaviours [71], rather than invest in 'non- In 2005, the Australian Competition and Consumer health' avenues such as legal action against tobacco com- Commission 'obtained court enforceable undertakings panies. from Imperial Tobacco Australia Limited' to remove mis- leading descriptors from its products [78]. The much The cases indicate that for both deceptive statements greater practice in Australia compared to New Zealand, of about SHS and for the non-disclosure of additives in New making the tobacco industry accountable in court for their Zealand, tobacco companies have been able to assume statements and actions, eg, [79-82], may be part of the that the risk of legal action by government was low. Much explanation for the much greater decline in smoking prev- of the usefulness of law is diminished if those businesses alence there [83]. This could be due to the effects of pub- that governments are trying to control are not convinced licity on smoking rates [84]. We have presented the case that government legal action will occur or will be effective elsewhere that there may also be a relationship between a [72-74]. The New Zealand Government failed to convince government focus on the tobacco industry, and more tobacco industry investors and managers that government effective tobacco control [85]. Page 6 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The issue of additives disclosure illustrates some of the The cases suggest immediate actions. In New Zealand, consequences of the contrasting national and interna- court action is needed to clearly establish the relevance of tional perspectives of governments and tobacco compa- the Fair Trading Act to misleading statements that affect nies. The New Zealand Government saw the disclosure as the perceptions of at least some of the public about SHS. a relatively minor matter, not requiring a high priority. In The writing of the new regulations, on the disclosure of contrast, the companies are able and willing to focus tobacco product constituents and design, needs to allow international resources for long periods in New Zealand for considerable powers by government to address any [86] and in other countries such as Australia [24], Thai- attempts by the tobacco industry to find loopholes in leg- land [87] and the Netherlands [88]. islation designed to protect the public interest. Limitations of these case studies Conclusion These case studies were not exhaustive, but rather Existing New Zealand laws on misleading statements intended to illuminate aspects of implementation of about secondhand smoke, and about the provision to tobacco control policy. Interviews with other key inform- government on tobacco additives, appear to have been ants, and access to further documentation could poten- insufficiently enforced. The health impact of secondhand tially have provided more in-depth evidence and context. smoke, and the importance of information for consumers Nevertheless, we consider it likely that the evidence gath- about dangerous products suggest that such enforcement ered around these case studies covers the major dimen- is necessary. sions of the issues involved. Competing interests Policy implications Both authors have undertaken contract work for tobacco To more adequately address the type of problems identi- control related non-government agencies and NW has fied in this article, and to reduce the risk of policy slip- undertaken contract work in tobacco control for the New page, the following options could be considered by many Zealand Ministry of Health. governments: Authors' contributions GT gathered the great majority of the data and conceived 1) Increasing central government capacity to work together across national boundaries to take effective and the article. Both authors designed the study, analysed the coordinated action in relation to tobacco companies [89]. data and wrote and approved the article. This includes continuing the development of the Frame- work Convention on Tobacco Control, so as to strengthen Acknowledgements The authors thank those interviewees and others who provided informa- international consumer protection law against tobacco- tion for these case studies. Two anonymous referees provided very helpful related marketing and misleading claims. comments. This work was assisted by the National Institutes of Health (USA) grant #1 R01 CA87110-01A1 to the University of Sydney. Part of the 2) Provision of support for an international consumer work was funded by ASH New Zealand. protection law resource centre in a United Nations organ- isation (eg, one for health related consumer protection in References the World Health Organization). 1. Bialous S, Glantz S: Arizona's tobacco control initiative illus- trates the need for continuing oversight by tobacco control advocates. Tobacco Control 1999, 8:141-51. 3) Ensuring explicit responsibility for the implementation 2. 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Australian Competition and Consumer Commission: ACCC resolves BioMedcentral 'light' and 'mild' cigarette issue with B.A.T. and Philip Morris [http:// Submit your manuscript here: http://www.biomedcentral.com/info/publishing_adv.asp Page 9 of 9 (page number not for citation purposes) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Australia and New Zealand Health Policy Springer Journals

Implementation failures in the use of two New Zealand laws to control the tobacco industry: 1989–2005

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Springer Journals
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Copyright © 2005 by Thomson and Wilson; licensee BioMed Central Ltd.
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Medicine & Public Health; Public Health; Social Policy
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1743-8462
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1743-8462
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10.1186/1743-8462-2-32
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16354296
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Abstract

Background: We reviewed the implementation of New Zealand laws in relation to the activities of the tobacco industry and their allies. Material for two brief case studies was obtained from correspondence with official agencies, official information requests, internet searches (tobacco industry documents and official government sites), and interviews with 12 key informants. Results: The first case study identified four occasions over a period of 14 years where New Zealand Government agencies appeared to fail to enforce consumer protection law, although apparent breaches by the tobacco industry and their allies had occurred in relation to statements on the relative safety of secondhand smoke. The second case study examined responses to a legal requirement for the tobacco industry to provide information on tobacco additives. There was failure to enforce the law, and a failure of the political process for at least 13 years to clarify and strengthen the law. Relevant factors in both these cases of 'policy slippage' appear to have been financial and opportunity costs of taking legal action, political difficulties and the fragmented nature of government structures. Conclusion: Considered together, these case studies suggest the need for governments to: (i) make better use of national consumer laws (with proper monitoring and enforcement) in relation to tobacco; and (ii) to strengthen international law and resources around tobacco-related consumer protection. A number of options for achieving these aims are available to governments. law concerns deceptive statements to potential consumers Introduction A number of authors argue that specific attention by gov- and the public, the second, the disclosure of tobacco addi- ernments and advocates to the policy implementation tives. The setting is New Zealand, which has some compo- process is needed in tobacco control, to avoid the risk of nents of a comprehensive tobacco control programme 'policy slippage' [1-3]. Policy slippage is the gap between [4,5]. the intent of policy in legislation or government direc- tives, and the implementation of such policy. This paper Background The New Zealand tobacco control programme has over investigates the way two national laws relevant to the activities of the tobacco industry were implemented. One the last 15 years introduced tobacco promotion controls, Page 1 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 smoking bans in nearly all indoor work and public places, Results a free Quitline cessation service, and access to heavily sub- Context Two aspects of the context for the case studies were: a lack sidised nicotine replacement treatment. There have also been active non-government tobacco control groups since of priority for tobacco control by the dominant party in the early 1980s [5,6]. Although per capita consumption government during 1991–1999 (the conservative has declined over the last decade, until 2004 smoking National Party) [10], and the wish by all governments prevalence has stayed at around 25–26% [[7] p.9]. This during the period covered to be seen as 'business friendly' may be due to high uptake of smoking by youth and the [[11] p.40; [12-14]]. Government officials and ex-officials lack of fiscal incentives to support quitting (ie, there has who were interviewed stated that during the 1990s they been only two tax rises on cigarettes beyond the rate of were given very clear signals that tobacco was not a prior- inflation since 1991 [8]). ity area for the government. These signals in turn resulted in internal Ministry of Health decisions on the allocation The programme operates in the context of the activity in of resources. New Zealand of three major international tobacco compa- nies – British American Tobacco, Philip Morris, and Impe- Secondhand smoke (SHS) is estimated to cause over 300 rial Tobacco. The activities of such companies have been deaths per year in New Zealand [15] making it the most part of the impetus for the recent formation (and ratifica- important environmental health hazard. Accurate knowl- tion by most countries) of the Framework Convention on edge about the extent of SHS harm is important, as it Tobacco Control, the first treaty under the World Health affects smoking behaviour [16,17]. In addition, the Organization's treaty making powers. tobacco industry has demonstrated the importance of obscuring public knowledge of SHS harms by their invest- Methods ment in deception about it [18-22]. In 2000, the Minister Brief case studies were used to review the implementation of Health wrote to the Hospitality Association of New of the two laws. The first case, around the Fair Trading Act Zealand (HANZ), noting that 'It is extremely important to 1986, involved the collection of material from: corre- treat what is said about SHS ... with due caution. ... Con- spondence with official agencies, requests to the New Zea- tinuing statements by the tobacco industry, in particular, land Government (using the Official Information Act that the science is not in on SHS ... have [been] shown to process), the opportunistic receipt of an official memo- be untrue ...' (King A. [Letter to Bruce Robertson of the Hos- randum sent to a Member of Parliament, a search of the pitality Association of New Zealand from the Minister of New Zealand Commerce Commission's website for media Health]. Wellington: 25th October 2000). releases issued from 1994 to September 2002 [9], and a search of the Factiva media website for 'New Zealand Tobacco additives are important because of their role in major newspapers' for the period September 2001 – tobacco product design to increase sales, and because of August 2002, using the phase 'Commerce Commission' their potential role in addiction [23-27]. Public knowledge and the word 'court'. The period covered for the case study about the additives is important to help ensure informed was from 1989 to 2004. consumers [28-30]. The second case, concerning the provision for tobacco Case study 1: The tobacco industry and the Fair Trading Act 1986 additives disclosure in the Smoke-free Environments Act 1990, involved website searches for both tobacco industry The Fair Trading Act states that: and New Zealand Government correspondence. The tobacco industry document websites tobaccodocu- 'No person shall, in trade, engage in conduct that is liable ments.org, Legacy Tobacco Documents Library, and Brit- to mislead the public as to the nature, ... characteristics, ish American Tobacco Documents Archive were searched [or] suitability for a purpose, of goods' [[31] s.10]. for material on the disclosure of tobacco additives in New Zealand, using the searchwords 'zealand' 'additives' The Commerce Commission has stated that its job is to 'ingredients' 'Wellington' and 'Department/Ministry of enforce 'legislation that ... prohibits misleading and Health' and then by following names revealed by the deceptive conduct by traders' [32]. The Commission has search. The period covered was from 1990 to 2004. suggested that, on the basis of court decisions, businesses must meet a fairly high standard to comply with the Fair For both cases, material from interviews with four govern- Trading Act. The standard of business behaviour expected ment officials and ex-officials, two academics, four politi- under the Act includes protecting: 'the gullible, [those] of cians and two lawyers was used to assess the validity of the less than average intelligence or poorly educated.' Gener- documentary evidence, to provide leads for inquiries, and ally, the question of intent is not relevant, 'rather the issue to provide policy and political context. is whether their actions did or could deceive or mislead'. Page 2 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The Commission has suggested that the Act also applied ' A seven year study by the World Health Organisation to 'conduct likely to mislead or deceive', (emphasis added) found no links between passive smoking and health risks' [33]. [39] and Over the period 1989–2003, we found four episodes (in '... science has not established a link between passive 1989, 2000, 2001 and 2002) where the Government had smoking and cancer' [40]. an opportunity to apply this law to the statements of tobacco companies and their allies about SHS. In 1989, The statements by BAT and HANZ about SHS were for- the advocacy group ASH NZ wrote to the Commerce warded because they appeared to meet four criteria that Commission about advertisements by the Tobacco Insti- could help the Commission make a legal case – a pattern tute of New Zealand, which had stated that 'science has of activity, clear deception, sufficiently recent date, and not established that other people's cigarette smoking large potential consequences to public health. The state- causes diseases in non-smokers'. The Commission replied ments appeared to deny or obscure the harm caused by that it was 'extremely difficult to accurately gauge the SHS, in a manner that could be described as misleading effect of the Institute's advertising campaign and therefore about tobacco products sold, or the safety of services pro- whether the campaign has or is likely to have been mis- vided by HANZ members. leading and deceptive.' The Commission also noted that 'the cost of any legal action would be considerable' [34]. The Commission replied that although the material 'appears to be a breach of the Fair Trading Act, we will not In 2000, a new Minister of Consumer Affairs asked her be investigating it in more depth at this stage' and that the officials about the use of the Fair Trading Act for legal Commission targeted 'issues and trading practices that action against the tobacco industry. She then reported that have the greatest potential detriment to consumers' (Gib- such 'action may not be possible under this Act' [35]. A son D. [Letter to George Thomson from the Commerce Com- request to the Ministry of Consumer Affairs under the mission (FTWN 49513)]. Wellington: Commerce Official Information Act for the advice given to the Minis- Commission; August 30, 2001). A spokesperson was ter was declined (Manch K. [Letter from Ministry of Con- reported as saying that the Commission 'had decided to sumer Affairs to George Thomson]. Wellington: August 23, refer the complaint to the Ministry of Health and would 2001). take no further action'. This was because 'it is dealt with better under their legislation and they have the staff with In July 2001, we sent information to the Commerce Com- the knowledge and expertise' [41]. mission about the public statements of British American Tobacco (BAT) New Zealand. The material included com- In reply to the information about statements about SHS ments from 1998 and 1999 by BAT officials about the that appeared to contravene the Fair Trading Act, the Min- IARC (International Agency for Research on Cancer) SHS istry of Health pointed out that the: study, that: 'Public Health Directorate lacks the staff and financial 'The study confirms a view that the industry had long held resources that would be needed to investigate the exam- that while smoke in the air may annoy some non-smok- ples you presented in detail' but 'in general the Ministry ers, passive smoke is not a lung cancer risk' [36]. supports the interpretations you present' (ie, that BAT and HANZ appeared to have contravened the Act's sections 9 and more generally that: and 13) 'The overwhelming majority of [independent] studies (Matheson D. Letter to George Thomson from the Deputy found no overall meaningful increase in risk for those Director General, Public Health Directorate (PP70-15-2). married to a smoker' [37]. Wellington: New Zealand Ministry of Health; July 30, 2002). These statements misrepresented the IARC findings [38]. Statements to the media in 2001 by HANZ were also given However, because the Ministry considered that the state- to the Commission, on the basis that the statements could ments 'were not made in a trading context' and because of be misleading and deceptive about the dangers of using resource reasons, the Ministry decided that 'it would not HANZ members' premises where there was SHS. The state- be profitable' to pursue the matter under the Fair Trading ments included: Act (ibid). In May 2002, a politician from a minor party outside the government provided information to the Commerce Page 3 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 Commission about deceptive practices by the industry. '... we don't believe that [SHS] has been shown to cause The information included two reported statements from chronic disease, such as lung cancer, cardiovascular dis- the media during 2001. One, by a BAT official was that 'we ease or chronic obstructive pulmonary disease, in adult have gone through the international evidence on second- non-smokers. ....' [52]. hand smoke and there is a pattern of research [indicating] that it is not a serious health issue. Nothing is risk-free in Case study 2: The non-disclosure of tobacco additives by brand this world. There is a small risk to young people and babies ...' [41]. The Director of the Commission's Fair In August 1990, the New Zealand Smoke-free Environments Trading section wrote of this statement 'reasonable mem- (SFE) Act was passed by Parliament. Section 35 of the Act bers of the public are unlikely to be misled into believing required tobacco companies to submit an annual return that this statement suggests that the death of adults is not showing the weight of all additives used in each tobacco a serious health risk, or that it denies that adults die from product. In early October 1990 the SFE Regulations were second hand smoke .... The statement represents an opin- passed by an Order in Council, just before an election ion and is unlikely to breach the Act' (Battell D. Memoran- changed the government. These regulations, amongst dum to Fair Trading Committee: Tobacco companies – referral other things, set out the way that Section 35 was to be car- from Sue Kedgley MP. Wellington: Commerce Commis- ried out. The regulation stipulated that companies give the sion; September 11, 2002). weight of every additive for every product and then the quantity of 'each brand and each brand variant sold'. Thus, The second reported statement sent to the Commission while 'product' could be considered to be a cigarette brand was that the science on SHS showed that 'if there was a or brand variant, the regulations could also give the risk, and there may be a risk, it's not a large one'. Com- impression that a 'product' was a generic type, such as cig- menting on this in September 2002, the Director of the arettes, cigars, or roll-your-own tobacco. Commission's Fair Trading section wrote that it was 'more an expression of opinion than fact. .... The people buying From then to the present, tobacco companies operating in cigarettes are unlikely to be misled by comments on the New Zealand have endeavoured to continue to both keep harm or otherwise of passive smoking' [42]. the additives used in New Zealand secret from the public, and to not disclose to government the additives for partic- To put the actions and statements of the Commission into ular brands. In late 1990, a Philip Morris official in Aus- context, we examined the legal actions it did initiate under tralia reported to the USA on some tactics he might use to the Fair Trading Act during the year to August 2002. In that get the additives disclosure law changed, and concluded time the Commission prepared or undertook at least 'short of sinking N.Z. if you have any other ideas, could twenty legal actions under the Act about deceptive state- you let me know' [53]. ments. The issues were all relatively minor in terms of health risks to consumers, and included the claim of a fish In 1991 the Government decided to insist on the disclo- and chip shop that it used cholesterol-free oil, eg. [43-46]. sure of additives by 'each brand and brand variants' The Commission took at least eight other cases to court on [54,55]. Negotiations dragged on, and by December competition matters, including two Court of Appeal and 1992, the Department of Health (DoH) was accepting a one Privy Council case [47-49]. The Commission also 'temporary' compromise position where they accepted decided that it was justified in investing considerable information only for all brands, rather than for particular resources in the control of the competitive aspects of the brands [56]. This position was valued by the tobacco com- tobacco industry, by lengthily contesting a tobacco com- panies, and Philip Morris wrote to the Tobacco Institute of pany merger [50]. New Zealand in 1993 to emphasise that they thought the DoH: Over the period 1994–2004, the most serious breach of the Fair Trading Act (in terms of mortality) where the 'under the current regulations, could impose brand-by- Commission has responded, was on children's cots. These brand disclosure .... The DoH could become irritated with were implicated in the deaths of 22 children between the industry and simply impose a brand-by-brand disclo- 1985 and 1994 [51] (ie, around two deaths per year). In sure' [57]. contrast, the total national death toll from SHS in year 2000 alone was estimated at 325 [15]. A 1993 note by Tony Andrade of the tobacco industry law firm of Shook, Hardy & Bacon also stated that the: In September 2005, the BAT New Zealand website contin- ued to cast doubt on the conclusions of the IARC SHS 'ingredients law in New Zealand would require complete study, and stated: disclosure of individual ingredients and amounts by brand if strictly enforced' [58]. Page 4 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 A Rothmans (NZ) official warned a RJ Reynolds official each separate brands and brand variant, 'as the regula- that for the 1994 return: tions may require'. In September 2005, these regulations were apparently being developed but their contents were 'there is a real possibility that the Department of Health unknown. will insist on a return in the correct form, that is, identify- ing the additives actually present rather than listing over Discussion Main findings and interpretation 2000 possible additives. They may decide ... that we will be prosecuted if we file an incorrect return again. We will The two cases illustrate the sub-optimal implementation dispute this, but we would much prefer that it does not of existing laws that could have aided the control of a come to this. ... We have argued with them for over three product that is a major cause of premature death and years and their patience together with industry credibility health inequalities in New Zealand. Possible reasons for must be close to breaking point' [59]. this level of implementation of legislation relevant to tobacco companies include: the financial and opportunity The government had three options in relation to imple- costs of implementation, the political difficulties involved menting the SFE regulations: to compromise in some way; in confronting an aggressive industry, and the fragmented to insist on information by each brand (and prosecute if nature of government. We considered that the Ministry of necessary); or to make clearer regulations that put the Health's statement that the statements on SHS 'were not industry's obligations beyond dispute. There was little will made in a trading context' as untenable, as the context for by the political party in power until 1996 to confront the the sale of tobacco include the health claims made for the tobacco industry [10] and the compromise position was products. continued. The two cases illustrate the importance of the costs of In March 1994, the New South Wales Cancer Council in implementation when governments are faced with very Australia released the list of additives given to the New large transnational companies, known to be tenacious lit- Zealand Government by the tobacco companies. This list igators willing to use every aspect of the legal process. had been obtained by a request by ASH New Zealand, They also illustrate the need for substantial investment in under the New Zealand Official Information Act [60]. an aggressive comprehensive tobacco control programme, This release, along with the ongoing risk of further New to ensure that progress is made in spite of difficulties or Zealand Government action on disclosures, appears to hesitancies in the enforcement of relevant laws. have resulted in at least two international level meetings of the tobacco companies involved [61,62]. When the Fair Trading Act issues arose, the relevant gov- ernment agencies appeared to first think about their budg- After the election in late 1996, the political balance was ets and staff resources. In 1989 and 2001, the costs of legal slightly altered. The new Associate Minister with responsi- proceedings and the staff resources needed were factors bility for tobacco control, Neil Kirton, was a member of explicitly mentioned by the Commerce Commission. In the new minority party (New Zealand First) in the ruling contrast, the Commission prosecuted a number of other coalition. After the four-year period of the compromise (often small) businesses for minor matters, and were will- which did not insist on disclosure by brand, in August ing to take tobacco and other large companies to court on 1997 the Ministry of Health wrote to the tobacco compa- competition matters. This may indicate a greater focus nies, requiring information on additives for each brand within the Commission on market regulation compared [63]. However, that month Kirton was dismissed as Asso- to the health of consumers. ciate Minister, and successive Ministers responsible for tobacco control did not pursue the matter as a priority. The Ministry of Health stated explicitly that it lacked 'the staff and financial resources that would be needed to An official described the problem from the bureaucracy's investigate the examples you presented in detail' (Mathe- point of view: son D. Letter to George Thomson from the Deputy Director General, Public Health Directorate (PP70-15-2). Wellington: 'It's basically an issue of resourcing. ... Any regulation of New Zealand Ministry of Health; July 30, 2002) let alone the tobacco industry is very confrontational. It requires a to prosecute tobacco companies on this issue. With the lot of servicing in terms of the kind of official information additives issue, officials knew that any attempt to enforce that is requested and the kind of expectations around con- the law would take scarce staff time and budgets just for sultation.' consultation and Official Information Act request processing, even before any legal expenses. Finally in 2003, the new amendments to the Smoke-free Environments Act required the testing and disclosure of Page 5 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The fear of high legal costs is justified by the experience of would consistently use the law to seriously challenge governments in Canada [64], the USA [65,66], the Euro- industry activities that affected public health in a substan- pean Union [67] and elsewhere, where tobacco compa- tial way. nies use all procedural and appeal avenues in court actions. The intended effect is partly to discourage future The investment in legal resources for tobacco control can litigation against them. be contrasted with the actions of the New Zealand Gov- ernment in another arena. During the first years of its life Internationally, government agencies generally find that from 1993, the government agency Pharmac consistently effective investment in long-term population health and successfully undertook multi-million dollar legal issues can be squeezed out by short-term issues on politi- actions against the pharmaceutical industry. Some of the cal agendas [68-70]. While the New Zealand Ministry of credit for the success could be ascribed to the clear focus Health has a large operational budget, any legal costs in of the agency in improving the efficiency of pharmaceuti- an action such as this would come from the funds of the cal purchasing on behalf of the State, and to its relatively Public Health Directorate. This Directorate controls less independent decision making structure [75,76]. than 3% of the Ministry budget, much of which has been devoted to politically sensitive issues in recent years However, the impetus for the structure and policies of (Matheson D. Letter to George Thomson from the Deputy Pharmac was the rapidly increasing cost of pharmaceuti- Director General, Public Health Directorate. Wellington: cals to the publicly funded health system. By contrast, the New Zealand Ministry of Health; 8 July, 2002). In com- net adverse consequences from the dominance by tran- parison with resources for immunisation and cancer snational tobacco companies of the local market were screening, the use of health resources for legal expenses seen by government to generally impact on smokers, was politically difficult. rather than on government. The advice from Treasury (disputed by some health advocates) has been that the tax The fragmented focus of government also contributed to revenue from tobacco sales heavily outweighed the direct unwillingness to take advantage of the legislative oppor- costs to government from tobacco use. Therefore, govern- tunities. While the Commerce Commission was willing to ments may have been under the impression that there was take tobacco companies to court on monopoly issues, it little cost incentive to take a 'Pharmac' approach to the considered that aspects of the Fair Trading Act with health tobacco industry. implications were 'dealt with better' by the Ministry of Health [41]. The statement of the Commission staff, that The situation in New Zealand on misleading statements they focused on 'issues and trading practices that have the by the tobacco industry and its allies on SHS, despite the greatest potential detriment to consumers', may indicate explicit statute law available to address the problem, has that that they had not realised (or chose to ignore) the been in contrast to the Australian experience. There, a con- health risks from secondhand smoke, and the negative sumer organisation (largely funded by government) in the effects on health of continued statements that down- early 1990s took the local Tobacco Institute to court on played those risks. the issue of false information about SHS issues. The court required that the industry could not describe SHS as not The Ministry, while it had some focus on smokers, was less being shown to be unsafe [77]. The comparative level of able to focus on the tobacco industry as a major upstream action appears to argue for government agencies that are threat to public health. In New Zealand and elsewhere, sufficiently funded, and are mandated to act for consum- there has generally been pressure to invest the health sec- ers (including smokers). tor budget in the treatment of disease, and action on indi- vidual risk behaviours [71], rather than invest in 'non- In 2005, the Australian Competition and Consumer health' avenues such as legal action against tobacco com- Commission 'obtained court enforceable undertakings panies. from Imperial Tobacco Australia Limited' to remove mis- leading descriptors from its products [78]. The much The cases indicate that for both deceptive statements greater practice in Australia compared to New Zealand, of about SHS and for the non-disclosure of additives in New making the tobacco industry accountable in court for their Zealand, tobacco companies have been able to assume statements and actions, eg, [79-82], may be part of the that the risk of legal action by government was low. Much explanation for the much greater decline in smoking prev- of the usefulness of law is diminished if those businesses alence there [83]. This could be due to the effects of pub- that governments are trying to control are not convinced licity on smoking rates [84]. We have presented the case that government legal action will occur or will be effective elsewhere that there may also be a relationship between a [72-74]. The New Zealand Government failed to convince government focus on the tobacco industry, and more tobacco industry investors and managers that government effective tobacco control [85]. Page 6 of 9 (page number not for citation purposes) Australia and New Zealand Health Policy 2005, 2:32 http://www.anzhealthpolicy.com/content/2/1/32 The issue of additives disclosure illustrates some of the The cases suggest immediate actions. In New Zealand, consequences of the contrasting national and interna- court action is needed to clearly establish the relevance of tional perspectives of governments and tobacco compa- the Fair Trading Act to misleading statements that affect nies. The New Zealand Government saw the disclosure as the perceptions of at least some of the public about SHS. a relatively minor matter, not requiring a high priority. In The writing of the new regulations, on the disclosure of contrast, the companies are able and willing to focus tobacco product constituents and design, needs to allow international resources for long periods in New Zealand for considerable powers by government to address any [86] and in other countries such as Australia [24], Thai- attempts by the tobacco industry to find loopholes in leg- land [87] and the Netherlands [88]. islation designed to protect the public interest. Limitations of these case studies Conclusion These case studies were not exhaustive, but rather Existing New Zealand laws on misleading statements intended to illuminate aspects of implementation of about secondhand smoke, and about the provision to tobacco control policy. Interviews with other key inform- government on tobacco additives, appear to have been ants, and access to further documentation could poten- insufficiently enforced. The health impact of secondhand tially have provided more in-depth evidence and context. smoke, and the importance of information for consumers Nevertheless, we consider it likely that the evidence gath- about dangerous products suggest that such enforcement ered around these case studies covers the major dimen- is necessary. sions of the issues involved. Competing interests Policy implications Both authors have undertaken contract work for tobacco To more adequately address the type of problems identi- control related non-government agencies and NW has fied in this article, and to reduce the risk of policy slip- undertaken contract work in tobacco control for the New page, the following options could be considered by many Zealand Ministry of Health. governments: Authors' contributions GT gathered the great majority of the data and conceived 1) Increasing central government capacity to work together across national boundaries to take effective and the article. Both authors designed the study, analysed the coordinated action in relation to tobacco companies [89]. data and wrote and approved the article. This includes continuing the development of the Frame- work Convention on Tobacco Control, so as to strengthen Acknowledgements The authors thank those interviewees and others who provided informa- international consumer protection law against tobacco- tion for these case studies. Two anonymous referees provided very helpful related marketing and misleading claims. comments. This work was assisted by the National Institutes of Health (USA) grant #1 R01 CA87110-01A1 to the University of Sydney. Part of the 2) Provision of support for an international consumer work was funded by ASH New Zealand. protection law resource centre in a United Nations organ- isation (eg, one for health related consumer protection in References the World Health Organization). 1. Bialous S, Glantz S: Arizona's tobacco control initiative illus- trates the need for continuing oversight by tobacco control advocates. Tobacco Control 1999, 8:141-51. 3) Ensuring explicit responsibility for the implementation 2. 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