A few days before Christmas, the tobacco industry chalked up a small but significant victory.
When the European Commission published a new anti-smoking plan on 19 December, it backed away from recommending that cigarettes should be sold in plain packets. Compulsory pictorial warnings of disease will be introduced, yet 30% of the surface area in a box of fags will be reserved for branding.
Why have Brussels officials decided to allow Marlboro and Silk Cut entice young people with their distinctive colour schemes? Why couldn't the EU follow the example set by Australia where tobacco is now wrapped in a shade of green so hideous it reminds me of the uniforms worn in schools run by nuns?
Based on the information I've been able to gather, it appears that the Commission has capitulated to cigarette firms.
Over the past few years tobacco lobbyists have been playing a game of "divide and conquer". After they learned that EU health officials were entertaining the idea of plain packaging, the lobbyists turned to staff in the Commission's trade department. Reading between the lines of the correspondence that I've obtained, it is clear that the lobbyists perceived civil servants handling commercial matters as bigger allies than their colleagues tasked with preventing cancer and heart disease.
Threats
In October 2011, the "public relations" consultancy Bell Pottinger - working on behalf of Imperial Tobacco - contacted various trade officials, expressing its unease about the planned strengthening of the EU's anti-smoking legislation. One letter argued that plain packaging would "compromise European business as a whole". Such a measure would run counter to "fundamental spirit" of EU law on protecting trademarks and designs, according to Tobias Ghersetti from Bell Pottinger's Brussels office.
The American Legislative Exchange Council (ALEC) - a corporate-funded group that once boasted Donald Rumsfeld as chairman of its policy board - made a bizarre plea to Karel de Gucht, the EU's trade commissioner, in late 2010. ALEC's Karla Jones sent de Gucht a policy paper which contended that "the institution of plain packaging regulations amounts to a government's seizure of, what is in many cases, a corporation's most valuable asset - its trademark". Having made that hard-headed observation, ALEC dismissed all suggestions that putting cigarettes in unattractive wrappers dominated by images of disease could be beneficial for public health. It referred to "reports of smokers in some EU countries" collecting and exchanging pictorial warnings that have been introduced at national level as if they were macabre bubblegum cards.
Not surprisingly, ALEC didn't cite any actual data to support its inference that robust public health laws encourage perverse fetishes. Contrary to what ALEC implied, there is data available to demonstrate that sound legislation leads to a reduction in smoking. As a follow-up to its ratification of the World Health Organisation's framework convention on tobacco control in 2004, Uruguay banned indoor smoking in all public places, increased tobacco taxes and stipulated that 80% of both sides of a cigarette box should be covered by pictorial images and health warnings. In 2003, 39% of Uruguay's men and 28% of its women smoked. By 2009, the rates had fallen to 31% for men and 20% for women.
It is particularly telling that in 2010 Uruguay became the first country to outlaw "differentiated branding", under which lighter shading could be used to distinguish "mild" cigarettes from those with a higher tar content. A 2012 study by the International Tobacco Control Evaluation Project concluded that the proportion of Uruguayans who believed the myth that some cigarettes were less harmful than others decreased from 29% to 15%.
Could the European Commission's decision to allow tobacco firms preserve their brand identities be the result of cowardice? Almost certainly, the answer is "yes". Industry has bombarded officials with papers from lawyers lately, giving less than subtle hints that it would take any plain packaging initiative to court.
Messenger boy
Both EU health and trade officials have held many closed-door discussions with tobacco representatives. This amounts to a rejection of World Health Organisation guidelines, which emphasise that any contact between regulatory authorities and the tobacco industry should be kept to a minimum and should be conducted in public as much as possible.
The Commission's trade department has been broadly helpful to tobacco lobbyists. Rather than rowing behind Australia's efforts, de Gucht and his team made enquiries in 2011 about whether or not plain packaging would constitute a "technical barrier to trade". This stance was at odds with that of Brazil, Cuba and India, all of which defended Australia's right to restrict corporate activities on public health grounds when a case was brought against its anti-smoking law at the World Trade Organisation.
A year earlier, the EU acted as a messenger boy for Big Tobacco. When Canada introduced new rules against tobacco marketing aimed at young people, the Union demanded that it submit a formal notification to the WTO.
Nor should it be forgotten that de Gucht is tacitly encouraging tobacco firms to sue governments whenever their profits are at stake. The trade agreement he is hoping to clinch with Canada shortly looks set to have provisions that will enable corporations contest health, environmental or labour rules perceived as impediments to business. Philip Morris has used comparable provisions in other trade agreements to litigate against Uruguay and Australia.
We should not delude ourselves into thinking that the EU is at war with the tobacco industry. Sadly, it isn't.
•First published by New Europe, 13-20 January 2013.
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