They recoil at the sight of the gangrenous foot or the wasted man who is dying from lung cancer, and they ask why anyone would ever smoke. That is the difference between reality and advertising. Advertising seeks to ensnare and entrap our children. The reality, our children are wise enough to know, is something to be avoided.
The industry argues that the main reason it opposes standardised packaging is that packs will be easier to counterfeit and illicit trade will increase. My colleagues in the Revenue Commissioners have poured cold water on this, stating that the tax stamp is the key way to determine whether something is legal or illegal. Let us think about this. If plain packs are used in this country and other countries are still producing shiny packs, it would be very easy to spot what is contraband. In any event, 90% of contraband is through illegal imports and only 10% is counterfeit. There is a theory the industry is afraid of standardised packaging because there will be no perceived difference between their premium, more expensive brands and their cheaper brands. As a result, their profits will reduce.
While a legal challenge to the proposed legislation cannot be ruled out, and in fact I would be astonished if there was not a legal challenge, I am confident the research available to us demonstrates that standardised packaging will have a positive impact on health and is a proportionate and justified measure. It would be an extraordinary society that would put the intellectual property rights of the tobacco industry, whose product kills one in two of those who use it regularly, above the lives and well-being of our citizens, in particular our children.
I am determined that the threat of legal challenges should not be an obstacle to progressing public health policies. It is one of several methods the tobacco industry has used to stymie and intimidate authorities in other jurisdictions. It has been said to me by counterparts in other countries that they are holding on to see how we get on with these provisions in Ireland. I am pleased that Britain and New Zealand are now moving in the same direction. There are always obstacles – legal, lobbying or otherwise – to any move for change, but we must do what is right, not what is easiest. There is a case to be made for asking all public relations companies to confirm whether their client lists include tobacco companies. In fact, I am issuing an open call from this House to that effect, a call to which I see Senators assent.
We need to remind ourselves why we are debating any issues relating to tobacco. It is because tobacco use is one of the most preventable public health threats, with almost 6 million people dying globally from smoking each year. On a human level, that amounts to 6 million lives needlessly cut short and 6 million families destroyed. On an economic level, it accounts for a substantial section of the health care budget which might be saved or redirected to other areas in need of funding. Governments must take strong action to tackle this global problem.
This Government has ambitious plans and a strong appetite for radical and far-reaching tobacco control measures. However, we cannot support the proposals we are discussing today, for the reasons I will outline. Ireland is a strong supporter of and a party to the World Health Organization’s Framework Convention on Tobacco Control. The convention recognises the issue of tobacco industry interference in Article 5.3:
In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.
To assist countries in implementing this article, the WHO developed guidelines that are comprehensive in nature and set out recommendations on steps to be taken if and when there is interaction with the tobacco industry. The guidelines allow interaction with the industry by governments “when and to the extent strictly necessary to enable them to effectively regulate the tobacco industry and tobacco products.” In these circumstances, the WHO recommends, interactions should be conducted publicly where possible and with disclosure of all relevant records. In 2012 and 2013, I wrote to all Ministers and separately to the Secretaries General of their Departments enclosing the guidelines and requesting adherence thereto in respect of any interactions with the tobacco industry.
Regarding the meeting to which Senator Crown alluded, the minutes of that meeting are already in the public domain through the freedom of information process and are open to any journalist or anybody else who wishes to see them. Within a couple of weeks of that meeting, the Government of which I am proud to be part offered me unanimous backing to bring in standardised packaging. That was noted around the world and by the tobacco companies in particular. Furthermore, the Taoiseach joined me in writing a letter to MEPs seeking their support for the tobacco directive. This Government is 100% committed to creating a tobacco-free Ireland, protecting our children from tobacco and helping smokers quit their habit. We are not anti-smokers; we are anti-smoking.
One of the recommendations in our Tobacco Free Ireland policy document specifically addresses this area:
Take steps to ensure that all government officials, employees of state agencies and members of any government branch (executive, legislative and judiciary) responsible for setting and implementing tobacco control policies and for protecting those policies against tobacco industry interests are aware of their obligations under Article 5.3 of the WHO FCTC and are aware of the Guidelines developed to assist in meeting these obligations.
In order to implement this recommendation, I am exploring further options on how best to protect public health policy on tobacco from lobbyists.
A number of legal and constitutional considerations arise in respect of Senator Crown’s proposals. The constitutional issues include serious concerns in regard to freedom of expression, freedom of assembly and freedom of association. Neither I nor my officials are aware of any free world jurisdiction in which criminal offences such as those envisaged in this Bill apply. There are freedoms enshrined in our Constitution which make it unconstitutional for us to implement the Bill. There are also problems of vagueness in respect of the criminal provisions contained therein, which make them likely to be challenged successfully. The offences provisions are, in the view of the Attorney General, unworkable.
I am anxious that Senator Crown and those who support his proposals in this Bill do not misunderstand my position. We are on the same page when it comes to the scourge of tobacco. Indeed, we are leading the charge in Europe in regard to standardised packaging, a provision which I fully expect to be challenged on the grounds of interference with intellectual property rights. As we know, our Constitution is very strong on property rights. Our defence, as the tobacco industry knows, will be that this is a proportionate measure to protect public health. All of the research supports that and any reasonable-minded person will consider it such. On the other hand, introducing legislation such as the Senator has proposed would be very disproportionate and might only serve to undermine our efforts in this area. To criminalise meetings with representatives of the tobacco industry would be untenable. Smoking is not illegal in this country and the tobacco industry is not outlawed, although some people might be of the view that both should be the case. As it stands, we have a Constitution and people have rights under that Constitution.
The Bill also cites An Garda Síochána as the enforcers of this legislation. It is likely that these provisions would prove unenforceable on a practical level, which would have the effect of taking from the credibility of the principles behind the legislation. Such an enforcement obligation might also be considered an ineffective use of Garda resources. While adherence to the previously mentioned guidelines is important, I reiterate that the manufacture and sale of tobacco are not illegal activities. To criminalise persons for engaging with the industry would therefore be excessive and disproportionate, particularly when to do so might damage the credibility of other key policies and legislative tobacco control measures.
The Bill is unnecessary given that the programme for Government contains a commitment to introduce a statutory register of lobbyists and rules concerning the practice of lobbying. The public service reform programme launched by the Minister for Public Expenditure and Reform on 17 November 2011 contains a commitment to prepare legislation to meet this objective. On 30 April this year, the Government approved the drafting of the regulation of lobbying Bill, the purpose of which is to ensure greater openness and transparency on public policy formulation and facilitate valuable input to the decision-making process. The intention is to continue to encourage such participation while ensuring it is done in a fully open manner.
I conclude by reiterating my appreciation of the work Senator Crown has done in bringing forward this legislation and his bona fides in terms of what he is seeking to achieve. His proposals, however, are very problematic. As I said, the regulation of lobbying Bill will assist in the issue he seeks to address. I certainly am not complacent in this matter and will continue to explore actions we can take in line with our Tobacco Free Ireland policy. However, to legislate as set out in this Private Members’ Bill would be unnecessary and inappropriate. For all of the reasons I have outlined, the Government cannot support the legislation. I thank the Senator once again for raising this issue on the floor of the House. The more light we throw on these matters the better. The tobacco industry promotes, advertises and sells a product that kills one in two of those who become addicted to it. That amounts to 5,200 Irish people and 700,000 Europeans every single year. I am determined that we will succeed in tackling this scourge.