In an orchestrated attack on cigarette regulation in the UK, tobacco giant Philip Morris, the world’s largest tobacco company, filed a flurry of Freedom of Information Act requests in September designed to give them access to proprietary academic research on teenage smoking habits. It’s no coincidence that the U.S. Centers for Disease Control and Prevention (CDC) announced in November that the percentage of adult smokers in America had finally fallen below 20%. American teens smoke at slightly higher rates than adults, as do citizens of the UK. (Figures in the EU vary widely, but hover in the high 20s.) For the past month, tobacco firms Philip Morris and Gallaher have been busily engaged in a campaign to force academic researchers in Britain to turn over sensitive cigarette research—a campaign Philip Morris quietly dropped this week, after two months of adverse publicity.
The cigarette companies have also targeted the UK Department of Health, demanding access to the minutes of confidential meetings involving health department officials and cancer experts, “to the surprise of those who attended the private discussions,” according to Steve Connor, the science editor who spearheaded the investigation for the British newspaper, the Independent. The FOI requests, the Independent concludes, are part of “a global campaign by tobacco companies to fight any further legal restrictions of cigarette sales and promotion, particularly the introduction of plain cigarette packets.”
Hooking the developed world’s teen smokers is the one bright spot in Big Tobacco’s future, and industry executives know it. What Phillip Morris wanted was university research on a wide range of attitudes and behaviors teens hold towards smoking—especially their feelings about new plans for British cigarette packaging. Like the U.S. and Australia, officials in Britain are planning plain packages in a neutral color, with no brand logos, only the brand name in simple typeface plus warning labels.
Big tobacco appears intent on drawing a line in the sand any way it can over the issue of plain packaging. The U.S. and Australia have already mandated these changes—restrictions that aim to turn cigarette packs into either fright cards or the proverbial plain brown wrapper. But the British attack by Big Tobacco rocked the public health community, where confidentiality is often the keystone of successful research, especially into stigmatized issues such as underage smoking. Researchers were horrified, but legal opinion on the request was mixed. From the tobacco industry’s point of view, the problems began when Cancer Research UK, the nation’s leading cancer charity, bankrolled a study by the UK Centre for Tobacco Control Studies at Stirling University in Scotland. The investigators surveyed thousands of British teenagers to investigate their attitudes and behavior toward smoking, with special emphasis on why they do or do not pick up the pack—and the habit. Needless to say, a study intended to read the minds of Big Tobacco’s target market would be met with parental fury.
With a database of some 5,500 teens between the ages of 11 and 16—who participated only on condition of anonymity—Stirling was unprepared for the Phillip Morris request. A separate FOI request by Gallaher, a subsidiary of Japan Tobacco International, demanded “all correspondence between the [health] department and outside organizations, such as the campaign group Action on Smoking and Health (ASH), the UK Centre for Tobacco Control studies, and the scientific research charities Cancer Research UK and the British Heart Foundation.” Deborah Arnott, chief executive of ASH, said it was clear that the industry “wants access to government documents and academic research for one purpose only to help it fight regulation.” The Independent said that in the case of the Health Department requests, “the company wanted to understand what materials were being relied upon as evidence for planned plain-packaging legislation.
But why are the tobacco firms so concerned with packaging? Let’s face it: The red Marlboro chevron, the cartoon camel, and the Lucky Strike bull’s-eye are all hugely lucrative branding devices.
“All the experts say that the tobacco industry will fight tooth and nail to retain their branded packets.” says the Independent’s Steve Connor. “The tobacco industry claims it does not target children, but branded packets are undoubtedly attractive to this under-age group as well.”
But why are the tobacco firms so concerned with packaging? Let’s face it: The red Marlboro chevron, the cartoon camel, and the iconic bull’s-eye of Lucky Strike (designed by the man who brought us the Coca-Cola logo) are all hugely lucrative branding devices. The industry is increasingly faced with the problem of finding legal space—any space—where they can exploit these powerful icons. Thus, the fierce fight over the package itself—virtually the last advertising space over which the industry exerts some advertising control. An internal cigarette industry analysis released in 2007 put the matter forthrightly: “If you smoke, a cigarette pack is one of the few things you use regularly that makes a statement about you. A cigarette pack is the only thing you take out of your pocket 20 times a day and lay out for everyone to see.”
The trade magazine World Tobacco counseled companies that “if your brand can no longer shout from billboards, let alone from the cinema screen or the pages of a glossy magazine… it can at least court smokers from the retailer’s shelf, or from wherever it is placed by those already wed to it.”
In a report issued by Cancer Council Victoria recently, Australian researchers analyzed 24 published studies and concluded that “the cigarette pack has become the key marketing tool employed by the tobacco industry to attract and retain customers.”
Some of the Stirling data is already accessible in published studies. The July issue of Journal of Tobacco Control featured an article about the influence of packaging on the behavior of young smokers, showing that those with plain packets took out their cigarettes less frequently, handled the cigarettes less often, and sometimes hid the packs. Lead author Dr. Crawford Moodie said the study, which was based on only 50 young adult smokers, “confirms the lack of appeal of plain packs.” Moodie said his group was “now looking to build on this research to understand more about the impact of packaging on smokers.” Big Tobacco wants to understand more about it, too, so it can find ways of making plain packaging more appealing. And it wants to use Cancer Research’s own data for the purpose.
Phillip Morris wants the teen smokers’ database so that they can get an advance peek at the research they will shortly be refuting with poorly-designed, hastily conducted, and misleadingly-compiled studies of their own. “Doubt,” as the infamous cigarette industry motto would have it, “is our product.”
Nonetheless, what the tobacco firms are doing is perfectly legal and common under the auspices of the UK FOI regulations. But as the Independent notes, this is not a two-way street: “Although tobacco companies can use FOI legislation to access government documents, the tobacco industry itself is not subject to the legislation.” As a tobacco industry spokesperson put it, “information held by private companies such as ours is often of a commercial nature and therefore cannot be released for competitive reasons.”
When asked what material Phillip Morris which makes seven of the world’s top 15 international brands had specifically requested, Professor Gerard Hastings told the Independent: “They wanted everything we had ever done on this.” Professor Hastings said he feared a loss of trust from study participants and funding sources: “I don’t think for one moment a cancer charity is going to take kindly to paying us hundred of thousands of pounds to give aid and succor to a multinational tobacco corporation.”
Stirling researchers involved in the study said they have received anonymous hate emails and phone calls, which they assume is the work of pro-smoking lobbyists. Professor Linda Bauld, one of the targets, said such attacks were nothing new. “I’ve had a series of anonymous calls starting about a year ago,” she told British sources. “These are phone calls in the evening when I’m at home with my children. It’s an unpleasant experience.”
The worldwide tobacco industry pushback against the forces of annihilation, from their point of view, is now in full swing: R.J. Reynolds, Lorillard, and other tobacco companies prevailed earlier in November over the Food and Drug Administration in the U.S. District Court for the District of Columbia, where Judge Richard Leon ruled that forcing cigarette manufacturers to offer their products only packaging containing “graphic images” was a violation of free speech, and therefore unconstitutional. The companies were granted a preliminary injunction, while the FDA regroups and lawyers rehuddle. The new regulations were supposed to take effect in September of 2012, and are considered one of the keystones of the Obama Administration’s public health approach at the FDA.
Meanwhile, the head of the World Health Organization last week urged countries to stand together against ongoing tobacco company efforts to “harass” them into backpedaling on their anti-smoking programs. “How can we as an international community allow big tobacco to harass countries?” asked Director-General Margaret Chan. She made her sharply accusative exhortation in response to legal action launched by Philip Morris in Australia, aimed at combating new legislation which bans brand logos and bright colors, substituting graphic health warnings and plain type. On November 22, Phillip Morris announced it would sue for billions in compensation if the government outlaws “logis, imagery, colours, and promotional text.”
What goes unstated is the fact that cigarette packages do more than make a personal statement—in their new form, they broadcast a statement about ill health. Back in 1995, a Canadian report examined existing studies and concluded that teenagers “are much less likely to associate specific brands with specific types of people when packs are plain. Students have enhanced ability to recall health warnings on plain packs, suggesting that imagery can distract from health warnings. Health warnings on plain packs were seen as being more serious than the same warnings on branded packs, suggesting that brand imagery diffuses the impact of health warnings.”
Marketing mavens have long known that young consumers are fickle. Phillip Morris declared in corporate communications that “once exposed to innovative [packaging] especially young adults see their current packaging as dated and boring.” Plain packaging does not fulfill the tobacco industry’s need for ever-newer packaging that is “slick, sleek, flashy, glittery, shiny, silky, bold.”
The tobacco industry has predictably already developed a strategy to subvert the negative influence of plain packaging. A paper by researchers at the University of California at San Francisco notes that the advertising battle over pack imagery includes “the inner frame card, outer film and tear tape, and the incorporation of holograms, collectable art, metallic finishes, multi-fold stickers, photographs and images.” And that’s just the package. The industry has discussed the role retailers can play in advertising, such as placing logo signage nearby, or even stocking specially designed cartons that display a brand logo when stacked correctly.
In Australia and the UK, the fallback for the tobacco industry’s legal challenge has been intellectual property rights. Cigarette makers argue that forcing them to use plain packaging represents a blatant violation of a company’s right to deploy its legally registered intellectual property. However, plain package advocates point to a wealth of published work by experts in trademark law suggesting that governments are allowed to “restrict use of trademarks to protect public health.”
In America, the legal argument has centered on the reliably red-meat issue of free speech—far more engaging for the public than the dry British complaints about trademarks. In the U.S. District Court in Washington, D.C., the firms argued that the FDA exceeded its brief when it unilaterally decided that the public interest in information about the dangers of smoking gave license to trample on the free speech rights of the cigarette makers. In response, the FDA said that “the public interest strongly militates against delaying health warnings that more effectively convey the extraordinary, undisputed health risks created by the use of plaintiffs’ products.” Industry insiders say that the tobacco companies don’t necessarily expect to win such lawsuits, but can use these cases to keep the matter tied up in court for years.
Science editor Connor at the Independent draws parallels between tobacco industry actions and the flurry of FOI requests now burdening the Climatic Research Unit at the University of East Anglia, which is studying climate change: “The scientific denialism shown by Big Tobacco can be linked with the climate denialism of the fossil-fuel industry through organizations that foster both types of skepticism.” Both lobby groups know that “the best chance of avoiding regulation is to challenge the scientific consensus by sowing disinformation and personally undermining those who carry out the research.”
Is this Big Tobacco’s last stand? Connor told The Fix: “It seems to be the last place where they can stamp their own branding images and logos on the public imagination. They have no intention of letting the research on plain packaging go ahead. It would mean an end to the brand distinction that keeps them in business.”
Dirk Hanson has written extensively about addiction and recovery issues. He is a regular contributor to The Fix, is author of The Chemical Carousel: What Science Tells Us About Beating Addiction and blogs daily at Addiction Inbox.
