Monkey see, monkey smoke?

It was Groucho Marx who once said, ‘Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies’. In that particular vein, let me remind you of The Four Truths of Plain Packaging – the four things that everyone ‘knows’ and all of us accept and that require no further study or debate. These are scientifically correct truths in the purest, most empirical sense.

The first truth is that advertising and promotion are the major reasons why young people begin to smoke; the second truth is that plain packaging builds upon the quite obvious success of the retail tobacco display ban; the third truth is that branded packaging reduces the effectiveness of the health warnings on tobacco products, even graphic warnings; and the fourth and final truth is that respective intellectual property (IP) treaties that the British government has signed are sufficiently flexible to permit existing trademark protections to be wiped out.

As the wisdom of these four truths is so blindingly obvious, please indulge me as I suggest just one small, possibly inconsequential characteristic shared by each one of these truths. It is simply this: each one of these truths is, in fact, untrue.

George Orwell once remarked: ‘No doubt tobacco is something that a saint must avoid, but sainthood is also a thing that human beings must avoid.’ However, in a futile attempt by the powers-that-be to increase the number of saints at the expense of the number of human beings, these four truths are now propagated successfully within the corridors of power.

Plain packaging represents the most sophisticated approach to tobacco regulation to date. It centres on the realisation that the industry’s core value is found in its brands. A marketplace in which all brands appear in equally unattractive plain packaging would present substantial, although not insurmountable, financial and creative challenges to an industry where brand distinctiveness is crucial to success.

Plain packaging would have two interrelated marketplace consequences: it would distort competition between manufacturers and increase concentration and prevent new entrants into the marketplace. Plain packaging would distort competition through the gradual freezing of the market in which the current market share of each manufacturer and brand would become essentially fixed. Brand switching, which plays a significant role in most markets, would be frustrated. Obviously, this would have different effects on each manufacturer depending on their current competitive strategy and the type of markets in which they currently compete.

But, back to plain packaging’s first and most important truth. In the real world of facts and evidence, the empirical record about advertising’s effect on young people is decidedly mixed. Large, independent, methodologically sound studies have failed to find a connection between tobacco ads, consumption and youth smoking. Data from 145 countries finds little evidence that ad restrictions and bans affect smoking prevalence in any country. In America, the states with lower smoking rates are also the states providing fewer anti-smoking programmes. In short, none of the evidence from the tobacco marketplace, nor the econometric literature, nor the studies of advertising exposure and recall, nor the examinations of the results of tobacco-ad restrictions provides compelling evidence of a causal connection between advertising and consumption, or between advertising and smoking initiation. The so-called ‘evidence’ marshalled in support of plain packaging is actually embarrassingly thin.

Moreover, it’s not simply the slender quantitative base of the evidence that’s so disturbing; its inferior quality in terms of study design, methodology and, most crucially, the conclusions drawn from the evidence, make a mockery of the claim that plain packaging is ‘evidence-based’ policy. Not one of these studies provides any actual evidence that a single young person has ever started smoking after seeing conventionally packaged cigarette products.

That is, in part, why many nations have rejected plain packaging. After much deliberation in the 1990s, Canada eventually took no action on plain packaging. More recently, Gordon Brown’s interventionist government seriously examined the idea in 2008 and 2009, but concluded there was insufficient evidence to justify moving forward.

Nevertheless, in homage to plain packaging’s second truth, the UK has joined an elitist band of regulatory brothers in banning the display of tobacco products in shops. Earlier this month, larger shops were forced to hide tobacco products behind sliding shutters or under the counter; small shops will have to follow suit in the next few years. Such a step was taken because the mere sight of displayed cigarettes causes smoking, or so we were told by those who obviously know so much more than we do.

Yet just as prohibiting the display of tobacco products has failed to reduce smoking in other countries, so it will fail here, too. Of course, you may not wish to take my contrarian, libertarian word for it. So I suggest that you look, for example, at work performed by the Canadian government’s health department, whose own data vividly illustrates the display ban’s North American failure.

And, predictably, display bans have perverse consequences. For one thing, even the most basic understanding of adolescent psychology suggests that placing cigarettes out of sight ensures they are put ever more firmly in the category of forbidden fruit, as something so dangerous and so terribly attractive that society decrees it must literally be hidden under or behind the counter. Policymakers have made cigarettes the new pornography of the corner shop. By further stigmatising cigarettes as the only widely consumed product that can’t be openly displayed, smoking has been made not less but more attractive.

The key argument for plain packaging’s effectiveness rests upon the third truth, that is, upon the utility of the ‘new’ and ‘improved’ health warnings that will replace current branding. The intellectually anaemic theory behind tobacco health warnings is twofold. First, there exists a significant ‘information deficit’ among the general public, especially among young people and potential smokers. Apparently, the streets of cities up and down the land are literally teeming with people who are completely unaware that smoking is bad for your health. (If I ever encountered such a rare and exotic creature, I think I’d be tempted to take them home and put them under glass and charge friends and colleagues to come round and see them.)

Second, in light of such widespread, if undocumented, public ignorance about the dangers of smoking, it is forecast that ever-larger and ever-more warnings will educate these ignorant people that smoking is, in fact, dangerous and, consequently, many will quit smoking, while others will never take up the filthy habit in the first place. And, we are assured, the scarier the warning, the better the outcome will be for public health.

All of which raises an obvious, yet neglected, question. Do health warnings actually work? The equally obvious – and equally neglected – answer is no, they do not.

Today, more than one billion people in 19 countries are covered by laws requiring large graphic warnings on cigarette packs. Several independent research studies published over the past year have found graphic health warnings to be a complete and utter policy failure. A US Food and Drug Administration study concluded that warnings have no influence upon quitting or smoking initiation, which confirmed earlier research by the Canadian government, which found warnings neither reduce youth smoking nor youth smoking-initiation, nor do they reduce adult smoking levels. Recent Australian research found that warnings don’t lead to any significant, positive behavioural changes. A team of German doctors found in a research study published last summer that images of corpses and cancerous lungs on cigarette packs do little to deter nicotine addicts.

I’d like to suggest a number of evidence-based reasons for these miserable results for tobacco warnings. First, health warnings don’t increase smokers’ information regarding the risks of smoking. The plain truth is that the information contained in health warnings is neither new nor useful to smokers or potential smokers. That’s because, as Harvard University researchers have documented, smokers actually overestimate the risks of smoking to their health.

Second, most people respond to health warnings in a manner that the scientific literature refers to as ‘cognitive readjustment’, that is, we recognise the dangers contained in the warnings but we exempt ourselves from the potentially dire consequences, as we simply do not believe such bad things will happen to us.

Third, today most people suffer from ‘warning fatigue’. That is, we have been bombarded for so long with so many warnings about so many things that we simply tune most of them out, including ‘new’ warnings about tobacco.

Fourth, low-income people disproportionately filter out ‘helpful’ public-health information. Whereas high-income people are comparatively health conscious, such behaviour – and, hence, such information – is relatively unimportant to those with comparatively little disposable income. As modern-day smokers in Western nations are disproportionately low-income, the futility of new, larger warnings is obvious.

Fifth, low self-esteem sufferers (who are mostly low-income people, too) also have a strong tendency to ignore danger warnings explicitly designed to influence their health and lifestyle choices.

Sixth, researchers find those potential smokers who possess less information about smoking’s risks are not more likely to start smoking than those who are better informed about the potential health dangers.

Seventh, many smokers have been ‘educated’ that their dangerous addiction is so hardcore that it’s beyond their own control and, therefore, beyond their own personal responsibility. They’re convinced that nothing short of medical intervention will enable them to quit. As a result, out of a sense of impotence, they, too, simply ignore the warnings.

Finally, large, ‘scary’ warnings are usually counterproductive. Why? In the psychology literature, researchers employ the term ‘reactance’ to explain people’s unintended response to such warnings. Put into common parlance, health warnings fail, in no small part, because they encourage rebellious acts, whereby teenagers in particular are attracted to risky behaviour that’s been explicitly proscribed by adults in positions of authority.

There’s also plenty of scientific evidence about such warnings’ failure with non-tobacco products. For example, a public-health campaign in the 1980s to inform British teenagers about the risks of heroin use served to – guess what? – attract risk-taking youths to the drug. More recently, the US Centers for Disease Control found that alcohol consumption among pregnant women rose after the introduction of warnings about the dangers of drinking during pregnancy.

The overall international experience with health warnings on consumer products strongly suggests that further health warnings on plain tobacco packages would be ineffective, perhaps even counterproductive. This means that space for enhanced warnings cannot serve as a justification for plain packaging.

And, what about the fourth truth? Both British and Canadian policymakers acknowledged that the risk of violating intellectual-property rights was a factor in their respective decisions to either reject or defer consideration of plain packaging. Yet, there are those who argue that such a claim about the intellectual-property rights of tobacco trademark owners is simply wrong. By placing intellectual-property rights in an appropriate context, and explicating limitations on such rights, it’s claimed that plain packaging can be seen to be an entirely justified limitation on tobacco trademarks.

In truth, however, a very close inspection finds that respective international treaties simply, but critically, do not permit the sweeping seizure of trademarks that plain-packaging policies would initiate. We have examined each of the relevant international trade agreements that deal with intellectual-property rights and the ways in which various provisions of these agreements bear on the question of plain packaging. In each instance, plain packaging falls foul of key principles and provisions of the relevant treaty.

Under these treaties, plain-packaging proponents must provide compelling evidence that the registered trademark – the packaging, itself, not the product inside the package – causes public harm and that eliminating the trademark is an effective remedy because it will produce tangible public-health gains. Public-health advocates and regulators advance several arguments designed to circumvent IP rights protections. They assert that tobacco is a ‘uniquely dangerous product’, and that since ‘the public interest’ underlies all intellectual property agreements, broad health concerns trump trademark rights.

Not so. These treaties make quite clear that public health is not a superior good to intellectual property. Intellectual property is a human right, according to the UN Declaration on Human Rights – and a joint World Trade Organisation/World Health Organisation study confirmed this key point.

In practice, such a highly subjective determination would undermine all intellectual-property rights. In addition, this argument incorrectly focuses on the product’s alleged harm, evading the actual legal question at issue: does the registration of the trademark, itself, cause harm?

Advocates also argue that IP treaties govern registration of trademarks, but not their use, and therefore governments can lawfully restrict or prohibit trademark use. The main purpose of safeguarding trademark registration, however, is to permit their use. Prohibiting trademark use would essentially void all IP treaties and such moves have been rejected in previous WTO arbitration cases.

The three key aspects of the plain-packaging debate – whether tobacco packaging creates harm through promoting smoking and/or discouraging cessation; whether plain packaging is an effective remedy for such harms; and whether plain packaging is a violation of intellectual-property rights – are inseparable. The questions of the nature of the empirical evidence about traditional tobacco packaging and plain packaging are not peripheral, but central to whether plain packaging warrants an exemption to the protections offered by intellectual-property rights.

If it can’t be shown that packaging is a genuine harm and that plain packaging is an effective remedy for that harm, then plain packaging fails as a justifiable exception.

I am convinced that the current international intellectual property regime doesn’t allow for properly registered trademarks of long use to be suppressed except where it can be shown there is compelling scientific evidence that the restriction of the trademark is not just the only way of dealing with the danger to public health, but will, in fact, also work. So, the studies that purportedly prove a causal connection between ads and youth consumption must actually prove that advertising is a significant factor in relation to all other possible causes of youth smoking.

However, the relatively small body of studies directly focused on plain packaging that are cited by advocates don’t show advertising to be a significant factor. These studies also suffer from fatal methodological flaws, overstate the persuasive power of advertising, understate young people’s appreciation of the purposes of advertising and fail to consider and refute other, truly consequential smoking-initiation factors, such as education, income, family structure and peer influence.

And, here are the two most egregious unintended consequence of trampling on trademark rights: the first public-health irony is that tobacco trademarks lead, as in other economic sectors, to product innovation, which provides the consumer the opportunity to purchase lower-risk products. But plain packaging will be a dagger blow through the heart of harm reduction. Unless, of course, one asks cynically, that’s really the whole point?

The second public-health irony is that, once tobacco companies successfully sue this and other governments for damages, the taxpayer will be in the position of having to bail out financially the tobacco industry.

Now, in an uncharacteristic moment of professional optimism, I do think that, by properly marshalling and appropriately communicating the facts about plain packaging and graphic warnings, it’s still possible to strike a powerful blow for regulatory common sense. Surely, all most of us can agree that a government is entitled to its own opinion on the best way to reduce smoking. But it isn’t entitled to its own evidence.

In practice, plain packaging will fail for one very simple, yet unavoidable, reason: the absence of any real-world foundation to suggest that it is either necessary or, indeed, helpful.

Something else George Orwell said was that there are times when telling the truth becomes a ‘revolutionary act’. Recently, I have been reminded that challenging the conventional wisdom on plain packaging leads, in certain quarters, to one being viewed as akin to something unpleasant on the bottom of someone’s shoe. This is because in a politically correct world, where health promotion is the new secular religion, public-health heresy is now the most revolutionary of acts.

Patrick Basham is the co-author, alongside John Luik, of The Plain Truth: Does Packaging Influence Smoking?. The article is an abridged version of a speech delivered at the Institute of Economic Affairs to mark the launch of The Plain Truth.

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