FHB “Sneak Attack” on tobacco meets backlash from Legco, industry

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The Food and Health Bureau (FHB) faces backlash from legislators and the tobacco industry after proposing additional tobacco control measures, that could practically become law as soon as this week, without consultation with the industry.

(Photo credit: COSH Hong Kong)

The FHB proposed three new tobacco control measures to LegCo two weeks earlier, including the enlargement of graphic health warnings on tobacco products from 50% to 85%, the designation of eight tunnel businterchange facilities (BIs) as non-smoking areas (NSAs), and a complete ban on e-cigarettes.

Enlarged health warning has been scheduled for gazetting this week in the form of subsidiary legislation under the negative vetting process. The designation of BIs as NSAs will not be submitted until the fourth quarter this year, and the timetable for the e-cigarette ban is yet to be drawn.

The amendments were discussed at the Panel on Health Services in LegCo on May 18th (Monday). While the latter two proposed legislations were touched on during the discussions, many legislators focused on the rushed nature of the proposal on larger health warnings without public consultation. Professor Sophia Chan Siu-chee, Under Secretary for Food and Health has stated she is open to a public hearing with the industry.

Negative Vetting
So far, the Government has yet to confirm whether the legislation will be delayed, as members demand the Government consult the tobacco industry; but even if it goes as planned, members will have 28 days to discuss the subsidiary legislation and Chairman of the Subcommittee can ask for a 21-day extension at the Council.

During the vetting period, any member can move a proposed resolution to amend the legislation if it abides to Rule31 of the LegCo’s Rules of Procedures – the restriction that keeps members’ hands off the “public moneys” – and is approved by the President of LegCo.

Liberal Party Leader Vincent Fang has not indicated an interest in moving a proposed resolution but urges the Government to talk to the industry players. His demand for a public hearing was supported by many legislators on the panel.

DAB lawmaker Wong Ting-kwong said he met with industry players and claimed the tobacco industry is supportive of the proposed legislation to ban smoking at BIs and to regulate e-cigarettes. He suggested that the Government should enlarge the warning graphics progressively and extend the ‘grace period’ for the new package design from 6 months to 18 months, which was the case in 2005.

Democratic Party’s Helena Wong Bik-wun questioned whether the regulation was necessary, given only a handful of countries in the world have implemented such strict policies.

The Under Secretary admitted the bureau did not consult with the industry before making the proposal. When met with suspicion whether an increase in the size of the warning label would effectively deter smokers, the Under Secretary used WHO guidelines to justify the move. She also said the bureau was open to a public hearing with the tobacco industry.

Surprise, Surprise
The tobacco industry was surprised by the Government’s quick fire move. Bacon Liu Sair-ching, chairperson of the Coalition of Hong Kong Newspaper and Magazine Merchants, met with legislators on the Panel after news broke out on the proposed new measures. “We are against how the Government has handled the issue,” says Mr Liu. “If we don’t voice our demands, it will simply be gazetted and passed by next week.”

Mr Liu believes the entire tobacco ecosystem could be greatly impacted if the policy on larger health warning labels is passed in LegCo. He cites the example of Australia, where he claims smoking did not decline, but instead allowed illicit cigarettes to flood the market. “Without differentiation in packaging, it will become easier to manufacture illicit cigarettes, and more difficult for consumers to tell the difference.”

“You’re forcing business owners like us into a corner by making it easier for illicit cigarettes to sell their products,” says Mr Liu.

The large tobacco firms did not fare any better. Cecilia So, Manager of Corporate Affairs at the Hong Kong office of tobacco industry giant Philip Morris, told HT they were just as surprised, “The six months proposed just isn’t enough for designing and producing new packaging that must be customised in accordance to Hong Kong regulations. We can’t just repurpose designs from other markets.”

“Not evidence-based”
Patrick Muttart, Regional Director of Government Affairs and Corporate Communication of Philip Morris Asia, suggests the amendment is merely driven by ideology, and not evidence, “There’s no consistent and credible evidence that these ultra large graphic health warnings reduce smoking.” Mr. Muttart cites the example of Canada
and United States, despite that the two neighbouring countries each have very different policies with regards to health warnings, both have been comparable in tobacco control results.

Canada currently requires health warnings to take up 75% of cigarette packages. The US has struggled to implement regulations due to challenges from tobacco firms in court. Warnings in the US are mostly limited to small texts on the sides of the pack. “Despite [having more lenient regulations than Canada], you have smoking rates that are a little bit lower in the US, and a smoking decline rate in the US which is a little bit faster,“ explains Mr Muttart.

Mr Muttart believes forcing tobacco firms to concede 85% of their packaging for the Government to promote health risks is an infringement of their intellectual property rights. “This is not driven by evidence or public health, instead what we are seeing is a sneaky back door attempt to launch what I would call an ideological attack on the intellectual property rights of the major tobacco companies.”

“They are dramatically diminishing the ability of companies such as Philip Morris to utilise the brand’s trademarks we have invested so much into building over the years.” says Mr Muttart.

Further actions
When asked what actions the industry might take if the proposals pass in LegCo, Mr Liu says, “We can’t stop what the Government does, but if the government’s actions are irrational, we will organise high-profile actions. They know our demands through the legislators on the panel.”

The proposed public hearing has not been scheduled as of the deadline of this issue.