Kelley Lee
(Former Chatham House Expert)

Six million more people have died from tobacco use over the past year so it is perhaps surprising that such deadly products continue to be actively marketed worldwide. Because of the need to counter the mountains of scientific evidence on the harms from tobacco, marketing remains seminal to the industry’s continued prosperity. It is for this reason that the theme of this year’s World No Tobacco Day on 31 May is, 'Ban tobacco advertising, promotion and sponsorship'. 

The tobacco industry describes countries that have adopted tighter marketing restrictions over time as going ‘dark’ and its response has been to refocus efforts on expanding into ‘light’ markets; finding creative ways of circumventing restrictions and fighting the adoption of stronger regulation. The expansion of tobacco companies into emerging markets in Asia, Eastern Europe, Africa and Latin America is well-documented, enabling profits to remain buoyant despite the economic downturn and tighter controls elsewhere. 

Working with their tobacco industry clients, advertising agencies have found new ways of reaching existing and prospective consumers. The widespread use of product placement, sampling, brand stretching, ambush marketing, corporate social responsibility and social media, for example, have all been effective. And the industry has continued to actively challenge new regulations around the world. For instance, the banning of point-of-sale advertising has been met with legal challenges in countries such as Panama, Norway and Ireland, having a ‘chilling effect’ on other jurisdictions. In South Africa, British American Tobacco brought legal action in 2009 against the country’s Tobacco Products Control Act, arguing that an advertising ban was unconstitutional. It called for permission to continue advertising on a 'one-to-one basis', through social media and 'cigarette parties', a request denied by the Supreme Court of Appeals in 2012.

For public health advocates, there is clear evidence that a comprehensive ban on tobacco advertising, promotion and sponsorship leads to reductions in people starting and continuing smoking. It has also been shown to be one of the most cost-effective ways to reduce demand. However, through national comprehensive marketing bans only 6% of the world’s population are not exposed to tobacco advertising, promotion or sponsorship - so much work remains to be done. 

Experience has shown that a broad definition covering all forms of marketing is needed. For example, the importance of cigarette packs as marketing vehicles is why Australia’s plain packaging legislation is being so hard fought by the industry. Tobacco companies see cigarette packs as one of the last bastions of tobacco advertising, serving as mini-billboards to entice smokers. To capture all forms of marketing, legislation that sets out what is, rather than what is not, permitted would be less prone to circumvention.

Moreover, it is clear that implementing Article 13 of the WHO Framework Convention on Tobacco Control requires both national fortitude and collective action across countries. The advent of global information and communication systems, in the form of satellite broadcasting, film distribution and the internet for instance, allows tobacco marketing to become transborder. The failure to adopt a comprehensive ban in one country has the potential to directly undermine public health efforts in other jurisdictions.

There is also the fundamental question about the status of health laws and treaties vis-à-vis trade and investment agreements. While Australia’s plain packaging legislation was upheld as legal by the High Court, tobacco companies continue legal challenges under a variety of bilateral and multilateral trade and investment agreements. For example, this month Cuba joined the Dominican Republic, Ukraine and Honduras, with the former two yet to become parties to the FCTC, in challenging Australia’s new law under the World Trade Organization’s Trade-Related Intellectual Property Agreement (TRIPS). Philip Morris Asia, a global tobacco giant, has also brought an investment claim against Australia under the Hong Kong-Australia Bilateral Investment Treaty.

As usual, all sides watch with interest to see whether health or economic interests will win out. With a mere fraction of the resources available to tobacco companies to market, advertise and promote their products, public health advocates can find comprehensive tobacco control measures a hard sell. The UK government’s recent decision to put plain packaging legislation for England on hold has been criticized for putting economics first. Yet this position contrasts with the Scottish government’s decision to ramp up tobacco control, including plain packaging, to make Scotland 'tobacco free' by 2034. Scotland was the first part of the UK to introduce a ban on public smoking in 2006, the display of cigarettes in large shops in 2013, and a ban on self-service vending machines by 2015. With smoking accounting for more than 13,000 deaths in Scotland annually (the main cause of early death), and costing NHS Scotland about £271 million each year, tobacco control is seen as serving both health and economic interests. It is this message that public health advocates need to market more effectively and widely.