Health Experts Fume Over Perth Airport’s New Smoking Rooms

Perth has decided to allow smoking at the airport – not in the main concourse but in specially designated smoking rooms.

The West Australian reports that a purpose-built smokers’ area is being built at the southern end of the domestic terminal. It will open next month, with a second facility to follow in the international terminal.

Smoking rooms – usually unadorned and grim-looking places with extractor fans working overtime to suck out as much smoke as possible – are a feature of many airports in Asia and Europe. Even Singapore Changi has one, though Singapore’s official policy is firmly anti-smoking.

Those airports accept that if smokers cannot smoke in flight, they may want to do so on arrival. Airports don’t want smokers sneaking illicit puffs in toilets.

In Australia, the Airports Act 1996 prohibits smoking in any part of an airport in which there is a sign bearing the words ‘No-Smoking’. While designated smoking rooms are permissible, they have been removed from, or not installed at, Australian airports. As a result, desperate smokers rush outside and light up outside terminals, creating clouds of passive smoke that plagues non-smokers and risks the health of children.

Australian Council on Smoking and Health president Mike Daube labelled the prospect of a purpose-built smoking room at Perth Airport “a shocking step backwards”.

The airport should just have banned smoking outright, he said.

Western Australia, famed for its healthy lifestyle, has one of the lowest rates of smoking in Australia.

“We can now confidently predict that smoking will decline from 16.6% nationally (14.8% in WA) to below 10% within a few years, and will then go into freefall,” Daube said last year.

Cigarettes kill one in two regular users, he added.

Written by : Peter Needham

(Source: eglobaltravelmedia.com.au)

Trademark Rights to Extinguish Plain Packaging Bill?

The content of the government’s release on the draft plain packaging Bill offers few surprises. The government thinks stripping tobacco products of any branding will cut smoking rates as part of a basket of anti-tobacco measures, they’ve picked the colour (an allegedly offensive olive green), and the already garish health warnings are going to extend from just the lip to most of the front packet.

But amongst the consultation paper is also an admission of something the government has long denied – plain packaging could acquire the value of trademarks and expose taxpayers to a compensation bill from big tobacco.

At the time of the government’s initial announcement both Health Minister Nicola Roxon and then Prime Minister Kevin Rudd dismissed these concerns arguing they have still-to-be-publicly released “robust” legal advice supporting no IP violations.

The IPA raised concerns that stripping trademarks from packaging could lead to the acquisition of property rights under the Constitution and lead to compensation on “just terms”. But the government’s consultation paper now acknowledges property rights risks exist. Under the banner of “Constitutional provisions” the paper on the “abundance of caution ...

provides that if preventing the use of trade marks on packaging of products is contrary to section 51 (xxxi) of the Constitution, the trade marks can be used, but only in accordance with restrictions (for example, on size and placement) that would be imposed by the regulations”. So far we don’t know what the regulations say.

But the clear intent of the provision is if the High Court recognises plain packaging is the acquisition of a value of a trademark logo they can be used in a restrictive fashion without annulling the rest of the Act.

It's the government's long-winded way of saying "oops".

But despite this admission concerns that plain packaging may violate Australia’s obligations under the World Trade Organisation remain. WTO intellectual property rules require trademarks not be “unjustifiably encumbered [such as] use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings”.

The rules also afford a public health exception “provided that such measures are consistent with the provisions of this agreement”. But by limiting the use of trademark logos the government may not be “consistent”. Especially since justifiability may require strong evidence of the plan's efficacy. If you judge them on their words the government claims they are convinced. But if you judge them on their actions reportedly they last year commissioned a two-year $600K+ plus study to look at the impact of plain packaging on smoking rates.

Documents released under Freedom of Information show that Australia’s intellectual property agency, IP Australia, has found there are around 3,000 trademarks for tobacco and tobacco products of which “a short study shows approximately 1/3 include logos”. Publicly IP Australia has been wary of opposing the government's plain packaging plan but their internal discussions are telling.

One version of a briefing note states “IP Australia considers that plain packaging may not be consistent with Australia’s intellectual property obligations ... [and whether it] would constitute an acquisition of property is debateable”.

Emails between IP Australia trademark officials show that arguing Australia’s international IP obligations would not be violated by plain packaging “is a long bow”. Interestingly IP Australia continues to highlight that “requiring plain packaging would make it easier for counterfeit products to be produced".

Since Australia is the first country to actually legislate for plain packaging the legal risks are significant. And tobacco companies have already made clear their fighting intentions. To date Australia, the United Kingdom, New Zealand, Canada and Lithuania have previously considered plain packaging and rejected it predominantly on intellectual property grounds. Many countries are now watching what happens in Australia before they decide how they will progress.

There are mixed legal views about whether it violates IP rights and only the High Court and a WTO dispute settlement panel will ultimately decide who’s right. But treading with caution is wise. The same FOI documents show IP Australia was only advised of the government’s announcement days before it was public.

At the time the rushed announcement appeared to be a smokescreen to distract the public from the political hammering the government was taking from dropping its emissions trading scheme. In light of recent polls perhaps not much has changed. The only difference is this time the government appears to have acknowledged the very real risks that plain packaging poses to property rights and our international obligations. This honesty is welcome.

Australia's Cigarette War Over Shocking Pack Rules

Australia has unveiled the world's toughest tobacco advertising legislation, which – if it survives a legal challenge by the industry – will force all cigarettes to be sold in plain, olive-green packs covered in health warnings.

Under the new law, which is about to go before parliament, cigarette packets will be stripped of all logos, colours, brand imagery and promotional text. Their only distinguishing feature will be the brand name, printed in a small, uniform font.

The aim is to deprive tobacco companies of the last remaining means of advertising their products, and to make cigarettes less appealing, particularly to young people. Drab olive-green was chosen because research suggested it was the least attractive colour to smokers. "We want to make sure that the glamour that might have been attached to smoking in the past is dead and gone," the Health Minister, Nicola Roxon, said yesterday. "Cigarette packs will now only show the death and disease that can come from smoking. The new packs have been designed to have the lowest appeal to smokers and to make clear the terrible effects that smoking can have on your health."

Plain packaging is also being contemplated by Britain, New Zealand, Canada and the European Union, which are closely watching Australia, particularly how it deals with the legal ramifications. British American Tobacco Australia (Bata), whose brands include Winfield, Dunhill and Benson & Hedges, claimed that the plan would infringe international trademark and intellectual property laws.

A Bata spokesman, Scott McIntyre, said: "The government could end up wasting millions of taxpayer dollars in legal fees trying to defend their decision, let alone the potential to pay billions to the tobacco industry for taking away our intellectual property."

But Ms Roxon said the government believed it was on very strong legal ground. Although smoking rates have almost halved over the past two decades, tobacco-related diseases still claim 15,000 lives in Australia every year, and cost the country about A$31.5bn (£20.3bn).The pared-down cigarette packs will feature lurid images showing the potential health impacts of smoking, with close-ups of rotting gums, blind eyes and sickly children.

Ian Olver, chief executive of Cancer Council Australia, said the move had "the potential to be one of the most significant public health measures in recent history". A spokesman for the Australian Council on Smoking and Health said: "This is a historic day for tobacco control globally. The tobacco industry's ferocious opposition to plain packaging shows that they know how effective it will be. They also know that once Australia has shown the way, other countries will follow."

But the industry claims there is "no credible evidence" that plain packaging reduced smoking. Imperial Tobacco denounced the legislation, and Philip Morris said it would fuel the trade in counterfeit cigarettes. "What company would stand for having its brands, which are worth billions, taken away from them?" asked Bata's Mr McIntyre. "A large brewing company or fast-food chain certainly wouldn't, and we're no different."

Depending on legal challenges, the law will be phased in over six months, beginning in January 2012. The government wants to cut the smoking rate to 10 per cent by 2018.

Will you even be allowed to smoke in your own home?

''The thing the government really should be looking at now is suing the tobacco companies because they have caused such horrendous damage to the health of Australians and continue to do so, and it's the taxpayers who pay for it, let alone the smokers who pay for it with their lives,'' Professor Moodie told The Sunday Age.

In the US, President Barack Obama has asked the Supreme Court to allow the government to sue the tobacco industry for $US300 billion ($A338 billion). Similar lawsuits are under way in several Canadian provinces.

If Australia follows, it will enhance its reputation as a world leader in tobacco reform, having been one of the first to introduce mass media anti-smoking campaigns and health warnings on cigarette packets.

In Victoria, smoking is now banned in bars, restaurants, government schools, cars carrying children, covered train and tram stops, gambling outlets and most public buildings and workplaces.

From January next year, cigarettes will have to be kept either under the counter or behind a closed cabinet in all outlets except specialist tobacconists.

But Vic Zurek, head of Australian Smokers Rights, said aggressive health lobbying had left smokers feeling like ''second-class citizens'' who are being demonised for a legal habit.
He said some doctors were starting to refuse smokers' medical treatment despite his assertion that smokers essentially fund their own healthcare through high cigarette taxes.

''I agree with helping people to quit if they want to and to try and stop kids taking up the habit, but I don't agree, in a free country, in forcing people,'' Mr Zurek said.

''Working people don't have much in life, a beer and a cigarette are just a couple of small pleasures, and we can't even do that any more.''

Tough legislation, coupled with pioneering Quit campaigns, has helped reduce Australia's adult smoking rates from 34 per cent in 1980 to between 17 and 19 per cent today. The preventative health taskforce has set a target of 10 per cent by 2020.

But despite the gains, Quit executive director Fiona Sharkie said there was more to be done.
''Unfortunately we still have 750,000 adults smoking in Victoria and it's still killing 4000 Victorians a year,'' Ms Sharkie said.

Among reforms Quit will push for are laws that would mean cigarettes can be sold only through a limited number of outlets licensed by the state government. Quit is also studying developments in California where local authorities are increasingly mandating that developers build smoke-free properties.

''We get lots of calls from apartment dwellers saying, 'I hate the way the neighbours smoke and the smoke comes into my house when I've got the front door or the window open. What can I do about it?' Consumers are saying that they'd prefer to have a smoke-free building, so we will be looking at that,'' Ms Sharkie said.

A pilot scheme starting in September that will ban smoking in three busy Frankston shopping streets may also be expanded to other areas as Quit has joined with the Heart Foundation in a project to encourage Victoria's 79 local councils to go smoke-free.

A ban on smoking at beaches, campuses and beer gardens, the eradication of cigarette vending machines and a push to have nicotine patches available on the Pharmaceutical Benefits Scheme are further measures in Quit's long-term strategy.

David Hill, director of the Cancer Council Victoria, said public health experts are now debating whether they have achieved all they can in getting smokers to kick the habit.

''Some people believe we're now left with a hardcore group who would still smoke if there was no promotion, no legal sales and the whole thing was banned,'' Professor Hill said.

''The question is when you've reached that point, then you might consider whether you continue the downward pressure.

''But when you look at the data you see it is by far the biggest avoidable cause of cancer death, so we simply can't afford to neglect it.''