gunman?; . NHF MOUTH lg- "Irstugfs'ggm" - CAUSE MOUTH . a .. ..- DlspAses - ml: u?-I an PIZTLR JACKSON PFTIR JACKSON 4. . v; EXCESSIVE HEALTH WARNINGS TOOLKIT August 2013 HOW TO USE THIS TOOLKIT This toolkit presents a range of messages, arguments and evidence on the subject of oversized health warning labels We have designed it to help you develop strong, effective, evidence-based messages to address proposals for excessive health warnings in your markets. Obviously, one size doesn?t fit alldecide which messages and examples resonate with your audiences and to tailor them to your speci?c needs. As the name suggests, these are just tools, not an all-inclusive set of pre-approved materials. Please pay attention to the ?caution signs? we have used to indicate caveats with, or limitations of, certain messages and examples (for example, quotes from tobacco industry - scientists, even if published in peer-reviewed journals, may not be considered as credible by certain interlocutors). Also, we would encourage you to share with us any information media articles, stakeholder views, government decisions), which supports our views and could be included in the toolkit. Your feedback on what worked and what did not is also invaluable. All the information used in the toolkit is included in the CA Libragg, as is the toolkit itself. Be sure to check there to get the latest updates. We intend to update the toolkit on a regular basis and will keep you posted. Kind regards, Your Regulatory Policy Strategy team OUR POSITION 5 A. PMI supports factual and informative HWLs on all tobacco product packaging. 5 B. 30/30 TEXT HWL ARE SUFFICIENT AND THEY FULFILL FCTC REQUIREMENTS 6 OVERSIZED, SHOCKING WARNINGS DO NOT REDUCE SMOKING RATES 7 A. There is no relationship between HWL size/content and smoking rates7 B. Experts have concluded that there is no evidence that excessive health warnings reduce smoking rates 11 C. Proponents have failed to show that increasing the size of health warnings reduces smoking rates 14 WHY LARGER OR MORE GRAPHIC WARNINGS REDUCE SMOKING 18 A. Smokers and non-smokers are widely aware that smoking is harmful and addictive 18 B. Binding court decisions in many countries con?rm that smokers are widely aware that smoking is harmful and addictive 19 C. Tobacco control advocates also agree that there are limits to ever ?louder? warnings: 20 D. What are the implications of this overwhelming awareness? 20 COUNTERING ARGUMENTS THAT LARGE, GRAPHIC HEALTH WARNINGS ARE NECESSARY TO INCREASE 22 A. People typically avoid and/or deny shocking, fear-based messages .. 22 B. Studies prove that extreme fear-based warnings can lead smokers to rate the dangers as less serious 24 C. Warnings that go too far send a message of ?Forbidden Fruit" 27 D. Youth in particular may rebel against authoritarian warnings 27 E. Even tobacco control advocates note the need to further research ?reactance? to health warning labels before increasing HWL size or intensifying HWL content 28 F. Less is more 29 G. Health warnings that intentionally elicit upsetting emotional responses go too far and are inappropriate 29 H. Enlarging HWLs should not be an ?end in itself? 31 5. ENLARGING HWLS IS PLAIN PACKAGING BY STEALTH 31 A. Advocates of oversized health warnings admit that plain packaging is the ultimate goal 32 B. Tax stamp requirements in combination with larger health warning requirements could mean plain packaging through the back-door 34 6. OVERSIZED GRAPHIC WARNINGS MAY BE ILLEGAL 35 A. Oversized HWLs violate international treaties protecting intellectual property 35 B. Oversized HWLs deprive trademark owners of valuable intellectual property 36 C. Excessive HWLs infringe manufacturers? rights to free commercial speech 37 7. UNINTENDED CONSEQUENCES 4O 8. OVERSIZED HWLs CREATE .BUSINESS UNCERTAINTY FOR A RANGE OF INDUSTRIES 40 9. PROPORTIONATE, EFFECTIVE ALTERNATIVES SHOULD BE ADOPTED, NOT EXTREME, INEFFECTIVE, EXCESSIVE HEALTH WARNINGS 41 Index of Key Words 42 Annex A Court statements on the universal awareness of the health risks of smoking 43 Annex - PMI submissions on excessive health warnings sizes 55 OUR POSITION PMI supports factual and informative HWLs on all tobacco product packaging. Warnings should be used to inform and remind that smoking is addictive and causes disease. We generally defer to governments on the content of such HWLs. In fact, even where local law does not require health warnings, we voluntarily place them on packaging. This is clearly stated on our website [m Wee-mew: VJ _il .- w-n any Marne 1&8me Rm?l?mn tobacco mature-I Health Wamlng Labels a AA EB .Qrle-?m TWIN Far} . Ralutedlntemnl Link: anmun?'u mostcm MMEMHW orptional mm Cannon-o Em mm. tam WW.MW minimum maismmam PimH-wnm ?Wm"mwm l?newpnse lswansure manned and arTooacco the new: ?fl-clad snaking . 5?39de Towers mt: Fruits Hmn?emxlion PM lM-lOIndFi'Fl'. erlevnm Inc-1mm masmcumder Inerto?l?mllm ngahm mummy: mammal! lam memw ?human-cm nun-chm mun-m em Famrammbeclmm?n lemme nmm?mxam "Warning smokers and nonsmokers about the serious adverse health effects of smoking is a fundamental objective of tobacco regulation and has been a core component of government tobacco policy for decades in many countries. We support this policy. B. 30/30 TEXT HWL ARE SUFFICIENT AND THEY FULFILL FCTC REQUIREMENTS FCT Article 11: Packaging and Labelling Health warnings ?should be 50% or more of the principal display areas but mincuuminuL shall be no less than 30% of the principal display areas" and ?may be in the form of or include pictures or pictograms.? TOBACCO WATCH Article li. Package Warnings ?was Panama 30 so 30 omzaooa 56 48 63 man-moo Fehlm so_ so so Dean-.3008 0 2 ?@1309 50 no . 35 3? _7 82952009 Eulaaoog maaoos . 7 1??:ch 0 M52009 The FCA Ilsts Imam countries as 5? mam . . 90100 30 30 30 Mavzamo complying With the 50 so 50 mam . - FCTC mlnimum as as 53 size requirement T: 5: 23:: ih k'f d) I _o mum? El. Ul' IS isle . 50 50 50 mamas so so so Fen4.2009 ?nd 52 45 53 Source: Bostic, C. (Ed) Tobacco Watch: Monitoring Countries' Performance on the Global Treaty, Geneva, Framework Convention Alliance, 2012. 2. OVERSIZED, SHOCKING WARNINGS DO NOT REDUCE SMOKING RATES A. There is no relationship between HWL size/content and smoking rates Many countries with smaller, text-only health warnings have lower smoking rates than countries with larger, pictorial health warnings. M?l?luum Mariam Marih?r" Mill'?l?m Roken kt . rzaa VS 2% dodeluk longkanker Netherlands Belgium 24% 27% Bolton la dodolilk Smoking rates in 2012 Sweden Portugal Netherlands Germany Belgium France Romania Spain Text?only warnings Graphic health warnings Data sourced from Eurobarometer (2012), Speciai Eurobarometer 385/Wave E8771: Attitudes of Europeans towards tobacco. Many countries with smaller, text-only health warnings have seen greater rates of decline in smoker rates than countries with larger, pictorial health warnings. Change in smoking 2012 vs 2009 Countries in red had implemented graphic heel?l warnings at the time the survey was conducted. .5 c? ?59 {?03 Je? Smoking increased ?e Mo Smoking decreased -8 change Data sourced from Eurobarometer (2012), Spemal Eurobarometer 385/Wave E8711: Attitudes of Europeans towards tobacco? In May 2011, the United States CDC published a study which showed that thinking about quitting was highest in Vietnam and Bangladesh countries with HWL 30% on the front and back and text only. Among those who noticed the warning, thinking about quitting 75% -- 72% 71% 70% - Brazil Vietnam Bangladesh 3.0): i 39!, Marlliurn ?vi?i?m'wm 3.1% ?w . 50/50 0/100 30/30 30/30 and and text text graphic graphic only only Data sourced from Centers for Disease Lontroi (CDC), Cigarette Package Health Warnings and Interest in Quitting Smoking 14 Countries, 2008-2010. Morbidity and Mortality Weekly Report, Vol 60(20), 27 May 2011. Oversized, graphic health warnings are not necessary to reduce smoking rates, as demonstrated by a comparison of Canada and the US. In 2010, smoking rates in the US where lower than in Canada despite the larger, graphic health warnings. Adult smoking prevalence 50% back GHW (Since 2000) 22.4% 18.7% 13.2% 13.7% 15.7% Canada 17.5% 16.1% 15 4% 151% 14.3% US mg? ~10%sude Text-only 2001 2003 2005 2007 2009 2010 2011 +Canada -I-United States Data sourced from OECD Health Data 2013 available al oecd nm 10 B. Experts have concluded that there is no evidence that excessive health warnings reduce smoking rates Canada Cigarettes cause fetal lung disease mama-raiser.- 1? (Iliinili ms lanl mu ?mlm ii ii gg? Fm'i Flamin- 1994 - 2000 2000 - 2011 In 2004, Gospodinov and Irvine were the ?rst to assess the impact of larger health warnings in Canada. Gospodinov and Irvine used data from Health Canada's Tobacco Use Monitoring Surveys to examine whether introduction of larger graphic HWLs in Canada had any effect on smokers. The study found that the new, larger warnings had no statistically signi?cant effect on either smoking prevalence or consumption. ?Have the ?heavy-duty? warnings on cigarette packages in Canada, had a signi?cant impact on the prevalence or intensity of smoking in the period following their introduction? have not been able to detect any significant prevalence effects, much as the unconditional data Source: Gospodinov and Irvine, "Giobal heaith warnings on tobacco packaging: Ewdence from the Canadian experiment", Topics in Economic Analysis and Poiicy 4:30 (2004) Casey B. Mulligan, Professor of Economics at the University of Chicago also found that the larger, graphic health warnings introduced in Canada in 2000 played no role in reducing smoking prevalence: "[TJhe 50 percent graphic warnings introduced in December 2000 played no discernible role in the decline of smoking rates or reduction in cigarettes smoked in Canada. Rather, smoking rates 11 and cigarette consumption in Canada fell after December 2000 because of seasonal factors, cigarette price increases, and an on-going trend for non-price factors. Source: Mulligan C, Smoking Behaw Canad Before and After the 2000 Tobacco Warnings, University of Chicago, 11 (co by PMI). Professor Mulligan also compared health warnings in the USA (small, text?only) to Canadian health warnings (large, graphic) and found: "Canadian-U5. smoking rate comparisons do not support theI hypothesis that the warnings displayed on cigarette packs sold in the United States discourage smoking less than the warnings displayed on packs sold in Canada. Source. Mulligan C, Report on Health Warning Label Size and Content, Umversuty of i hicago, 2010 (commissmned by PMI). Note: Despite the evidence, Canada opted to again increase the size of HWLs to 75% on the front and 75% on the back. The Washington Legal Foundation commented on the lack of evidence for the proposal in Canada to increase the size of HWLs: ?At its core, Health Canada?s proposal assumes that graphic warnings are effective in decreasing smoking rates. But that assumption, no matter how well-intended, is just that - a bald conclusion that is assumed without any basis in evidence. And while some reports have con?rmed that graphic warnings or larger font sizes in warnings can increase a consumer?s awareness of the risks inherent in smoking, no long-term studies have demonstrated that larger graphic warnings actually alter smokers? behaviors. Source: C. Andrews, Washington Legal Foundation, ?Bigger Warning .abel Reqwrements Disserve Canadian Consumers and Undermine Property Rights October 1? Around the world PMI commissioned Jos Kleijnen to conduct a systematic review of the evidence on HWLs and the impact of size. A ?systematic review? uses explicit methods to minimize bias in order to produce more reliable ?ndings that can be used to inform decision making. In our view, this report is the most de?nitive work to date that independently and objectively summaries the evidence on larger health warnings. The conclusion: ?Insufficient evidence exists to support a hypothesis that Wl. size of 50% or greater are effective at reducing smoking uptake, prevalence or increasing quit rates. Current studies are of mixed quality and do not provide convincing evidence that HWLs of at least 50% reduce smoking prevalence or uptake or increase quitting more than HWLs of 30% do.? Source: Kleijnen Systematic Reviews Ltd., Systematic review of the effectiveness of an increase in the size of tobacco health warning labels on cigarette packs in reducing smoking, June 2011 (commissioned by PMI). Available at: Deloitte In 2010 BAT commissioned a report from Deloitte to assess whether larger health warnings have reduced consumption. Deloitte found that requiring larger, graphic health warning labels "has not had a statistically significant direct impact upon Iicit tobacco consumption." Source: Deloitte, Tobacco packaging regulation An international assessment of the intended and unintended impacts, 2011 (commiSSIoned by BAT). Available at: Deloitte looked at 27 countries over 14 years for this assessment. They also specifically looked at Australia where health warning size increased in 1995 and again in 2006. There was no correlation between increasing the size of health warnings and reduced smoking rates. C. Proponents have failed to show that increasing the size of health warnings reduces smoking rates Although they are nearly unanimous in their support of larger, shocking health warning labels, tobacco control experts occasionally acknowledge that larger, more gruesome health warnings do not reduce prevalence or consumption. ?nite) 001mm Hammond (2011) In May 2011, Canadian tobacco control advocate David Hammond published a review of studies on the effectiveness of HWLs in the journal, ?Tobacco Control.? He concludes: "larger warnings with pictures are signi?cantly more effective than smaller, text-only HOWEVER, none of the studies he reviewed showed that larger HWLs reduce smoking rates. In fact, only 1 study of the 94 he reviewed even attempted to measure whether larger HWLs reduce smoking rates, and it found that they do not. That study, by Gospodinov and Irvine, concluded that the large, graphic health warnings in Canada, implemented in 2001 "have not had a discernible impact on smoking prevalence." Source: Hammond D, Health warning messages on tobacco products. a reVIew, Tobacco Controi, published onllne 23 May 2011. The other 93 studies measured people beliefs, thoughts, or speculations that larger, more lurid health warnings are more effective at reducing smoking rates. 14 EUROPE In September 2010 RAND issued the ?nal report on "Assessing the Impacts of Revising the Tobacco Products Directive." In that report, RAND found that there were ?no quantifications available of the effect of larger labels on prevalence. While RAND speculated that larger warnings ?could reduce prevalence by even more than 0.5 in the end, RAND concluded that increasing the cigarette pack health warning sizes from the current size to 50%, 75% or even 100% of the pack would have no additional effect in reducing prevalence 157) (the ?no size change? option having the same effect on prevalence as enlarged pictorial health warnings). Source: RAND Europe, Assessmg the Impacts of Revising the Tobacco Products Directive, Study to support a D6 SANCO Impact Assessment Final report, September 2010. ?ftc lntematloml Tobacco Control Poiky 5mm Pmlect The ITC In 2009, researchers published the results of a large long-term study of 17,000 smokers in Canada, USA, UK and Australia, which was designed to examine the impact of health warnings on study participants' awareness of the warnings, emotional reaction to the warnings, intention to quit, and actual quitting. The researchers, outspoken proponents of large, shocking warnings, found that larger, more prominent warnings increased warning awareness, emotional reactions, and participants? intention to quit. From that, they concluded that larger warnings were more ?effective? and recommended that governments should increase the size and prominence of health warnings. However, they noted (almost in passing) that 15 the total impact on smoking prevalence is too small to estimate accurately. Source Borland et How re ctions to 'Igarette packet health warnings influenc quitting Findings from the Four Countzy Survey, Addictlon, 104 669 675, 20 f/x Note: Borland nevertheless concludes by advocating for larger, more . shocking HWLs. US Appellate court decision on FDA 50/50 GHWs Studies cited in support of larger health warnings typically measure people?s beliefs, intentions, perceptions and/or subjective reactions to graphic health warnings. In 2012 a US appellate court rejected this type of evidence. . The court invalidated a regulation requiring 50/50 graphic health warnings. The Court found that the Food and Drug Administration which proposed the regulation, could not show that 50/50 graphic health warnings reduce smoking: has not provided a shred of evidence that the graphic warnings will ?directly advance? its interest in reducing the number of Americans who smoke.?1 . The Court noted that many countries around the world have implemented large graphic health warnings, but criticized the FDA for not producing any evidence that such warnings have reduced smoking in any of these countries: makes much of the ?international consensus? surrounding the effectiveness of large graphic warnings, but offers no evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them.? . The Court examined and rejected survey-based studies relied on by the FDA and advocates of larger health warnings referring to such studies as ?questionable social science? because they did not measure actual smoking behavior and instead drew conclusions based on study participants? thoughts or intentions when they saw graphic health warnings: 1 RJ. Reynolds et al. v. FDA, No. 11-5332 (D.C. Cir. Aug. 24, 2012), available (here). 15 I ]t is mere speculation to suggest that respondents who report increased thoughts about quitting smoking will actually follow through on their intentions. And at no point did these studies attempt to evaluate whether the increased thoughts about smoking cessation led participants to actually quit. The Court examined smoking prevalence data from Canada, which the FDA argued supports its claims, and determined that the data does not prove that graphic health warnings reduce smoking: concedes it cannot directly attribute any decrease in the Canadian smoking rate to the graphic warnings because the Canadian government implemented other smoking control initiatives, including an increase in the cigarette tax and new restrictions on public smoking, during the same period. The Court examined the regulatory impact assessment and found that it also failed to provide evidence that graphic health warnings reduce tobacco consumption. The RIA predicted a 0.088% drop in US smoking rates following the implementation of graphic health warnings which the FDA admitted was ?not statistically distinguishable from zero." The Court concluded that the RIA ?essentially concedes the agency lacks any evidence showing that the graphic warnings are likely to reduce smoking rates. In March 2013, the FDA decided not to appeal the decision to the US Supreme Court and instead decided to revise the health warning labels, in essence accepting the conclusions of the appellate court. 3. WHY LARGER OR MORE GRAPHIC WARNINGS REDUCE SMOKING A. Smokers and non-smokers are widely aware that smoking is harmful and addictive This has been con?rmed by research2002 2004 2006 2008 2010 I Very or somewhat harmful I Not harmful Source: Gallup, Smokingaspx. As a statistical matter, it is virtually impossible for any poll or public opinion survey to reach 100%. To quote a report on smoking from the US Surgeon General, it may be ?unrealistic to set a goal above 90 percent of smokers for public knowledge about any health effect of smoking. Source: Koop, C.E., Reducing The Health Consequences Of Smoking 25 Years Of Progress Report Of The Surgeon General, US Department of Health and Human Services. 1989. The fact that in 2010 a small percentage of adults continue to believe that smoking is not harmful - despite signi?cant efforts over many, many years to impart such 18 information suggests that a small percentage of the population may resist accepting any information on the health effects of smoking. Evidence from Canada indicated that 98 percent of adult smokers were aware of the harmful consequences of smoking and only 3 percent of adult smokers failed to recall correctly one of the current package warnings. Source: Health Canada, EnVir?Ol?llCS Research Wave Surveys, 2000 We suggest that as a preparatory matter, you investigate whether any materials, surveys or reports are available to demonstrate that in your market there is nearly universal awareness of the risks of smoking. B. Binding court decisions in many countries confirm that smokers are widely aware that smoking is harmful and addictive Below is sample of quotes from court decisions around the world which highlight the universal awareness of the risks of smoking. A complete list of examples for many countries around the world is available at Annex A. - Argentina is a public and notorious fact even for small children-, that cigarettes are made of tobacco and that they contain nicotine which when under combustion create tar and carbon monoxide, which are known to be, under any hypothesis, very harmful elements to health. The health effects caused by smoking, as well as by passive smoking, are well known because of the ample information that there is on the matter, in radio and television, as well as newspapers and magazines, and textbooks.? Source: Perrotta v. Massalm Particulares 5A., ClVil and CommerCIal Court of Appeais of Department of Zarate? Campana, May 23, 2013, affirming trial court dismissai Germany ?The risks connected with smoking have been common knowledge for decades, are typically connected with consumption of this product, and are principally accepted by consumers.? r- I it of Wiesbaden, Court of sta fMarch 7, 2000. Scotland am satisfied that at all material times, and in particular by 1964, the general public in the United Kingdom, including smokers and potential smokers, were well aware of the health risks associated with smoking, and in particular of the view that smoking could cause lung cancer. y. Imperial Tobacco Limited, Court of Sessnon of Edinburgh, Decnsion of May U0 Tobacco control advocates also agree that there are limits to ever - ?louder" warnings: ?The ?rst step in tobacco control is to inform people of the dangers of smoking. But repeating this to a population that knows it, two thirds of whom already want to quit, is of questionable value. Sour-e Hastings, MacFadyera. =he limitat ns ges Ta-acco ontrol' 2002; 11:73 75). Note: Hastings is still an outspoken advocate of larger warnings. He was writing in the context of public information campaigns, not health warnings. What are the implications of this overwhelming awareness? 1- Excessively large health warnings are not necessary. 2- Telling people what they already know won?t reduce smoking rates, and may cause people to ignore the warnings. 3- Given this widespread awareness, and given the many other options at governments? disposal for reminding people of the health effects of smoking, taking more pack space is unjusti?ed. It is illegitimate for governments to use package warnings to coerce behavior, and certainly should not coerce behavior by taking private property. 4. COUNTERING ARGUMENTS THAT LARGE, GRAPHIC HEALTH WARNINGS ARE NECESSARY TO INCREASE Advocates have argued that large health warnings with images are more impactful and therefore more effective. Although we generally defer to governments on the content of health warnings, we must recognize and counter the argument that increasing the size of pictorial HWLs will increase their impact. This section can help you counter such arguments. A. People typically avoid and/ or deny shocking, fear-based messages This principle has been acknowledged by since as early as 1953: ?the overall effectiveness of a persuasive communication will tend to be reduced by the use of a strong fear appeal. Source: 1 Jams and S. Feschbach ?Effects of fear?arousing =?0mmumcatnoris', Journal Abnormal and Social 65 (1962). Extensive tobacco health warning research shows that consumers avoid or deny the extent of harm caused by smoking. i. A 2012 research report on the current EU health warnings found: ?Many smokers consistently find ways to deny that health warnings apply to them personally. Even if they accept the truth of the assertions the warnings make they often claim they are not ready to change their behaviour 'yet? or that they accept the risk as an integral part of their decision to smoke.? When assessing new, ?stronger? warnings, researchers still found that: ?Many denied that some of the new or more strongly expressed warnings were true, downplayed the scale of the problem or chose to assume that the warnings did not apply to them. In 2008, the UK introduced graphics health warnings on tobacco products. Researchers found that the only resulting change in smokers? behavior was an increase in the number of people who covered up the pack. Among youth the impact was ?negligible.? ?The only significant change in behavior was that more adult smokers reported using a technique to avoid seeing the messages. It therefore remains to be seen whether these emotional responses are translated into behavioural change in the future. Among young people, the impact of picture health warnings was negligible. 8) Gregory Connolly, a well-known tobacco control advocate from the Harvard School of Public Health, noted that the implementation of graphic health warnings in Canada led smokers cover up the warnings but did not impact smoking prevalence: "In Canada, the warning labels produced two they got noticed and people bought little sleeves to put over their cigarette packets. But smoking rates did not go down." The increasing availability of pack sleeves in countries with larger or graphic HWLs demonstrates that smokers attempt to avoid or deny ?louder? messages: "Since the implementation of graphic labels in Singapore, sales of metallic cigarette cases have been brisk, especially amongst the young adult smoking population. Smokers in Singapore have the habit of leaving their cigarettes on tables as they light up in social settings, and by using such cigarette cases, the 'offensive' graphic warnings are kept out of sight. Legislation: What Resuicliuns Me Time? Graphic Warning Alternatives SIOWGS to cover health wanting: sold In Australia Source: Globai Tobat'ro: Will Legislatwn Kill the Industry? Euromonitor International, June 2009. B. Studies prove that extreme fear-based warnings can lead smokers to rate the dangers as less serious In 2006, a study of 214 people compared the effects of EU text HWLs with proposed EU graphic HWLs. The researchers report that, when faced with graphic health warnings, ?smokers rated the threatening dangers as less serious,? were less frightened, were less inclined to let their smoking behaviors be influenced in the desired direction and were less likely to make a conscious effort to shield themselves from the anti-smoking warnings. ?For the smokers, there appeared to be no significant effects of adding visual to verbal warnings on cigarette packages.? Source: Jansen et al., ?The scarier. the better?" in Carimer et al. Ed. Information and Document Desagn: Varieties on Recent Research (John Benjamms: Amsterdam 2006), p. 141. 24 ?In general, when smokers are faced with death-related anti-smoking messages on cigarette packs, they produce active coping attempts as re?ected in their willingness to continue the risk of smoking beha vio ur. Source: Hansen et al., ?When the death makes you smoke: a terror management perspective on the effectiveness of cigarette on?pack warnings?, Journal of Experimental Social 46: 226-228 (2010), p. 228. Indeed, researchers have found that warnings that were designed to shock induce fear, or were death-related back?red. "[IJronically [such warnings] caused more positive smoking attitudes among tobacco consumers who based their self-esteem on smoking. Source: Hansen et al., ?When the death makes you smoke: a terror management perspective on the effectiveness of Cigarette on pack warnings?, Journal of Experimental Socual 46: 226 228 (2010). students who were heavy smokers reacted to thoughts of death by taking even harder drags on their cigarettes graphic warning labels on cigarettes might not have the intended effect on everyone who sees them. Source: SClentific American, "How Smokers Think about Death," 28 September More recent research from the University of Maastricht (Netherlands) suggests that large, fear?based health warnings such as the gruesome pictorial warnings on tobacco packaging in some countries may actually increase smoking: ?There is no scientific evidence that graphic warning labels, such as the familiar warnings on packs of cigarettes, are effective. Even the graphic images used in other countries to deter smokers are not having the desired effect of making people smoke less. The images and warnings can even be counterproductive: they actually make some people smoke more. Source: Maastricht University, Smokers will not be put off, 13 August 2012 (here); press release for Peters, (3., Ruiter, R., Kok, G., Threatening communication. a critical re-analysis and a revised meta-analytic test of fear appeal theory, Heath Review (2012). Note: The lead author of this study has publically denounced the fact i}5 that the tobacco industry has made reference to this work. We note that the authors are not categorically rejecting the use graphic health warnings. PMI also does not categorically reject the use of graphic health warnings. Rather the authors suggest that the warning text and images should be carefully researched to ensure that they are effective and that adverse consequences do not result. We agree. A 2007 study looked at the impact of shocking HWLs on smokers? perception of risk. In the study, 102 smokers were exposed to either an anti?smoking message with highly distressing images or to the same message using less upsetting images. The research found participants had lower personal risk estimates with the more shocking image, and spent less time looking at and processing the message itself. Table II. Means and standard deviations of risk variables for the full sample and both conditions. 'Full sampler Distressing Non-distressing Variable mean image mean image mean mull?M Total personal risk estimate 23.43 (8.72) 20.84 (8.04) 25.92 (8.69) Total average student risk 29.73 (5.07) 28.68 (4.77) 30.73 (5.19) Comparative optimism 6.29 (6.40) 7.84 (6.18) 4.81 (6.31) Time to read messa 155.25 (68.12) 117.00 (48.87) 192.02 (63.89) Message evaluation 4.00 (5.69) 2.18 (5.86) 5.75 (4.99) message evaluation score of 0 denotes a neutral evaluation. Source. Brown et al., The Inhibitory --:fect of a distressmg anti smoking message on 4 perception'. smokers,? P-ychology and Health 22: 255 268 (2007) #39. C. Warnings that go too far send a message of ?Forbidden Fruit" This is called reactance" and it occurs when an individual sees something as limiting his or her freedom and attempts to NOTICE pUSh back against this limitation. One way to - .. restore personal liberty is to engage in the very in . . . . . behawor that IS beIn forbidden. Ps cholo Ists PLEASE, 00 t: ,0 9 ave ocumen lS enomenon many years. .- ?Warnings that produce 'fhal'lk You . *5 reactance, serve as signals for risk-taking opportunities [and] may produce behaviour that is exactly the opposite of that intended by the placement of the warning, at least among certain groups of individuals. Such effects are clearly unintended, but their consequences, under some circumstances, can make the use of warning messages less desirable than no message at al . Source: D. Stewart and I. Martm ?Intended and unintended consequences of warnings messages?, Journal of PUbllC Policy and Marketing 13 (1994): 1 19, p. 13 D. Youth in particular may rebel against authoritarian warnings ?[AJdolescents are less receptive to messages targeting behavioural Adolescents simply do not like having their choices limited and their options clearly delineated. [Strong, explicit anti-smoking messages] may even boomerang and have negative effects on adolescents? health behaviours. Source: Grandpre et al., ?Adolescent Reactance and Anti?Smoking Campaigns: A Theoretical Approach?, Health Communication 15 (2003): 349, 366. 27 Miller et al. surveyed 1,831 students aged 10 to 20 and found: ?Increasing reactance was significantly associated with increased susceptibility. This study con?rms warnings raised earlier by Grandpre et al. (2003) that as adolescents age, reactance should play an increasingly important role in determining the responses they will have to persuasive messages. Given that 15-and 16-year-olds have increased tobacco-related knowledge, increased awareness of behavioral options, and an increased ability to engage in tobacco-related behaviors, the designers of antismoking messages should expect this population to be particularly sensitive and resistant to antismoking messages, especially if the messages use controlling language. Source: Miller et al., ?Identifying Principal Risk Factors for the Initiation of Adolescent Smoking Behaviours: The Significance of Reactance," Health Communication 19 (2006): 241?252. E. Even tobacco control advocates note the need to further research ?reactance" to health warning labels before increasing HWL size or intensifying HWL content ?Reactions to warnings could also be associated with reductions in desired outcomes as well as facilitating them. Some researchers have argued that strong warnings and various public health campaigns may inadvertently create reactance that could potentially inhibit desirable behaviour including quitting it is important to have population-based research to rule out reactance effects to cigarette packet health warnings, especially as the enhancement of pack warnings is a key provision of the World Health Organization '5 Framework Convention on Tobacco Control.? Sourc Borland et al., ?How reactions to Cigarette packet health warnings in?uence itt nclings from the ITC Four Country survey?, Addiction, 104' 669 675, p. 675 (2 09) x. F. effect is ?weak", but nevertheless concludes that population-based Note: Borland notes that research to date has shown that the research is necessary to rule out the possibility of reactance. Less is more ?Shouting? health messages, by using larger warnings or more emotive images, is unlikely to reduce smoking rates and may even be counterproductive. Common sense shows that people do not learn better when parents, teachers, bosses shout information at their audience. don ?t personally know of anyone quitting smoking because of some disgusting pictures on cigarette packs. What happens is probably a combination of two things. The first is acclimatisation. After some initial disgust, the smokers get over it and are able to ignore the images. The second is indignation. They don?t like anyone treating them like ignoramuses who don?t know that smoking is hazardous to health." +9 i, Dally (Malaysaa), "Hit smokers where it hurts," 1 December 3 10 Health warnings that intentionally elicit upsetting emotional responses 90 too far and are inappropriate "In?icting emotional distress and making packaging unpleasant do not constitute provision of health information. If the government wants to ban cigaretteschooses to not do so, no part of the government should try to in?ict emotional harm on those who choose to consume them. et at. Submissxon to FDA pro ar ings for cigarette packages and advertisements, 2011 "Apparently the theory behind such fulsome antismoking propaganda is that while everyone knows tobacco is unhealthy, some people need to have their noses rubbed in that fact as pungent/y and unpleasant/y as Few things in modern American life are as ubiquitous as the pressure to stay away from tobacco. Everyone gets the message, 29 which is why the great majority of Americans no longer smoke. The dwindling few who do don?t need to be nagged about it by the government of the United States of America. The nanny-state may make some decisions easier, but it is not compatible with a free society. It isn?t Washington?s function to wipe your nose just because your nose needs wiping." Comme'rtary by Jeff Jacoby in the Boston Globe, "Th ed WBFi'ergS,' 17 November 2010. Some tobacco control experts themselves recognize that warnings that shock are not appropriate or helpful: ?In Massachusetts we never insulted smokers, we never called them stupid, Gregory Connolly said. "You don 't go over the top and try to scare the smokers. You have to communicate in a really empathetic way. Boston Globe, "Will graphic cigarette warnings help or hurt?" 15 November 010 I Note: Connolly is an outspoken advocate of many tobacco control . measures. Tobacco control experts themselves recognize that ?searching for ever-more powerful warnings is fruitless? ?a paradigm shift is needed?: ?The ?rst step in tobacco control is to inform people of the dangers of smoking. But repeating this to a population that knows it, two thirds of whom already want to quit, is of questionable value [T]here comes a point where the theatre-goer shouting ?fire? is reduced to the irritation of a malfunctioning alarm. Furthermore, searching for evermore powerful warnings is fruitless. There is no ultimate deterrent in smoking, no mother of all health warnings that will finally alert smokers to the error of their ways. A paradigm shift is Source: Hastings cFadyen, ?The limitations of fear messages. Iobacco Control. 2002, 11:73 Note: Hastings is an outspoken advocate of extreme measures. The article cited discusses anti?smoking media campaigns rather than warning labels on cigarette packs, and Hastings' views quoted are therefore limited to warning content. The paradigm shift referred to is from warnings and fear messages to relationships and branding for quit support, in order to not become a ?hectoring parent." H. Enlarging HWLs should not be an ?end in itself" In Canada, a tobacco control expert expressed the view that: ?there are limits in the ability of further regulations to advance public health objectives.? He suggested that some tobacco control advocates appeared to be: ?lobbying for impractical [regulatory] goals based on an ideological View of appropriate interventions rather than a pragmatic public health and ?regulatory measures, such as blanket advertising bans, graphic package warnings, or industry de-normalization, have come to be seen as an end in themselves rather than as a means of achieving improved public healt A ana co gu Wll/m Mitch ii Law Rewew vol 4 604 ph Note: The Canadian government recently decided to require larger HWLs anyway. See discussion, below. 5. ENLARGING HWLS IS PLAIN PACKAGING BY STEALTH Plain packaging is the inevitable outcome of ever-larger HWLs. That?s particularly evident when governments propose placing warnings across the center of the pack. There is no evidence that placing HWLs in that position will reduce smoking rates; it demonstrates only a clear intent to destroy brand value by limiting the manufacturer?s ability to display its brand. A. Advocates of oversized health warnings admit that plain packaging is the ultimate goal A Thai tobacco control advocate used this slide to praise Uruguay?s 80% health warnings as ?de facto" plain packaging and recommended the approach in other countries. New Uruguay Warning A ?de facto? plain packaging? Effective Mach 1,2010 Ilmnnuh Source: "New Uruguay Warning A ?de facto? plain packaging?" presentation by Dr. Pakit Vathesatogkit, ASH Thailand at the Regional Workshop on the Implementation of FCTC, Singapore, 22-24 Feb. 2010. 32 On 11 September 2009, Luk Joossens the Tobacco Control Advocacy Of?cer for the Association of European Cancer Leagues, posted a video on YouTube in which, in response to a question on whether health warnings are working, he answered: "Our purpose is to have plain packaging, generic packaging, only health warnings, the brand name only once, white package and pictorial health warnings. That's the future of health warnings and then they will work. Source: L. Joossens, Association of European Cancer Leagues. YouTube, 0" I Search Browse Upload Association of European Cancer Leagues (ECL) Interviews Tobacco Contrc EuroCancerLeagues avideos Subscribe . II ?101 1:31i1z43 33 B. Tax stamp requirements in combination with larger health warning requirements could mean plain packaging through the back-door Large health warnings in combination with tax stamp requirements could result in de facto plain packaging. This would effectively extinguish the property rights of tobacco manufacturers. For arguments regarding the downsides of plain packaging, please refer to the Plain Packaging tool kit and 34 6. OVERSIZED GRAPHIC WARNINGS MAY BE ILLEGAL Note: The Law Department has developed detailed legal arguments against excessive health warnings that apply in many markets. We do not include those arguments here and instead focus on key CA messages about legal problems with excessive health warnings. We will be happy to help you develop these messages further. A. Oversized HWLs violate international treaties protecting intellectual property Article 20 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides that: "The use of a trade mark not be unjustifiably encumbered by special requirements, such as use in a manner detrimental to its capability to distinguish the goods of one undertaking from those of other undertakings." Analyzing a Canadian proposal to require 75% HWLs, the Washington Legal Foundation concluded that: ?Increasing the size of graphic warnings to 75% would signi?cantly diminish the value of the trademarks for the various brands in violation of Article 20 [of TRIPS Andrews, Legal Foundation, ?Bigger Warning Label equurem Disserve Canadian Consumers and Undermine Property Rights?, October 2010 Note: Despite the evidence, Canada opted to again increase the size of HWLs to 75% on the front and 75% on the back. Although TRIPs allows for measures "necessary to protect public health", larger HWLs don?t work, may back?re, and aren?t necessary as shown in other sections of this toolkit. 3'5 B. Oversized HWLs deprive trademark owners of valuable intellectual property Considering a Canadian proposal to require 75% HWLs, the Washington Legal Foundation concluded that ?Permitting government regulators to essentially con?scate the vast majority of a legal product?s label is a serious violation of property Trademarks and copyrights associated with the branding and packaging of tobacco products provide substantial goodwill of signi?cant value to both the owners of the property rights and the investors of those burdensome graphic warnings on tobacco products would significantly undermine intellectual property laws.? Scurce: (L. Andrewa Wa-hmgt gal Foundation, ?Bigger Warning Label Reqwrements DISSEWE anadian nsumers and Undermine Property Rights", October 1, 2010, 1, Note: Despite the evidence, Canada opted to again increase the size of HWLs to 75% of the front and 75% of the back of a pack. Court proceedings in the EU suggest that manufacturers and consumers have the right to use the majority of the tobacco package for brand imagery and information. In 2001, the EU adopted 30% front 40% back health warnings and other packaging requirements.2 When provisions of the Directive were challenged, the European Court of Justice upheld those warnings because they ?leave sufficient space for the manufacturers of those products to be able to affix other material, in particular concerning their trade Source: 491/01, The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco Ltd., 10/12/2002, para 132. 2 The size requirements are larger for countries with more than one national language: 32% front 45% back for two national languages Finland) and 35% front 50% on the back for three national languages Belgium). 36 During the hearing, the Court found it persuasive that ?the labelling requirements .. leave tobacco manufacturers free to apply their trademarks and other intellectual property to the majority of the pack surface. 60 to 70% of the most visible surface of the pack may remain free for the application of trade marks and other intellectual property 40 to 50% of the other most visible surface of the unit packet may remain free Source: Report for the Hearing, Case The Queen Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco Ltd., para 211 (emphasis added). The Commission defended 30% front 40% back HWLs on the basis that ?the Directive leaves large surface areas of the packaging of tobacco products available for the application of trade marks and designs." Source: Report for the Hearing, Case C-491i01, The Queen Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperiai Tobacco Ltd., para 222. C. Excessive HWLs infringe manufacturers? rights to free commercial speech FDA is blocked from requiring graphic warnings on cigarette labels AMMth?-gm h-?dwhwudmaqm Wrin- 1-me Hill- we - l-h?t l- . ill. ?is? ?ill?n' zin- The right to use trademarks on packaging is protected by law (both national and international), and constitutions. Oversized health warnings violate those protections. In June 2011 the United States Food and Drug Administration published a regulation requiring graphic health warnings covering the top 50% of the front and back panels of cigarette packs. Five tobacco companies sued the FDA claiming that the new graphic health warnings are unconstitutional because they infringe the companies? rights to free commercial speech. The court argued that while the Government is permitted to mandate warnings in order to ensure that consumers are informed and not misled to ?compel speech?), it may not mandate warnings which are intended to advocate for the Government's policy views and to ?nudge" people into better behavior. For a variety of reasons the court found that the Government?s objective was the latter, and that expropriating private property for that purpose was unconstitutional. Importantly, the court stated that the Government can and should encourage healthier choices, but it cannot force others to do the same: ?[AJIthough the Government may engage in advocacy using its own voice, it may not force others, such as Plaintiffs, to serve as an unwilling mouthpiece.? In its decision, the Court in the R.J. Reynolds case cited a 2011 US Supreme Court decision positioning which the Supreme Court stated: ?The State can express [its] own view through its own speech. But a State?s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. Other key points from the decision that may prove helpful in framing arguments against oversize HWLs include: The Government provided no evidence that the 50/50 GHW would reduce smoking rates the own regulation estimated a decrease in smoking rates of rate which is not statistically distinguishable from zero.? In an earlier decision by the court on the same case, the Court recognized that there was no evidence from other countries of the effectiveness of warnings similar to the FDA's proposals. 0 The graphic ?warnings" did not actually constitute warnings to the public - they were used to ?deter individuals from purchasing the package.? - The images were not meant to promote informed choice ?they were crafted to evoke a strong emotional response to advocate a change in behavior.? . The images were not ?purely factual or accurate? referring to speci?c images, the court found that many did not convey any factual information. For example, the Government provided ?no support to show that autopsies are common consequences of smoking. The court took particular note that the tobacco manufacturers offered a variety of less restrictive alternatives which would allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech or encroaching on private property. Specifically: . The Government could disseminate its anti-smoking message itself. Although this may impose costs on the Government ?citizens may not be compelled to forgo their [First Amendment] rights because to save money.? 0 The Government could change the display requirements by reducing the images to just 20% of the packaging or requiring warnings only on the front or the back of the packaging. - The Government could change the content ?by selecting graphics that conveyed only purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer.? The Government could increase cigarette taxes. 0 The Government could improve efforts to prevent unlawful sale to minors. Sou Reynolds Tobacco Co FDA, 2"-12 S. Dist XI 26257 (D DC F-=b 29 2 2) Speech as protected by the US Constitution. You may want to investigate whether, in your market, the right to commercial free speech or similar protections could provide a solid foundation on which to argue that oversized health warnings infringe a company?s right to commercial free speech. Similarly, local law may provide a basis for arguing that oversize health warnings are not designed to inform consumers, but rather are part of an inappropriate government advocacy campaign. NOTE: the Court?s decision rests on the interpretation of commercial free 7. UNINTENDED CONSEQUENCES Oversized warnings similarly interfere with the ability of consumers to distinguish between tobacco brands, as packs from Uruguay (80% HWLs front and back) illustrate: Fllh'llililw, PllHiE MGBIR .. i M. aP?wpl-Aw. . I ?2.31?la-hixpur.? um.? pmvuhj mal .1 tunic, npsnu denim-m? manta. an IDE mom?- 5. Oversized warnings could even make it more dif?cult for consumers to tell real from genuine products. Considering a Canadian proposal to require 75% HWLs, the Washington Legal Foundation concluded that ?Decreasing a consumer?s ability to use trademarks to differentiate products would actually hinder Health Canada?s goal of reducing smoking. Strong trademark recognition assists consumers, retailers and law enforcement actors to distinguish between bona ?de products and Source: C. Andrews, Washington Legal Foundation, ?Bigger Warning Label Requurements Disserve Canadian Consumers and Undermine Property October 1, 2010, p. a 8. OVERSIZED HWLs CREATE BUSINESS UNCERTAINTY FOR A RANGE OF INDUSTRIES -- Tobacco HWLs have been used as a precedent for HWLs on other consumer products, including alcohol and certain types of food. The Regulatory Policy team has developed a Slippery Slope presentation with various examples to illustrate and substantiate the argument that tobacco control 40 and tobacco control activists are increasingly applying the same tactics and proposals to other product categories. 9. PROPORTIONATE, EFFECTIVE ALTERNATIVES SHOULD BE ADOPTED, NOT EXTREME, INEFFECTIVE, EXCESSIVE HEALTH WARNINGS It is not enough to tell governments that excessive health warnings will not work; we must tell them what will work. Less restrictive alternatives advance our agenda and allow policymakers to reject excessive regulatory measures but not appear weak on tobacco control. In some cases, emphasizing that less restrictive alternatives can achieve the same obiective can be very persuasive as demonstrated in the US court case (RJR vs. US FDA, 2012) cited above. By highlighting obligations set out in the FCTC and your market?s achievements (or under?achievements) in these areas, one could reasonably argue that attention needs to focus elsewhere. The Regulatory Policy team has Article 12 Article 14 Article 16 an Alternatives Education, Cessation i . Minimum age T00lkit (W) to help communication. support laws, licensing you argue these points, training and programs and enforcement public awareness 41 Index of Key Words Alternative measures 41, 43, 55 Argentina 19, 43 Australia 13, 15 Avoidance 22, 23 Awareness 15 BAT 13, 37 Borland 28, 29 Brazil 44 Brown 26 CanadaCarliner 24 Centers for Disease Control (CDC) 9 Cigarette cases 23 Connolly 23 Coping 25 Court decisions 19 Deloitte 13 Denial 22 Emotional reaction 15 Environics 19 EU 24, 36 Eurobarometer 7, 8 Euromonitor 24 European Cancer Leagues 33 European Court of Justice 36 FCA 6 FCT 6, 28 FCT Article 11 6 FDA 29 Finland 45 France 46 Germany 19, 47 Gospodinov 11, 14 Grandpre 27 Hammond 14 Hansen 25 Health Canada 11, 12, 19, 40 Imperial 37 Irvine 11, 14 Italy 48 Jansen 24 Kazakhstan 50 Kleijnen 13 Malaysia 29 Miller 28 Mulligan 11, 12 Netherlands 51 Philips 29 Plain packaging 31 PMI Position 5 Poland 52 Quitting 15 RAND 15 Reactance 27 Risk perception 26 Singapore 24, 32 Sleeves See Cigarette cases Spain 53 Sweden 54 Thailand 32 TRIPS 35 UK 15 Unintended consequences 40 United Kingdom 20 Uruguay 32Washington Legal Foundation 12ANNEX A Annex A Court statements on the universal awareness of the health risks of smoking Argentina is a public and notorious fact even for small children-, that cigarettes are made of tobacco and that they contain nicotine which when under combustion create tar and carbon monoxide, which are known to be, under any hypothesis, very harmful elements to health. The health effects caused by smoking, as well as by passive smoking, are well known because of the ample information that there is on the matter, in radio and television, as well as newspapers and magazines, and textbooks. Source: Perrotta v. Massalin Particulares S.A., Civil and CommerCIai Court of Appeals of the Department of Zarate Campana, May 23, 2013, affirming trial court dismissal. is a NOTORIOUS FACT and vastly known to any person that tobacco causes addiction and is harmful to eventual allegation of ignorance on the matter by an able person, and particularly, by smokers of cigarettes (whatever the brand or characteristic) constitutes a grave insult to intelligence or to the common sense of the average citizen.? Source: De San Joaquin Massalin Particulares S.A., Court of the Department of Zarate- Campana, November 15, 2012, dismissmg the case. Brazil ?Smokers have knowledge of the harmful effects of smoking because, for years, they have been discussed and disclosed in the is a conscious knowledge of the harms that it can Source: Ferreira Lima v. Philip Morris Brasil S.A. and Souza Cruz, Court of Appeals, State of Rio Grande do Norte, July 29, 2005, affirming trial court dismissal. ?[TJhe risks of for decades have been disclosed by the medical community and by the media, [and are] a public and notorious fact." Source: Rocha II v. Morris Brasii, 12th Civil Court of Porto Alegre, Rio Grande do Sul, Final DeCIsmn of April 29, 2005, dismissing the case. Canada ?From newspaper clippings and scienti?c documents from the period, it appears that since 1964, however little a person might have been receptive to the information, one could not have been unaware that the use of tobacco was harmful to one?s health.? (p7) ?Applying these principles to the facts proven in the presentcase, it must be recognized that for a very long time it has been generally known within the population that the use of cigarettes is harmful to 1964, a widely distributed American scientific report already indicated that prolonged and intensive use of tobacco contributed to premature death, as well as to cardiac diseases, lung and other cancers, and could cause asthma and fatal coughs. Even at that time, information was disseminated showing that pregnant women who smoked would give birth to lower weight children. (p15) Source: CECllia Letourneau v. Imperial Tobacco Ltd. and Allan Ramsay CIE le. Quebec Small Claims Court, March 23, 1988, dismissing the case. 44 Finland ?Society has been conscious of the harmful effects of tobacco for quite some time. In the 1950?s medical studies concerning the harmful effects of tobacco became more common and this knowledge was carried to Finland, to the Medical Board, to the tobacco industry and the state. Even before this, the harmful effects of tobacco were quite generally known. Evidence has been presented in this case about tobacco education given in schools as early as the 19305 and 40?s. Smoking in schools was prohibited. After this, general awareness through the press and literature has increased considerably, and today the knowledge about the harmful effects of smoking is nearly 100 percent. Source: Aho v. Suomen Topakka 0y and RettIg Oy, Court of First Instance, Ruiing the case, 26 Feb 1992, af?rmed by the Supreme Court 7 Jun 2001. ?The District Court finds that it is not at all possible that the plaintiff would have been unaware of the dangers of smoking even in [the] Source: Lmdroos et al. Amer Group Plc, District Court of Helsmk'. Oct 10, 2008 Chile the fact that smoking is harmful to the health has been known by any minimally informed person, long time before the regulatory requirements of including printed warnings in cigarette packs were introduced 45 Source: Rada v. Philip Morris Chile SA. and Chlletabacos S.A., Civil Court of Santiago, December 16, 2008, dismissing the case. Finland Court of Appeal ?nds on the grounds of all circumstances presented in the matter that already since the latter half of the 19505 it had commonly at least among the adult population been known that cigarettes and smoking cigarettes caused serious health hazards, even if precise or exact information on these health hazards and the risks of contracting different diseases would not have been known. (p78). Source: Salmmen v. Amer Group of. ai, Helsinki Court of Appeal, May 31, 2010, affirming dismissal. France the 19505, the press has widely publicised the dangers of tobacco, as scientific knowledge gradually confirmed the in?uence of tobacco on cancer pathologies. Source: Berger v. SEITA, Civil Court of B?ziers, Feb 2, 2004, dismissing the case. person] who was 27 years old in 1976, could not possibly have been unaware at the time of the harmful effects of excessive tobacco smoking, not only due to the legal information displayed on cigarette packs, but also due to all of the information relayed via the media (the press, radio and television) for everyone?s knowledge.? Source: Gmrlain et ai. SEITA, Cour de cessation, Decision of November 20, 2003, p. 4 E: Germany ?The risks connected with smoking have been common knowledge for decades, are typically connected with consumption of this product, and are principally accepted by consumers.? Region rt fW 513 i fM ?Everyone knows that smoking may cause severe health damage in the long term that may even be lethal, and that smoking may lead to dependency that impedes one?s ability to quit smoking.? ou be 14 200 23x Israel it is impossible to ignore the fact that, throughout the entire relevant period of time, cigarette packs in general, including packs of Light Cigarettes, bore a warning which was intended to warn smokers as a whole of the dangers to health which are involved in cigarette smoking. It should also be added that the Petitioners have not pointed out any publication by the Respondents in which it was argued that Light Cigarettes are less harmful than Ordinary Cigarettes.? (Section 12, p.15) I see it, the Court cannot determine, in a lofty, patronizing manner, that an entire population group although it is exposed to a great deal of information with respect to the damage caused by smoking, is aware of its smoking habits, and chooses, notwithstanding the risks involved in smoking, to continue to smoke cannot determine that this population group is composed of utter idiots, who ignore all of the information around them, only because the term ?light? is displayed on the pack of cigarettes.? (Section 19, p.21) Source. El Roy District Court Ruling, November 0, 20! dIsmissmg the ase ?Smoking cigarettes, be the composition thereof as it may, is extremely hazardous to health. I do not believe that there is anyone who is not aware of this fact, including the consumers of the cigarettes.? (p6) source ?iumberg, District Court Ruling, May 17, 2010, dl s: 3 Italy is documented in the case records and in any case it is a well- known fact that the harmful effects of smoking had been common knowledge since the first decades of the last ?p7 Source: Manfredi II v. BAT Italia AAMS, the Italian State and Philip Morris Holland B. V., Civil Court of Florence, March 15, 2013, dismissing the case. ?That cigarette smoke is harmful to health and that it can cause cancer must be considered common knowledge, a fact which has been spread, well-known and manifest for many years. As early as in the nineteenth century, medical science clearly ascertained that pipe smokers frequently developed cancers of the lower lip, tongue and oral cavity In the 505 and 605 this data, well-known to the scientific world, became well-known to the political world and to mass public opinion. We must therefore gather that: a) the fact that smoking is damaging to health is well-known to the community; b) the community was aware of such fact well before 1990? (p10) Source: Tonutto v. ETI (now known as BAT Italia and AAMS, Civil Court of Rome, April 4, 2005, dismissing the case. ?It is possible to state with certainty that ever since the 19305 the risks that smoking involves and the dif?culties of stopping smoking were already largely known to the entire Italian society and were 48 diffused at every social level and throughout the entire Italian territory. Source: Zappettim v. ETI p.A, and The Italian State, Cm! Court of Brescna, :sion of My 25, 2005. ?Over and above the scienti?c knowledge and degree of education of individual consumers, it appears dif?cult to allege that any smoker has used the product without having been sufficiently aware of the potentially damaging effect of cigarette smoke and of the objective dif?culty of stopping its use. Under this aspect the affirmation that the average consumer is not aware that repeated and constant smoking can lead to a kind of addiction is not reasonably sustainable. This fact, too, has always been part of common experience, capable of ready confirmation by anyone through normal life relations.? Source. Schlaratura E-T: Civil Court of Rome IO of January 8, 2000 Japan "As described in the rulings above, it is this Court?s acknowledgment that it has been generally recognized that long-term active smoking causes various harms to people?s physical health, such as increasing the morbidity of cancer of internal organs including lung cancer, disorders of the circulatory, respiratory and digestive organs and other diseases, and increasing the morbidity of premature delivery, complication of pregnancy, low birth-weight delivery, and so on, if smoked by pregnant women. (p10-11) Source: Hara v. Japan Tobacco and the Japanese Government, Appeal Court, October 20, 1999, affirming dismissal. Kazakhstan ?It is commonly known and goes without say'ing that smoking is dangerous to health. This knowledge not only relates to the fact that smoking increases a likelihood of diseases, but also to the fact that smoking causes It has been known for many years and by many generations of people, both cigarette consumers as well as Source: Nikitm v. BAT et al., district Court of Karaganda, Demsson of Jun:- 7. If,? Korea ?1964-1975 As noted earlier, after the 1964 U.S. Surgeon General Report had formally reported the harmfulness of smoking, the relationship between smoking and lung cancer received extensive coverage in the Korean broadcast media. Thus, it is reasonably deemed that the smokers at hand already became aware of the toxicity of smoking at that (p34) After 1976 ?According to the aforesaid acknowledged facts, at this time, the correlation between smoking and lung cancer was already widely recognized in the public domain. (p34 Source: Family of Su Man Kim v. Corporation and The Republic of Korea, Seoul District Court, January 25, 2007, dismissing the case. ?In view of the facts affirmed above, the epidemiological causal relationship between smoking and the occurrence of lung cancer gradually emerged from research in foreign countries in the 19505, and was first published in the form of official reports in the early 19605; however, this fact alone can scarcely be taken to indicate that the epidemiological causal relationship had been clearly proven at that time, and it is reasonable to consider the deceased to have 50 understood, at last abstract/y, given that smoking by minors was legally and socially prohibited and knowledge of smoking?s harmful effect on the body was widespread throughout society, and to have been aware when purchasing cigarettes that continual smoking could cause various diseases including cancer of the lungs and other respiratory organs, thanks to the change in social understanding, legal control and press reporting. The risk of smoking is a well-known Source: An Bu Kim vs. Korea Tobacco Ginseng, Seoui High Court, Civil Section 9, February 15, 2011, affirming dismissai. Netherlands ?In the Court?s opinion, as from 1963 in any event, the average consumer generally knew that smoking harbored serious, life-threatening risks to health and that once one had started smoking it could be abandoned only with difficulty.? Source: Roemer v. BAT et Court of Amsterdam, Decisnon ember 17, 2008 New Zealand ?Even assuming that a duty to warn existed, liability would have been negated in the present case by the fact that the dangers inherent in smoking cigarettes were a matter of common knowledge when Mrs. Pou began smoking in 1968. (p8) ?The fact that a smoker can become dependent upon (or even addicted to) smoking cigarettes must, in my view, have been a matter that was well within the knowledge of the community well before 1968. The same can be said for the fact that people may not be able to give up smoking.? (p196) '31 have also concluded that, by 1968, those who had even a passing interest in current affairs would undoubtedly have been aware that there was a strong link between smoking and lung cancer. (p199) Source: Janice Pou v. BAT (New Zealand Ltd. and WD HO Wills (New Zealand) Ltd., High Court of New Zeaiand - Auckland Registry, May 3, 2006, dismissing the ca5e. - Norway ?[TJhe risk of cancer is a continual and typical consequence doubt that in the middle of the 19503 it was generally known that tobacco could be harmful?. (p45) Source: Lund v. J. L. Tiedemanns Tobaksfabrik AS, Orkdali District Court, November 10, 2000, dismissing the case. - ?In the opinion of the Court, it was even much earlier than at the end of [the] 19805 that an average citizen was aware that smoking is a habit particularly harmful to health. This knowledge was already available in the 19th Century.? Source. Cichopek Philip Morris Polslca SA. District Court of Krakow, Decision of January 27. 2009, affirmed on appt-al ?Based on the testimony by Roman Rucinski, the Court established that the information on the harmful effects of smoking was published in the press at least in the 19705. The Court?s findings prove that the Claimant failed to observe any warnings of the harmful effects of smoking (whether at the workplace or generally, for health purposes), which he came across in various 5? forms. Therefore, we may not assume that placing a warning on the packaging (at the time when it was not legally required), would have made the Claimant resign from smoking at All the above evidence proves that the Claimant voluntarily used tobacco products, being aware of their potential negative influence on human health due to their properties. (p16) Source: Czarneckl v. Imperia! Tobacco Polska S.A., Reglonal Court of Gore, March 15, 2006, dismissung the case. Scotland am satisfied that at all material times, and in particular by 1964, the general public in the United Kingdom, including smokers and potential smokers, were well aware of the health risks associated with smoking, and in particular of the view that smoking could cause lung cancer (para.[3.1] and Part generally). I am also satis?ed that Mr McTear was aware, in common with the general public, well before 1971 of the publicity about the health risks associated with smoking, and in particular the risk of lung cancer. Therefore by the time he is shown by acceptable evidence to have started smoking the John Player brand of cigarettes he was already aware of the publicity about the health risks. As with many other aspects of his life, he chose to ignore it.? (p9 of the summary statement. Para 4230 of the full judgment). Source: McTear v. Imperial Tobacco Limited, Court of Session of Edinburgh, May 31, 2005, dismissing the case. 11? 3 Spain ?We must also emphasize that, for a long time, there has been abundant information over the dangerous effects of tobacco. What is more, this is a ?rmly established fact necessitating of no further proof. Source. Amaya v. Philip Moms Spam SA . High Court of Appeal of Madrid. Ruling of Apni2,2005. is a legal substance which has carried a warning of the danger on the packet for almost 20 years, the media (press, radio and television) has since the 19605, as evidenced by the verification made in the newspaper archives located in Madrid, been warning that smoking can be harmful to health; therefore, it is a well-known fact that tobacco can be a risk factor which can lead to certain illnesses, particularly if consumed in (p3) Source: Pulgar v. Altadis S.A., Court of First Instance of Barcelona, March 2, 2001. - - Sweden ?The Surgeon Genera/?5] report on the dangers of smoking is proving almost worthless as a deterrent. According to Swedish experts, the report points at already known facts about tobacco smoking. The strong relationship between smoking and different kinds of cancer was known, even in Sweden. Source: Dagens Nyheter, January 23, !964, 16 54 ANNEX Annex - PMI submissions on excessive health warnings sizes Canada: Rothmans, Benson Hedges? submission to Health Canada on Tobacco Products Labelling Regulations (Cigarettes and Little Cigars), 4 May 2011, here. Jamaica: Submission by PMI Distributor in Jamaica to MOH regarding new Tobacco Control Regulations, and in particular, 75/75 GHWs and onerous reporting obligations, 13 August 2013, here. . .