Response from ASH Scotland

Introduction

ASH Scotland is the leading voluntary organisation informing and influencing tobacco control policies affecting Scotland. We work to raise awareness about the impacts of tobacco and the activities of the tobacco industry. We are delighted to have been given the opportunity to respond to this consultation. Having campaigned for many years for a ban on tobacco advertising, we are glad to see that the UK Government and Scottish Executive are now preparing to legislate on this issue.

The thrust of the proposed regulations is to be welcomed. Taken as a whole, they indicate a strong commitment to preventing tobacco-related ill health. The document makes a very strong case for what are likely to be controversial measures - particularly in relation to brand sharing. However, ASH Scotland strongly believes that in some instances the regulations must be tightened in order to ensure that they are as effective as possible.

We welcome this Bill, as it covers most media. As previous studies have shown, tobacco advertising bans work to reduce tobacco consumption where they are comprehensive. The authoritative study by the World Bank defines comprehensive as “multiple restrictions on advertising in all media and on promotional activities” , which means that this Bill qualifies as comprehensive. However, ASH Scotland would warn that there can be no such thing as a complete ban on advertising. Legislators must be aware that tobacco companies will inevitably exploit new marketing techniques, and technological developments, to promote their products. Legislators must be prepared to revisit the bill and/or the regulations that are agreed in the light of new circumstances.

ASH Scotland would also emphasise that the current bill must not be diluted through pressure from the tobacco companies. Recent media reports have indicated that the tobacco industry is lobbying heavily for changes to the legislation which would allow them to use databases to contact consumers using Direct Mail. In common with our colleagues in the Scottish Cancer Coalition on Tobacco (SCCOT), ASH Scotland is extremely concerned about this development.

Leaked tobacco company documents show that UK tobacco companies have spent a lot of time and money building up databases in preparation for a ban on advertising. If the bill were to be amended, or regulations introduced that would allow direct mail, these companies could divert their current advertising budgets into targeted mail-based promotion campaigns, massively increasing their activity in this area. Direct mail undermines the two main aims of banning tobacco advertising – to protect children from being exposed to tobacco advertising, and to encourage existing smokers to give up.

There is no way of controlling what happens to the mail once it arrives in people’s houses, or of monitoring what is sent. Direct mail is likely to be seen by children as it comes into their homes. If the database included the information, it would be possible for tobacco companies to target homes where children are known to live. Repeated studies have shown that children who are aware of tobacco advertising are more likely to smoke than those who are not.

Tobacco companies already use direct mail to undermine policies that encourage smokers to give up, such as duty increases and health campaigns. Mailings are sent out around popular quit dates such as New Year and No Smoking Day to dissuade people from quitting. Permitting direct mail will inevitably reduce the effectiveness of the ban, with fewer smokers giving up as a result.

To permit tobacco companies to use databases to target consumers with advertising materials that are otherwise banned under the legislation would undermine the whole ban. ASH Scotland hopes that the Government will continue to resist lobbying efforts to weaken the legislation.

Tobacco Advertising and Promotion (Sponsorship) Transitional (Scotland) Regulations

(i) Timing of the ban

Sponsorship is a major avenue for tobacco companies to market their products. While ASH Scotland welcomes the fact that sponsorship will be banned under the legislation, we are extremely disappointed that “global events” will be permitted to run with tobacco sponsorship until October 2006.

The intention to ban tobacco sponsorship was given in the Government’s White Paper Smoking Kills in 1998. A ban on tobacco sponsorship had been promised in the UK Labour Party’s 1997 manifesto. ASH Scotland believes that the date of 2006 given by the (now annulled) Advertising Directive 98/43/EC was too permissive. We believe that sufficient notice has been given to enable these sports to identify alternative sponsors, and that there is no reason to give these sports more than 3 years longer than domestic events to find alternative sponsors.

ASH Scotland believes that the Government’s statement of its expectation that sports would end tobacco sponsorship at an earlier date if they “are able to” do so [para 18] is well meaning, but lacks teeth. There is no sense that this “expectation” would be monitored or enforced. If given until 2006 to lose tobacco sponsorship, ASH Scotland believes that sports will eke out tobacco sponsorship for as long as possible.

(ii) Controls on Sponsorship during transitional period

If the transitional period remains in place until 2006 as a result of this consultation, ASH Scotland strongly supports the regulation that both visible tobacco advertising at events and tobacco sponsorship will be decreased by at least one fifth each year between 1 August 2003 and 1 October 2006. However, ASH Scotland is fully aware that the estimates for the amount of money currently spent are largely dependent on self-reported data from the sports and/or the tobacco companies involved. Even if the responsibility were to pass to Trading Standards Officers to monitor the space allocated to advertising, they would not have independent figures for previous years with which to compare the data. This lack of data would make the ban very difficult to enforce.

ASH Scotland strongly believes that, if sponsorship is allowed to continue, the terms of the 1995 Voluntary Agreement must be put into regulations. We would dispute the reasoning that a small number of complaints received under the Voluntary Code indicates that the scheme has proved to be satisfactory. The small number of complaints might be a result of the fact that compliance is not systematically monitored or enforced under the current voluntary agreement.

The campaign to remove Imperial Tobacco’s Reg campaign in the early 1990s shows that under the voluntary agreement, making a complaint, and having it upheld, is very difficult. The existing system of voluntary agreements governing tobacco advertising has proved extremely weak, and difficult to enforce. The failure of voluntary agreements to control tobacco companies’ promotional activities is central to the legislation. The tobacco industry must not be allowed to self-regulate on tobacco sponsorship during the transitional period.

Partial Regulatory Impact Assessment

(i) Risks involved

Given the international evidence from countries that have implemented similar legislation, we believe that the Government’s estimate of a 2.5% reduction in tobacco consumption is extremely conservative. The World Bank has estimated a 7% reduction in consumption following an EU ban. Recent research in four countries with a ban introduced as part of a comprehensive tobacco control strategy - Norway, Finland, New Zealand and France – shows that per capita consumption of cigarettes dropped between 14 and 37% after the implementation of the ban.

(iii) Costs

ASH Scotland believes that the tobacco companies’ willingness to support Formula 1 and other sports and events reflects the fact that this form of promotion offers them good returns for their investment. We find it difficult to believe that other businesses would not leap at the opportunity to take up sponsorship in place of the tobacco companies. Formula 1 is already seeking alternative sponsors, with some teams wholly free of tobacco sponsorship. Some commentators have made the point that some brands have steered clear of sponsoring Formula 1 because they did not wish to appear alongside tobacco branding. There is not a precedent for non-tobacco sponsors to offer less support in this field.

We are sure that other sponsors will be found for smaller sports, but remain convinced that the public health benefits of banning all forms of tobacco sponsorship are such that they must take precedence over fears of a negative impact on some events. All tobacco sponsorship must be banned as soon as possible.

Tobacco Advertising and Promotion (Point of Sale) (Scotland) Regulations

At point of transaction

ASH Scotland strongly objects to the proposals that advertising on gantries should be permitted under the terms of the ban. We do not understand why these branded display cases have been exempted from the regulations surrounding point of sale, and why the “comprehensive ban” is being undermined in this way. We do not accept that they are necessary in terms of consumer information. This could be provided on a plain gantry featuring product names (not branding) and prices only. In a gantry, the products on sale can also be clearly viewed, so it cannot be argued that the additional branding is needed to indicate which products are on sale. Indeed, branded gantries that are currently used could actually be argued to distort customer information, by prioritising awareness of one brand’s availability over others. Customer information can be provided by unillustrated display lists, providing product name and price, as indicated [para 39].

Branded gantries are an advertisement. We welcome the decision to ban other forms of advertising at the point of sale, to “protect children in particular” [para 30] but cannot understand why branded gantries are being exempted. Gantries will be as visible to children as other forms of advertising in shops, and will increase children’s awareness of tobacco brands. In turn, this will increase their likelihood of starting to smoke. Allowing advertising on gantries is an unnecessary concession, and undermines the rationale behind the other steps that have been taken on point of sale regulations.

However, if branded gantries are to be permitted, we would strongly support restricting the size of the advertisements carried. As a principle, the maximum area of the adverts permitted at each place of sale must be stipulated, so that multiple gantries are not used to increase tobacco branding in shops. ASH Scotland also believes that the maximum size of each advertisement should be stipulated, along with a minimum size for health warnings. We do not believe that there is any need for advertisement sizes to exceed the size of a unit pack of the product, and ideally we would set the maximum size below this threshold. Evidence from an Australian study showed that point of sale advertising was significantly more likely to result in a “positive brand user imagery” to children aged 10 to 12 than illustrations of the product on offer. If advertising is permitted on gantries, ASH Scotland believes that they should be limited to this form. If “unit size” is used as a measure, the maximum size permitted under this regulation should be stipulated to avoid companies making the packaging bigger to permit larger adverts to appear.

ASH Scotland is particularly concerned that the display of tobacco products is not being addressed in the regulations. We note that gantries could be moved, and tobacco products displayed more aggressively in the light of the regulations proposed, making tobacco products more visible to children in particular. In other countries, including the US, it is common for cigarette displays to be set next to confectionery and snack displays, which have a strong appeal for children. ASH Scotland is concerned that there is nothing in the current regulations to prevent similar practices developing here.

ASH Scotland is also concerned that the current practice of placing tobacco products behind the counter could be replaced by self-service displays, as is common in some other countries. US studies have shown that self service tobacco displays – which are used as a marketing and promotional tool - lead to higher underage access to tobacco than those where the customer has to ask for the product. It would be easy to move gantries from behind counters to create the same effect. ASH Scotland would be extremely concerned if such practices were to develop in Scotland, or elsewhere in the UK.

We hope that the situation will be monitored rigorously, and regulations developed as soon as any problems emerge.

Application of regulations to specialist tobacconists

ASH Scotland does not believe that specialist tobacconists should have been exempted from the legislation in terms of advertising for cigars, pipe tobacco and snuff. ASH Scotland would emphasise that these products also carry a significant health risk, in terms of oral cancer and heart disease in particular, and should therefore not be advertised, particularly in the outsides of shops. We are concerned that this space could be given over to advertising non-cigarette products with a strong youth appeal – for example if the law were changed to permit the sale of oral tobacco similar to Skoal Bandits, or if snuff were to be repositioned as a young person’s product. This has already happened with cigars in the United States, where cigars are a growing market for both adults and adolescents.

Vending machines

ASH Scotland welcomes regulations to remove branded advertisements from vending machines. However, in other parts of the regulations, pictures of products are said to constitute an advertisement [para 38]. We believe that the name of the product and the quantity of cigarettes or tobacco required would provide consumers with sufficient information to make their purchases.

Tobacco Advertising and Promotion (Brandsharing) Regulations

Prohibition of Brandsharing

ASH Scotland is delighted that brandsharing will be covered under the terms of the bill. This is a major advance for tobacco control in Britain. The consultation paper makes a very strong case for including brand stretching in the legislation, covering many of the key points and citing compelling evidence in support of a ban on brandsharing. We welcome the comprehensive definitions of "other feature" outlined in Regulation 2.

We do have reservations about the practical impact of the Exemptions outlined in 4(2), and the circumstances in which the intention to promote a tobacco product is judged. In Scotland, the annual Dunhill Links golf championship is sponsored by the leather goods company Alfred Dunhill. However, the public perception of the event is that it is sponsored by Dunhill cigarettes. This means that the effect is to promote a tobacco product, even if that is not the intention. We also note that Alfred Dunhill’s parent company, Richemont, currently has a 21% share in British American Tobacco, which makes Dunhill cigarettes. It could be argued that Richemont has a strong interest in promoting a leading BAT tobacco brand, and we are very concerned that this is the effect of the sponsorship. We are extremely concerned that the exemptions create a potential loophole which may undermine the ban on tobacco sponsorship.

We believe that this regulation should be redrafted to prohibit brand sharing in all cases where the effect is to promote a tobacco product.

Timing of introduction

ASH Scotland believes that the ban on brandsharing should be introduced as soon as possible, rather than allowing an 18 month transition period. As the paper points out, and as we have already argued in relation to the sponsorship regulations, the tobacco companies have had more than 5 years of notice of the Government’s intentions to ban brandsharing.

While we accept that the European Commission process for reporting the legislation under the Technical Standards Directive may necessitate the delay of these regulations, ASH Scotland believes that the UK Govenrment should not delay implementation of the regulations for as long as 18 months to allow for this. 9 months, three times the minimum period needed for reporting the regulations, should be long enough -especially as other EU Member states already prohibit brandsharing.

Alfred Dunhill claim not to have any connection with tobacco, but consider the following :-

Alfred Dunhill has failed to make a profit for several years, and it has been forced to trim operations - Richemont - luxurious downturn. The company is rather dependent on 'tobacco rich' parent Richemont at the moment.

The two titans Richemont and Remgro are often mentioned in the same breath. Both are headed by the Rupert family and both are fairly dependent on the fortunes of British American Tobacco.

75% of Richemont 2003 net profit derived from 'associated' BAT tobacco interests. On of the most heavily promoted BAT cigarettes is 'dunhill' - aimed particullarly at the potentially huge young far-east market.

Richemont had, until quite recently, been taking steps to 'reduce' their tobacco holdings, but now Richemont chairman says won't sell BAT 'profit driving' stake.

Read more about the tobacco connection in Richemont News

And consider these 'associations with tobacco, past and present :-

The Mixture 965 tobacco tin nomenclature was changed, circa 1994, to:

'Made in the UK in association with Dunhill Tobacco of London'

Dunhill Tobacco of London (a close neighbour of Alfred Dunhill Ltd) is now the holder of most of the, very many, original Alfred Dunhill tobacco trademarks - including some which were temporarily in the hands of Rothmans, the makers of Dunhill branded cigarettes.

According to records held at Companies House, Dunhill Tobacco of London consider their ultimate parent company to be British American Tobacco (BAT) - the new owners of Rothmans.

Alfred Dunhill Ltd today plays down its association with tobacco. "We're a bit embarassed about it" stated chairman Richard Dunhill, grandson of Alfred - read the article here.