Tobacco industry litigation to deter local public health ordinances: the industry usually loses in court

Strategic and contested use of food laws to ban smokeless tobacco products in India: a qualitative analysis of litigation

OBJECTIVE

To understand how food laws are used, contested and interpreted to ban certain forms of chewing tobacco in India.

METHODS

A qualitative study analysing all the tobacco-related litigation under the food laws in India. We used an inductive thematic analysis of the litigation contents.

RESULTS

The tobacco industry systematically deployed litigation to (1) challenge the categorisation of smokeless tobacco products as food, and hence, questioned the use of food laws for regulating these products; (2) challenge the regulatory power of the state government in banning tobacco products via the food laws; and (3) challenge the applicability of the general food laws that enabled stricter regulations beyond what is prescribed under the tobacco-specific law.

CONCLUSION

Despite facing several legal challenges from the tobacco industry, Indian states optimised food laws to enable stricter regulations on smokeless tobacco products than were feasible through use of a tobacco-specific law.

The Application of Philip Morris' Litigation Prevention Program in South Korea

This article is aimed to identify the strategies of Philip Morris (PM, before its spin-off in 2003) and its affiliates in the intervention and prevention of tobacco litigation in South Korea. We analyzed 193 documents obtained from the Truth Tobacco Industry Documents. We found that PM organized and operated the "Litigation Prevention Program (LPP)" to create legal environments making tobacco litigation difficult to initiate and legal networks with local lawyers, media, and even competitors to effectively respond to such litigations. PM developed the LPP based on its legal strategies in the United States against tobacco litigation and disseminated them all around the world including South Korea. In 1999, the first joint action against Korea Tobacco and Ginseng Corporate (KTGC, today known as KT&G), a state-owned tobacco company, began. KTGC asked PM to support their litigation, and PM provided its legal strategies, such as sources to counter the plaintiffs' arguments, through the LPP to KTGC. In front of legal threats, tobacco companies, competitors in markets, jointly fought back the litigation in Korea. Any litigation against a single local tobacco company may confront legal networks of tobacco companies. As a result, no litigation against tobacco companies in South Korea has been able to win over tobacco companies. International legal support including the development of guidelines of Article 19 of the Framework Convention on Tobacco Control is vital for an effective legal fight against tobacco companies around the world.

A Qualitative Study to Explore Perception of Impacts of Preemption of Tobacco Regulation on Counties in Appalachian Tennessee

Bottom-up processes, starting at the local government level, are valuable for more-stringent tobacco control measures. The existence of industry-backed state-level tobacco control preemption in states has impeded policy progress within the state and localities/communities. A national public health goal under Healthy People 2020 is to eliminate state-level preemption across the United States. This study explored individual-level perceptions of the impact of state-level preemption in Appalachian Tennessee-a high-smoking, low-income region. During 2015-2016, a community-engagement project to develop a Population Health Improvement Plan (PHIP) involving over 200 stakeholders and 90 organizations was conducted in Appalachian Tennessee to identify policies/programs to address tobacco use. Using a multifaceted framework approach that focused on prevention, protection, and cessation, interviews and meeting discussions were audio-recorded and transcribed. Content analysis using NVivo 11 was conducted to generate themes. Although the central focus of the PHIP was not preemption, the issue emerged naturally in the discussions as a major concern among participants. Cultural and normative factors in Appalachian Tennessee were identified as key rationales for participants' aversion to state preemption. Thus, repealing preemption would facilitate culturally tailored and region-specific policies/programs to the high tobacco use among Appalachian Tennessee communities where statewide/nationwide policies/programs have not had the intended impacts.

Preemption in Tobacco Control: A Framework for Other Areas of Public Health

Preemption-when a higher level of government limits the authority of a lower level to enact new policies-has been devastating to tobacco control. We developed a preemption framework based on this experience for anticipating and responding to the possibility of preemption in other public health areas. We analyzed peer-reviewed literature, reports, and government documents pertaining to tobacco control preemption. We triangulated data and thematically analyzed them.Since the 1980s, tobacco companies have attempted to secure state preemption through front groups, lobbying key policymakers, inserting preemption into other legislation, and issuing legal threats and challenges. The tobacco control community responded by creating awareness of preemption through media advocacy, educating policymakers, mobilizing national collaborations, and expanding networks with the legal community. Ten of the 25 state smoke-free preemption laws have been fully repealed. Repeal, however, took an average of 11 years.State preemption has been detrimental to tobacco control by dividing the health community, weakening local authority, chilling public education and debate, and slowing local policy diffusion. Health scholars, advocates, and policymakers should use the framework to anticipate and prevent industry use of preemption in other public health areas.

Uneven Access to Smoke-Free Laws and Policies and Its Effect on Health Equity in the United States: 2000-2019

Tobacco control measures have played an important role in the reduction of the cigarette smoking prevalence among US adults.However, although overall smoking prevalence has declined, it remains high among many subpopulations that are disproportionately burdened by tobacco use, resulting in tobacco-related health disparities. Slow diffusion of smoke-free laws to rural regions, particularly in the South and Southeast, and uneven adoption of voluntary policies in single-family homes and multiunit housing are key policy variables associated with the disproportionate burden of tobacco-related health disparities in these subpopulations.Developing policies that expand the reach of comprehensive smoke-free laws not only will facilitate the decline in smoking prevalence among subpopulations disproportionately burdened by tobacco use but will also decrease exposure to secondhand smoke and further reduce tobacco-caused health disparities in the United States.

Addressing NCDs: Challenges From Industry Market Promotion and Interferences

Addressing the determinants of non-communicable diseases (NCDs) is challenged by aggressive market promotion by tobacco, alcohol and unhealthy food industries in emerging countries with fast economic development; and interference by these industries in government policies aimed at containing consumption of unhealthy products. This editorial reviews market promotion and industry interference and classifies them into four groups of tactics: (a) interfering with the legislative process; (b) using front groups to act on their behalf; (c) questioning the evidence of tobacco harm and the effectiveness of harm-reduction interventions; and (d) appearing responsible in the eyes of the public, journalists and policy-makers. Despite active implementation of the Framework Convention on Tobacco Control (FCTC), the tobacco, alcohol and unhealthy food industries use similar tactics to aggressively interfere in policies, with the tobacco industry being the most aggressive. Policy interference by industries are effective in the context of poor governance, rampant corruption, conflict of interest among political and government actors, and regulatory capture in all levels of countries from low- to high-income. In addressing these interferences, government requires the practice of good governance, effective mechanisms to counteract conflict of interests among political and policy actors, and prevention of regulatory capture. The World Health Organization (WHO) Framework of Engagement with non-State Actors can be applied to the country context when engaging private entities in the prevention and control of NCDs.

Tobacco control law implementation in a middle-income country: Transnational tobacco control network overcoming tobacco industry opposition in Colombia

The objective of this paper is to examine the implementation of Colombia's tobacco control law. Methods involved are triangulated government legislation, news sources, and interviews with policy-makers and health advocates in Colombia. Colombia, a middle-income country, passed a tobacco control law in 2009 that included a prohibition on tobacco advertising, promotion, and sponsorship; and required pictorial health warning labels, ingredients disclosure, and a prohibition on individual cigarette sales. Tobacco companies challenged the implementation through litigation, tested government enforcement of advertising provisions and regulations on ingredients disclosure, and lobbied local governments to deprioritise policy responses to single cigarette sales. A transnational network including international health groups and funders helped strengthen domestic capacity to implement the law by; promoting public awareness of Ley [Law] 1335; training local health department staff on enforcement; facilitating health agencies' sharing of educational strategies; and providing legal defence assistance. This network included vigilant efforts by local health groups, which continuously monitored and alerted the media to noncompliance, engaged government officials and policy-makers on implementation, and raised public awareness. Support from international health NGOs and funders and continuous engagement by local health groups enhanced implementation capacities to counter continued tobacco industry interference and ensure effective tobacco control implementation.

Voluntary Smoke-Free Measures Among Oklahoma Nightlife Owners: Barriers and Facilitators

Smoke-free policies prevent exposure to secondhand smoke and encourage tobacco cessation. Local smoke-free policies that are more comprehensive than statewide policies are not allowed in states with preemption, including Oklahoma, which has the sixth highest smoking prevalence in the United States. In states with preemption, voluntary smoke-free measures are encouraged, but little research exists on venue owners' and managers' views of such measures, particularly in nightlife businesses such as bars and nightclubs. This article draws from semistructured interviews with 23 Oklahoma bar owners and managers, examining perceived risks and benefits of adopting voluntary smoke-free measures in their venues. No respondents expressed awareness of preemption. Many reported that smoke-free bars and nightclubs were an inevitable societal trend, particularly as younger customers increasingly expected smoke-free venues. Business benefits such as decreased operating and cleaning costs, improved atmosphere, and employee efficiency were more convincing than improved employee health. Concerns that voluntary measures created an uneven playing field among venues competing for customers formed a substantial barrier to voluntary measures. Other barriers included concerns about lost revenue and fear of disloyalty to customers, particularly older smokers. Addressing business benefits and a level playing field may increase support for voluntary smoke-free nightlife measures.

Defending strong tobacco packaging and labelling regulations in Uruguay: transnational tobacco control network versus Philip Morris International

OBJECTIVE

Describe the process of enacting and defending strong tobacco packaging and labelling regulations in Uruguay amid Philip Morris International's (PMI) legal threats and challenges.

METHODS

Triangulated government legislation, news sources and interviews with policy-makers and health advocates in Uruguay.

RESULTS

In 2008 and 2009, the Uruguayan government enacted at the time the world's largest pictorial health warning labels (80% of front and back of package) and prohibited different packaging or presentations for cigarettes sold under a given brand. PMI threatened to sue Uruguay in international courts if these policies were implemented. The Vazquez administration maintained the regulations, but a week prior to President Vazquez's successor, President Mujica, took office on 1 March 2010 PMI announced its intention to file an investment arbitration dispute against Uruguay in the International Centre for the Settlement of Investment Disputes. Initially, the Mujica administration announced it would weaken the regulations to avoid litigation. In response, local public health groups in Uruguay enlisted former President Vazquez and international health groups and served as brokers to develop a collaboration with the Mujica administration to defend the regulations. This united front between the Uruguayan government and the transnational tobacco control network paid off when Uruguay defeated PMI's investment dispute in July 2016.

CONCLUSION

To replicate Uruguay's success, other countries need to recognise that strong political support, an actively engaged local civil society and financial and technical support are important factors in overcoming tobacco industry's legal threats to defend strong public health regulations.

The Convention on the Rights of Persons with Disabilities as a tobacco control tool in the mental health setting

BACKGROUND

Smoking rates remain high among people with mental health conditions, even though smoking contributes to negative mental health outcomes and is a leading cause of mortality. Many mental health facilities are not covered by smoke-free laws or do not encourage smoking cessation, and people with mental health conditions are often targeted in tobacco industry promotions.

OBJECTIVE

To analyse how the Convention on the Rights of Persons with Disabilities (CRPD), to which most countries are a Party, obliges State Parties to review policies and practices for tobacco control in the mental health setting.

METHOD

Analysis of CRPD Articles relevant to smoking and mental health.

RESULTS

The CRPD contains several provisions that oblige State Parties to address the issue of smoking and mental health, particularly in relation to quit services, smoke-free policies in mental health facilities, health education focused on correcting misperceptions about smoking and mental health, and protecting people with mental health conditions from tobacco industry targeting.

CONCLUSIONS

The CRPD is a potentially powerful tool to promote tobacco control in the mental health context.

Media coverage of smoke-free policies after their innovation

Smoke-free policies are critical to global tobacco control, and prior research on media coverage of smoke-free policies primarily focused on the period when they were first innovated; however, the scientific basis for smoke-free policies has broadened, and how media coverage has changed, if at all, is unknown. The authors characterized the actors, arguments, and favorability of media coverage of smoke-free policies from 2006 to 2009, by content-analyzing 452 news stories in the 4 primary newspapers in South Carolina. Most media coverage was favorable (45%) or mixed (43%) toward smoke-free policies, and negative coverage decreased over time (B = -1.001, SE = 0.326; p = .008). The most prevalent argument concerned the harms of secondhand smoke (44%). A higher percentage of articles mentioned economic arguments against (26%) than for (17%) smoke-free policies (χ(2) = 10.89, p < .01, for the difference between 26% and 17%), and these percentages did not change over time. Advocates and media should improve communications to more effectively represent scientific evidence regarding the null or positive impact of smoke-free policies on businesses.

Old wine in new bottles: tobacco industry's submission to European Commission tobacco product directive public consultation

Between September and December 2010 the European Commission Health & Consumer Protection Directorate-General (DGSANCO) held a public consultation on a possible revision of the European Union Tobacco Products Directive (2001/37/EC). We used content analysis of the tobacco industry's and related parties' 300 submissions to the public consultation to determine if tobacco industry and its allies in Europe are prepared to reduce harm of the tobacco products as their public statements assert. The industry submission resorted to traditional tobacco industry arguments where illicit trade and freedom of choice were emphasized and misrepresented the conclusions of a DGSANCO-commissioned scientific report on smokeless tobacco products. Retailers and wholesalers referred to employment and economic growth more often than respondents from other categories. The pattern of responses in the submission differed dramatically from independent public opinion polls of EU citizens' support for tobacco control policies. None of the major tobacco manufacturers or their lobbying organizations supported any of the DGSANCO's proposed evidence based interventions (pictorial health warnings, plain packaging or point-of-sale display bans) to reduce harms caused by cigarette smoking.

Health preemption behind closed doors: trade agreements and fast-track authority

Noncommunicable diseases result from consuming unhealthy products, including tobacco, which are promoted by transnational corporations. The tobacco industry uses preemption to block or reverse tobacco control policies. Preemption removes authority from jurisdictions where tobacco companies' influence is weak and transfers it to jurisdictions where they have an advantage. International trade agreements relocate decisions about tobacco control policy to venues where there is little opportunity for public scrutiny, participation, and debate. Tobacco companies are using these agreements to preempt domestic authority over tobacco policy. Other transnational corporations that profit by promoting unhealthy foods could do the same. "Fast-track authority," in which Congress cedes ongoing oversight authority to the President, further distances the public from the debate. With international agreements binding governments to prioritize trade over health, transparency and public oversight of the trade negotiation process is necessary to safeguard public health interests.

Implementation of graphic health warning labels on tobacco products in India: the interplay between the cigarette and the bidi industries

OBJECTIVES

To understand the competition between and among tobacco companies and health groups that led to graphical health warning labels (GHWL) on all tobacco products in India.

METHODS

Analysis of internal tobacco industry documents in the Legacy Tobacco Document Library, documents obtained through India's Right to Information Act, and news reports.

RESULTS

Implementation of GHWLs in India reflects a complex interplay between the government and the cigarette and bidi industries, who have shared as well as conflicting interests. Joint lobbying by national-level tobacco companies (that are foreign subsidiaries of multinationals) and local producers of other forms of tobacco blocked GHWLs for decades and delayed the implementation of effective GHWLs after they were mandated in 2007. Tobacco control activists used public interest lawsuits and the Right to Information Act to win government implementation of GHWLs on cigarette, bidi and smokeless tobacco packs in May 2009 and rotating GHWLs in December 2011.

CONCLUSIONS

GHWLs in India illustrate how the presence of bidis and cigarettes in the same market creates a complex regulatory environment. The government imposing tobacco control on multinational cigarette companies led to the enforcement of regulation on local forms of tobacco. As other developing countries with high rates of alternate forms of tobacco use establish and enforce GHWL laws, the tobacco control advocacy community can use pressure on the multinational cigarette industry as an indirect tool to force implementation of regulations on other forms of tobacco.

The pattern of indoor smoking restriction law transitions, 1970-2009: laws are sticky

OBJECTIVES

We examined the pattern of the passage of smoking laws across venues (government and private workplaces, restaurants, bars) and by strength (no law to 100% smoke-free).

METHODS

We conducted transition analyses of local and state smoking restrictions passed between 1970 and 2009, with data from the Americans for Nonsmokers' Rights Ordinance Database.

RESULTS

Each decade, more laws were enacted, from 18 passed in the 1970s to 3172 in the first decade of this century, when 91% of existing state laws were passed. Most laws passed took states and localities from no law to some level of smoking restriction, and most new local (77%; 5148/6648) and state (73%; 115/158) laws passed in the study period did not change strength.

CONCLUSIONS

Because these laws are "sticky"-once a law has passed, strength of the law and venues covered do not change often-policymakers and advocates should focus on passing strong laws the first time, rather than settling for less comprehensive laws with the hope of improving them in the future.

State pre-emption, local control, and alcohol retail outlet density regulation

The substantial health and economic costs of excessive alcohol consumption make its reduction a major public health and economic concern. The Community Preventive Services Task Force, based on a systematic review of the research literature, concluded that restricting alcohol retail outlet density through local land use and zoning regulations is an effective strategy for reducing these costs. Yet the implementation of the Task Force's recommendation is limited by state pre-emption, which determines the extent to which states allow local government to adopt policies and enact legislation. This article summarizes the state pre-emption doctrine, its status in the 50 states pertaining to alcohol retail outlet density regulation, and findings from state legal analyses conducted in six states. Data reflect state laws in effect as of January 1, 2012. Analyses were conducted during the 2012 calendar year. An examination of relevant state laws found five distinct pre-emption categories: exclusive state licensing, exclusive state licensing and concurrent local zoning, joint licensing, exclusive local licensing, and a mixed system. The analysis demonstrated wide variability across the states, ranging from exclusive state pre-emption to broad state delegation of authority to local governments. Pre-emption is applied differentially in many states based on retail outlet characteristics. In many cases, state pre-emption laws are ambiguous in terms of their application, leading to inconsistent and confusing court interpretations. Reforms targeting the adverse impact of state pre-emption on alcohol retail outlet density have the potential for reducing the harm associated with excessive alcohol consumption. State and local public health departments can support such reforms by implementing educational, analytic, monitoring, and technical assistance activities.

Tobacco industry argues domestic trademark laws and international treaties preclude cigarette health warning labels, despite consistent legal advice that the argument is invalid

OBJECTIVES

To analyse the tobacco industry's use of international trade agreements to oppose policies to strengthen health warning labels (HWLs).

DESIGN

A review of tobacco industry documents, tobacco control legislation and international treaties.

RESULTS

During the early 1990s, the tobacco industry became increasingly alarmed about the advancement of HWLs on cigarettes packages. In response, it requested legal opinions from British American Tobacco's law firms in Australia and England, Britain's Department of Trade and Industry and the World Intellectual Property Organisation on the legality of restricting and prohibiting the use of their trademarks, as embodied in cigarette packages. The consistent legal advice, privately submitted to the companies, was that international treaties do not shield trademark owners from government limitations (including prohibition) on the use of their trademarks. Despite receiving this legal advice, the companies publicly argued that requiring large HWLs compromised their trademark rights under international treaties. The companies successfully used these arguments as part of their successful effort to deter Canadian and Australian governments from enacting laws requiring the plan packaging of cigarettes, which helped delay large graphic HWLs, including 'plain' packaging, for over a decade.

CONCLUSIONS

Governments should not be intimidated by tobacco company threats and unsubstantiated claims, and carefully craft HWL laws to withstand the inevitable tobacco industry lawsuits with the knowledge that the companies' own lawyers as well as authoritative bodies have told the companies that the rights they claim do not exist.

Moving from intersection to integration: public health law research and public health systems and services research

CONTEXT

For three decades, experts have been stressing the importance of law to the effective operation of public health systems. Most recently, in a 2011 report, the Institute of Medicine recommended a review of state and local public health laws to ensure appropriate authority for public health agencies; adequate access to legal counsel for public health agencies; evaluations of the health effects and costs associated with legislation, regulations, and policies; and enhancement of research methods to assess the strength of evidence regarding the health effects of public policies. These recommendations, and the continued interest in law as a determinant of health system performance, speak to the need for integrating the emerging fields of Public Health Law Research (PHLR) and Public Health Systems and Services Research (PHSSR).

METHODS

Expert commentary.

FINDINGS

This article sets out a unified framework for the two fields and a shared research agenda built around three broad inquiries: (1) the structural role of law in shaping the organization, powers, prerogatives, duties, and limitations of public health agencies and thereby their functioning and ultimately their impact on public health ("infrastructure"); (2) the mechanisms through which public health system characteristics influence the implementation of interventional public health laws ("implementation"); and (3) the individual and system characteristics that influence the ability of public health systems and their community partners to develop and secure enactment of legal initiatives to advance public health ("innovation"). Research to date has laid a foundation of evidence, but progress requires better and more accessible data, a new generation of researchers comfortable in both law and health research, and more rigorous methods.

CONCLUSIONS

The routine integration of law as a salient factor in broader PHSSR studies of public health system functioning and health outcomes will enhance the usefulness of research in supporting practice and the long-term improvement of system performance.

Smokefree policies in Latin America and the Caribbean: making progress

We reviewed the adoption and implementation of smokefree policies in all Latin American and the Caribbean (LAC) countries. Significant progress has been achieved among LAC countries since the WHO Framework Convention on Tobacco Control (FCTC) was adopted in 2005. Both national and sub-national legislation have provided effective mechanisms to increase the fraction of the population protected from secondhand tobacco smoke. Civil society has actively promoted these policies and played a main role in enacting them and monitoring their enforcement. The tobacco industry, while continuing to oppose the approval and regulation of the laws at legislative and executive levels, has gone a step further by litigating against them in the Courts. As in the US and elsewhere, this litigation has failed to stop the legislation.

The vector of the tobacco epidemic: tobacco industry practices in low and middle-income countries

PURPOSE

To understand transnational tobacco companies' (TTCs) practices in low and middle-income countries which serve to block tobacco-control policies and promote tobacco use.

METHODS

Systematic review of published research on tobacco industry activities to promote tobacco use and oppose tobacco-control policies in low and middle-income countries.

RESULTS

TTCs' strategies used in low and middle-income countries followed four main themes-economic activity; marketing/promotion; political activity; and deceptive/manipulative activity. Economic activity, including foreign investment and smuggling, was used to enter new markets. Political activities included lobbying, offering voluntary self-regulatory codes, and mounting corporate social responsibility campaigns. Deceptive activities included manipulation of science and use of third-party allies to oppose smoke-free policies, delay other tobacco-control policies, and maintain support of policymakers and the public for a pro-tobacco industry policy environment. TTCs used tactics for marketing, advertising, and promoting their brands that were tailored to specific market environments. These activities included direct and indirect tactis, targeting particular populations, and introducing new tobacco products designed to limit marketing restrictions and taxes, maintain the social acceptability of tobacco use, and counter tobacco-control efforts.

CONCLUSIONS

TTCs have used similar strategies in high-income countries as these being described in low and middle-income countries. As required by FCTC Article 5.3, to counter tobacco industry pressures and to implement effective tobacco-control policies, governments and health professionals in low and middle-income countries should fully understand TTCs practices and counter them.

Failure of policy regarding smoke-free bars in the Netherlands

BACKGROUND

Tobacco companies consistently work to prevent and undermine smoke-free laws. The tobacco industry and its allies have funded hospitality associations and other third parties to oppose smoke-free laws, argue that smoke-free laws will economically damage hospitality venues, promote ventilation and voluntary smoker 'accommodation' as an alternative to smoke-free laws, and to challenge smoke-free laws in court. In 2008, the Netherlands extended its smoke-free law to hospitality venues.

METHODS

We triangulated news articles, government documents, scientific papers, statistical reports and interviews to construct this case study.

RESULTS

Despite widespread public support for smoke-free hospitality venues, opponents successfully represented these laws as unpopular and damaging to small bars. These challenges and related smokers' rights activities resulted in non-compliance among all bars and reinstating an exemption for small, owner-run venues. This policy reversal was the result of a weak implementing media campaign (which failed to present the law as protecting nonsmokers), smoking room exemptions and reactive (vs. proactive) measures by the Ministry of Health and civil society.

CONCLUSION

The policy failure in the Netherlands is the result of poor implementation efforts and the failure to anticipate and deal with opposition to the law. When implementing smoke-free laws it is important to anticipate opposition, used the media to target non-smokers to reinforce public support, and actively enforce the law.

Strong advocacy led to successful implementation of smokefree Mexico City

OBJECTIVE

To describe the approval process and implementation of the 100% smokefree law in Mexico City and a competing federal law between 2007 and 2010.

METHODS

Reviewed smokefree legislation, published newspaper articles and interviewed key informants.

RESULTS

Strong efforts by tobacco control advocacy groups and key policymakers in Mexico City in 2008 prompted the approval of a 100% smokefree law following the WHO FCTC. As elsewhere, the tobacco industry utilised the hospitality sector to block smokefree legislation, challenged the City law before the Supreme Court and promoted the passage of a federal law that required designated smoking areas. These tactics disrupted implementation of the City law by causing confusion over which law applied in Mexico City. Despite interference, the City law increased public support for 100% smokefree policies and decreased the social acceptability of smoking. In September 2009, the Supreme Court ruled in favour of the City law, giving it the authority to go beyond the federal law to protect the fundamental right of health for all citizens.

CONCLUSIONS

Early education and enforcement efforts by tobacco control advocates promoted the City law in 2008 but advocates should still anticipate continuing opposition from the tobacco industry, which will require continued pressure on the government. Advocates should utilise the Supreme Court's ruling to promote 100% smokefree policies outside Mexico City. Strong advocacy for the City law could be used as a model of success throughout Mexico and other Latin American countries.

Policy-driven tobacco control

BACKGROUND

Since the passage of Proposition 99, California's comprehensive tobacco control programme has benefited from a localised policy adoption process that allows for the innovation and diffusion of strong local tobacco control policies throughout the state.

METHODS

The policy adoption continuum is described in the context of California's smoke-free workplace movement, and the influence of policy-driven tobacco control initiatives on social norms, behaviour and the public's health was examined.

RESULTS

The Smoke-free California policy adoption continuum reflects a general approach for policy innovation and diffusion that builds social acceptance and influences social norms, while minimising unintended consequences and creating best practices in tobacco control. California's local smoke-free workplace policies have reduced secondhand smoke exposure and supported attitude and behaviour changes. The effects of local policy adoption led to the nation's first statewide smoke-free workplace law.

CONCLUSIONS

Proposition 99 created an unprecedented tobacco control infrastructure that supported local policy innovation and diffusion to influence social norms and behaviours. Tobacco control policy efforts should address campaign challenges, oppose pre-emption and confront tobacco industry influence. Advocates must be cautious of pursuing a statewide policy prematurely, as it may result in a weak and/or pre-emptive policy that can stymie local policy efforts and prolong the adoption of a meaningful statewide policy.

Local smoke-free policy development in Santa Fe, Argentina

OBJECTIVE

To describe the process of approval and implementation of a comprehensive smoke-free law in the province of Santa Fe, Argentina, between 2005 and 2009.

METHODS

Review of the Santa Fe smoke-free legislation, articles published in local newspapers and documentation on two lawsuits filed against the law, and interviews with key individuals in Santa Fe.

RESULTS

Efforts to implement smoke-free policies in Santa Fe began during the 1990s without success, and resumed in 2005 when the provincial Legislature approved the first 100% smoke-free subnational law in Argentina. There was no strong opposition during the discussions within the legislature. As in other parts of the world, pro-tobacco industry interests attempted to block the implementation of the law using well known strategies. These efforts included a controversy media campaign set up, the creation of a hospitality industry association and a virtual smokers' rights group, the introduction of a counterproposal seeking modification of the law, the challenge of the law in the Supreme Court, and the proposal of a weak national bill that would 'conflict' with the subnational law. Tobacco control advocates sought media attention as a strategy to protect the law.

CONCLUSIONS

Santa Fe is the first subnational jurisdiction in Latin America to have enacted a comprehensive smoke-free policy following the recommendations of the World Health Organization (WHO) Framework Convention on Tobacco Control. After 3 years of implementation, pro-tobacco industry forces failed to undermine the law. Other subnational jurisdictions in Argentina, as well as in Mexico and Brazil are following the Santa Fe example.

Competing initiatives: a new tobacco industry strategy to oppose statewide clean indoor air ballot measures

To describe how the tobacco and gaming industries opposed clean indoor air voter initiatives in 2006, we analyzed media records and government and other publicly available documents and conducted interviews with knowledgeable individuals. In an attempt to avoid strict "smoke free" regulations pursued by health groups via voter initiatives in Arizona, Ohio, and Nevada, in 2006, the tobacco and gaming industries sponsored competing voter initiatives for alternative laws. Health groups succeeded in defeating the pro-tobacco competing initiatives because they were able to dispel confusion and create a head-to-head competition by associating each campaign with its respective backer and instructing voters to vote "no" on the pro-tobacco initiative in addition to voting "yes" on the health group initiative.

Legal and political obstacles to smoke-free regulation in Minnesota regions

As communities move toward statewide smoke-free regulation, progress is often stymied by legal and political challenges that arise when multiple cities and counties share regulatory power within what is, for economic purposes, a single population center. Political challenges are exacerbated by legal inconsistencies and uncertainties, such as confusing and conflicting lawmaking power in boards of health, cities or counties, and diverse procedures and timelines for adopting and amending ordinances. Surprisingly little research is available about the legal and political obstacles communities face in regulating tobacco on a regional basis. Researchers used case study methodology to analyze legal and political challenges that seven multi-jurisdictional Minnesota regions faced in smoke-free ordinance campaigns between 2000 and 2006, to examine the approaches regulatory authorities took in each of these communities, and to identify strategies to help public health advocates, health organizations, policymakers, and legal professionals anticipate, avoid, and address these obstacles. Legal impediments included confusing rules for passing smoke-free laws via ballot measures (initiatives and referenda); distracting lawsuits; and conflicts over legal jurisdiction. Political challenges included the recurrent argument for regional consistency, protracted timelines, pending legislation and elections, and mayoral vetoes. Legal and political challenges similar to those in this study appear in smoke-free campaigns across the U.S. By recognizing the risks posed by these obstacles, advocates will be better prepared to advance smoke-free policies effectively.

Smokefree environments in Latin America: on the road to real change?

Latin American countries are experiencing an increasing burden of tobacco-related diseases. Smoke free policies are cost-effective interventions to control both exposure of nonsmokers to the toxic chemicals in secondhand tobacco smoke and to reduce the prevalence of smoking and its consequent morbidity and mortality. The World Health Organization Framework Convention on Tobacco Control has created momentum in Latin America to implement meaningful tobacco control policies. As of August 2007, Uruguay, two provinces and three cities in Argentina, and one state in Venezuela, had passed, regulated, and enforced 100% smokefree legislation. The tobacco industry, working through local subsidiaries, has been the strongest obstacle in achieving this goal and has prevented progress elsewhere in the region. During the 1990s, transnational tobacco companies Philip Morris International and British American Tobacco developed voluntary initiatives ("Courtesy of Choice" and "Environmental Tobacco Smoke Consultancy" programs) to prevent effective smokefree policies. Another important barrier in the region has often been a weak and fragmented local civil society. Opportunities in the region that should be taken into account are a high public support for smokefree environments and increasing capacity building available from international collaboration on tobacco control. Policymakers and tobacco control advocates should prioritize the implementation of smokefree policies in Latin America to protect nonsmokers, reduce smoking prevalence with its economic and disease burden in the region.

Preemption of local smoke-free air ordinances: the implications of judicial opinions for meeting national health objectives

Elimination of state laws that preempt local antismoking ordinances is a national health objective. However, the tobacco industry and its supporters have continued to pursue state-level preemption of local tobacco control ordinances as part of an apparent strategy to avoid the diffusion of grassroots antismoking initiatives. And, an increasing number of challenges to local ordinances by the tobacco industry and persons supported by the tobacco industry are being decided in state supreme courts and courts of appeals. The outcomes of seemingly similar cases about the validity of local smoke-free air ordinances vary significantly by state. This paper examines the common and unique aspects of the decisions and the potential implications of court rulings on preemption for future state tobacco control efforts and achievement of national health objectives around the elimination of preemption. Using a search strategy developed for the Centers for Disease Control and Prevention's State Tobacco Activities Tracking and Evaluation (STATE) System, cases where a state or federal appellate level court made a finding on the validity of a local smoke-free air ordinance or regulation were identified in 19 states. In contrast to previous studies, we found that cases in approximately half of states were decided for local governments. We also found that across the states, courts were considering similar factors in their decisions including the extent to which: (1) the local government possessed the authority to pass the ordinance, (2) the ordinance conflicted with the state constitution, and (3) state statutes preempt the ordinance.

"Accommodating" smoke-free policies: tobacco industry's Courtesy of Choice programme in Latin America

OBJECTIVE

To understand the implementation and effects of the Courtesy of Choice programme designed to "accommodate" smokers as an alternative to smoke-free policies developed by Philip Morris International (PMI) and supported by RJ Reynolds (RJR) and British American Tobacco (BAT) since the mid-1990s in Latin America.

METHODS

Analysis of internal tobacco industry documents, BAT "social reports", news reports and tobacco control legislation.

RESULTS

Since the mid-1990s, PMI, BAT and RJR promoted Accommodation Programs to maintain the social acceptability of smoking. As in other parts of the world, multinational tobacco companies partnered with third party allies from the hospitality industry in Latin America. The campaign was extended from the hospitality industry (bars, restaurants and hotels) to other venues such as workplaces and airport lounges. A local public relations agency, as well as a network of engineers and other experts in ventilation systems, was hired to promote the tobacco industry's programme. The most important outcome of these campaigns in several countries was the prevention of meaningful smoke-free policies, both in public places and in workplaces.

CONCLUSIONS

Courtesy of Choice remains an effective public relations campaign to undermine smoke-free policies in Latin America. The tobacco companies' accommodation campaign undermines the implementation of measures to protect people from second-hand smoke called for by the World Health Organization Framework Convention on Tobacco Control, perpetuating the exposure to tobacco smoke in indoor enclosed environments.

Consent and counter-mobilization: the case of the national smokers alliance

Throughout the 1990s, health advocates engaged in a significant mobilization against the dangers of tobacco use and the tobacco industry. In 1993, the tobacco industry counter-mobilized through the National Smokers Alliance (NSA), a public relations created front group funded by the tobacco industry, which operated nationally from 1994 to 1999 to advocate for adults using tobacco products without vigorous regulation or increased tobacco taxes. The mobilization by health groups utilized traditional political lobbying and education of the public and public officials without a national public relations created front group to mold public opinion. The counter-mobilization by the NSA was based on traditional lobbying approaches in conjunction with the use of the public relations oriented consent engineering theory of Edward Bernays, Harold Lasswell, and others. This consent engineering theory calls for public relations specialists using public relations to mold public opinion to support a client's preferred public policy outputs. Despite the use of traditional lobbying in conjunction with the use of public relations efforts, attempts by the NSA to dominate public policy to weaken or neutralize stronger tobacco regulations and taxes were effective only for some campaigns.

Tobacco industry litigation strategies to oppose tobacco control media campaigns

OBJECTIVE

To document the tobacco industry's litigation strategy to impede tobacco control media campaigns.

METHODS

Data were collected from news and reports, tobacco industry documents, and interviews with health advocates and media campaign staff.

RESULTS

RJ Reynolds and Lorillard attempted to halt California's Media Campaign alleging that the campaign polluted jury pools and violated First Amendment rights because they were compelled to pay for anti-industry ads. The American Legacy Foundation was accused of violating the Master Settlement Agreement's vilification clause because its ads attacked the tobacco industry. The tobacco companies lost these legal challenges.

CONCLUSION

The tobacco industry has expanded its efforts to oppose tobacco control media campaigns through litigation strategies. While litigation is a part of tobacco industry business, it imposes a financial burden and impediment to media campaigns' productivity. Tobacco control professionals need to anticipate these challenges and be prepared to defend against them.

Implementation failures in the use of two New Zealand laws to control the tobacco industry: 1989-2005

BACKGROUND

We reviewed the implementation of New Zealand laws in relation to the activities of the tobacco industry and their allies. Material for two brief case studies was obtained from correspondence with official agencies, official information requests, internet searches (tobacco industry documents and official government sites), and interviews with 12 key informants.

RESULTS

The first case study identified four occasions over a period of 14 years where New Zealand Government agencies appeared to fail to enforce consumer protection law, although apparent breaches by the tobacco industry and their allies had occurred in relation to statements on the relative safety of secondhand smoke. The second case study examined responses to a legal requirement for the tobacco industry to provide information on tobacco additives. There was failure to enforce the law, and a failure of the political process for at least 13 years to clarify and strengthen the law. Relevant factors in both these cases of 'policy slippage' appear to have been financial and opportunity costs of taking legal action, political difficulties and the fragmented nature of government structures.

CONCLUSION

Considered together, these case studies suggest the need for governments to: (i) make better use of national consumer laws (with proper monitoring and enforcement) in relation to tobacco; and (ii) to strengthen international law and resources around tobacco-related consumer protection. A number of options for achieving these aims are available to governments.