Dealing with tobacco – a “smoking” issue

An oft-quoted statistic is that smoking represents New Zealand’s leading cause of avoidable death and disease, with an estimated 5000 New Zealanders dying every year from tobacco-related causes, and annual healthcare costs associated with smoking-related illnesses reaching almost $2 billion. Not only that, but these consequences can be said to come about simply through cigarettes being used as intended, rather than through some kind of accident or overdose.

An Hertogen And Anita Killeen

Questions around use of tobacco, the difficulties of quitting smoking, and differing viewpoints over newer options such as “e-cigarettes” have been in the headlines recently, both in New Zealand and overseas. Anti-smoking awareness is to the fore here at present with “Stoptober” – a national 31-day stop smoking challenge – which kicked off in October, and aims to help the 460,000 or so New Zealanders who smoke give up the habit for good.

In the last decade, “endgames” to the traditional tobacco industry, rather than just management of the problems, are now being considered. However, answers as to how to deal with the long-term problems associated with tobacco products are by no means clear-cut. Some advocate the ban of cigarette sales entirely, some focus on restricting advertising and packaging, while others favour more allowances being made for alternatives to traditional cigarette smoking.

The Smoke-free Environments Act 1990 provides for strict age and place restrictions in relation to cigarette smoking, and successive governments have used tools such as pricing and restrictions on display and promotion of tobacco products to discourage smoking. Graphic health warning requirements (introduced via regulations in 2007), public education campaigns (such as “Smoking Not Our Future”), and stop-smoking initiatives (such as Quitline) all play their part as well.

In 2011, the New Zealand government announced it was aiming to make the country “essentially a smoke-free nation” by 2015, by which it meant reduce the number of smokers to below five per cent of the population. Amongst its proposals to achieve this are increasing smoke-free environments, further restricting tobacco advertising, and the introduction of plain packaging for tobacco products.

In 2013, the Government announced a move toward “plain packaging” in the hope of making cigarettes less attractive and deterring new and young smokers. However, there are questions as to how effective such measures are in reducing sales to existing smokers. Difficulties may also arise in terms of New Zealand’s international obligations (for example under the TRIPS regime) interfering with the intention to introduce plain packaging.

A Whangarei District councillor made the news in August this year by sharing his struggle with cigarette addiction and calling for a total ban on their sale, saying: “A total ban on sales might sound harsh to us now, but if cigarettes were a new product about to be released on to the market they would never be permitted due to their potential health effects, addictive nature and appeal to young people” (Northern Advocate, 28 August 2014).

A recent article entitled “The Burning Issue of Combustible Tobacco: The Inconvenient Truth” by An Hertogen and Anita Killeen in the New Zealand Law Review takes a more in-depth look at these issues – in particular the feasibility of existing tobacco control policies and proposals in terms of achieving a truly “smoke-free” New Zealand.

The authors are critical of “hanging our hats” on proposals such as plain packaging, which they feel “ignore the elephant in the room, which is that New Zealand allows [such] a harmful product … to be legally available on the market”. Of the various “endgames” which have been suggested in relation to the tobacco industry, the authors consider that “the most promising is a shift to less harmful nicotine delivery methods such as electronic cigarettes”.

“E-cigarettes” (as they are generally known) look and feel like regular cigarettes, but instead of burning tobacco, they deliver vapour to the lungs, while in other ways mimicking the behavioural aspect of cigarette addiction. However, higher regulatory standards as compared to combustible tobacco products such as traditional cigarettes limit access to such alternatives. The authors suggest applying the same regulatory framework across the board for all tobacco products:

“New Zealand’s current policy package … [is] stuck in the paradigm that traditional cigarettes, poisonous though they are, remain legally available for sale … Our argument is not opposed to the current policies per se, but rather is one in favour of a bolder move that recognises tobacco as a toxic product to be regulated akin to other controlled substances under the Psychoactive Substances Act 2013.

“Furthermore, the continuing premise that tobacco is a legally traded product, despite the well-documented harm to public health, can generate the wrong impression to members of the public that it is less harmful than if it were a restricted substance, such as those covered by the Psychoactive Substances Act 2013 and the Misuse of Drugs Act 1975.”

Internationally, the World Health Organisation (WHO) has (in conjunction with its “Tobacco Free Initiative”) just issued a report to be put before the 6th Conference of the Parties to the WHO Framework Convention on Tobacco Control in Moscow in October this year, which considers “electronic nicotine delivery systems” such as e-cigarettes.

WHO voices concerns that e-cigarettes will serve as a gateway to nicotine addiction and smoking by young people, and found there was insufficient evidence as to whether e-cigarettes help users quit smoking and that smokers should first be encouraged to quit smoking by using a combination of already-approved treatments. It considers that, while e-cigarettes and similar devices are frequently marketed by manufacturers as healthier alternatives to tobacco or aids to quit smoking, regulation is needed in this area to deal with, among other things, how the devices are promoted to non-smokers and young people, minimising any health risks to users and nonusers, and restricting use of e-cigarettes indoors.

While acknowledging that smokeless tobacco is not without its risks and controversies (including uncertainty surrounding the toxicity of e-cigarettes, and their potential to inhibit smoking cessation efforts), Ms Hertogen and Ms Killeen consider that the risks are lower than for combustible tobacco.

“In our view, although it cannot be shown with certainty that e-cigarettes are absolutely safe (and, of course, there are no absolutes in science), they are the lesser of two evils. Compared to the continued consumption of combustible tobacco, they are less harmful, and they may be able to help smokers quit. As a result, they deserve a closer look as a potential pathway to the smoke-free endgame.”

The New Zealand Law Review article authors consider it paradoxical that e-cigarettes are treated more harshly than combustible tobacco products (whose harms are well-documented), and suggest that all forms of tobacco be regulated similarly to other inherently harmful substances (such as synthetic cannabis which now falls under the Psychoactive Substances Act 2013). The onus of proof would then be on the industry to show that such products are low risk before they are allowed onto the market. Currently, and despite nicotine being generally admitted to be a psychoactive substance, tobacco products are explicitly excluded from the definition of a “psychoactive substance” under that Act.

“Our argument should not be mistaken as advancing the free availability of e-cigarettes. Rather, we argue that there should be consistency in the regulatory framework with respect to both types of cigarettes. We believe that the recently enacted Psychoactive Substances Act is the most logical framework to assess the risks related to these e-cigarettes and determine whether they can be sold to consumers.”

Certainly there is plenty of material here to “put in your pipe and smoke”!

Excerpts from “The Burning Issue of Combustible Tobacco: The Inconvenient Truth”, by An Hertogen (Master in Laws (Leuven), LLM (Columbia), PhD (Auckland)) and Anita Killeen (Barrister, Quay Chambers, Auckland), are reproduced here with the permission of the authors. For the full article, please see New Zealand Law Review [2014] at pages 239-263. 

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