Earlier this year, British American Tobacco (BAT) warned the New Zealand Government it could be dangerous to strip tobacco packets of branding.
Photo: Illustration: Kerry Ann Lee
In their submission to the Health Select Committee, New Zealand was depicted as a “small, distant, open economy” reliant on exports. Our reputation as a country would suffer “lasting damage” if investors and trading partners were to seek more respectful, business-friendly counterparts. The impact on our economy, as the tobacco company put it, would be significant.
This submission was one of thousands made on the Smokefree Environments (Tobacco Plain Packaging) Amendment Bill. Having passed its first reading in February, this bill would see NZ introduce mandatory plain packaging for cigarettes. No logos or any other type of marketing imagery would be permitted, standardising all design elements and increasing the size of the warnings. It is a notable, recent effort in NZ’s history of tobacco control, and part of a target for the country to become smokefree by 2025. As a result, tobacco companies are lobbying the Government to reject the bill, to ensure they maintain the right to market their distinct products.
Lobbying is an industry in which organisations, businesses and special interest groups attempt to influence government or public policy. Presentations to Parliament, meetings with MPs, and company-sponsored studies and advertisements all fall under the umbrella of lobbying. This loose definition of lobbying means it is difficult to pin down, with relevant titles ranging from public relations consultant, strategic adviser, corporate adviser and in-house "government relations" manager.
In New Zealand, lobbying often operates under the radar. Without an official lobbyist register, the exact figures for NZ aren’t known. In 2011, Australia had around 1000 professional lobbyists, equivalent to four per MP.
Many different lobbying strategies have been used during the ongoing plain packaging debate. Philip Morris, British American Tobacco and Imperial Tobacco have all threatened to take legal measures if the bill is drafted into law. The companies cite various trade agreements and partnerships that would be breached if the law goes ahead. They have also attacked NZ’s democratic standing, saying plain packaging restricts their “freedom of expression” and intellectual property rights. BAT would seek an award of substantial damages “fashioned so as to wipe out all [financial] consequences of the Government’s illegal acts”.
After Australia adopted plain tobacco packaging, it faced a raft of charges over intellectual property (IP) and trade agreements. However, according to Marcelo Rodriguez Ferrere, a lecturer in public law at the University of Otago, the legal challenges are shaky.
“In Australia, Philip Morris attacked its federal plain-packaging laws in court, arguing it breached its IP rights, and lost in its highest court. It also attacked the laws under the Australia-Hong Kong BIT, which I believe is continuing, but the legal argument isn’t a solid one and its chances of success are slim.”
“Trade-related concerns around alleged expropriation of trademarks have been raised each time health warnings on tobacco packaging in NZ have been enlarged”. And government has won every time.
“New Zealand would be on similar ground to [Australia], on a firm footing to defend such an attack, but nevertheless, opening itself to the possibility of one.”
Similarly, business groups outside of the tobacco industry such as the National Association of Manufacturers, have also issued warnings that plain-packaging laws for cigarettes could affect NZ’s exports. In a press release, they encouraged the Government “to consider the concerns we have raised for the possible impact on New Zealand exports, such as dairy and wine, should other Governments feel emboldened to take similar unwarranted measures”.
Ferrere said this could come at a cost to NZ. “Most treaties require arbitration in the case of a dispute, meaning the government might have to defend itself against such an argument, regardless of its validity.”
The Ministry of Foreign Affairs and Trade estimates it could cost between NZ$1.5-2 million to defend a World Trade Organisation case.
However, the threats made by tobacco and other business groups are nothing new. The Ministry of Health, issued a statement saying “trade-related concerns around alleged expropriation of trademarks have been raised each time health warnings on tobacco packaging in NZ have been enlarged”. And government has won every time.
Special interest groups have formed on both sides of the tobacco debate. The NZ Public Relations Handbook mentions the importance of “grassroots” lobbying as an indirect route to apply influence. “It is imperative that all the supporters say the same thing. It is equally important that effort is concentrated on two or three points which are stressed over and over again. Repetition has been shown to be a powerful tool in both learning and in advertising”.
Journalist Keith Ng proved that repetition that is too obvious can backfire. The Association of Community Retailers (ACR), and its predecessor Stay Displays, were vocal opponents of the crackdown on tobacco tax shop display advertising in 2011, and the tax increase on tobacco in 2010. ACR described itself as a “grassroots organisation of ‘small, independent family-run retail outlets.’” Ng discovered they shared an address with Omeka Public Relations, which is run by Glenn Inwood, who also works for Imperial Tobacco. Although the assertion ACR was used as a front by Big Tobacco was denied, its influence as a credible grassroots lobbying force was quickly lost.
A similar event occurred in Australia, with the Alliance of Australia Retailers (AAR) railing against tax increases on tobacco, and plain packaging. They were funded, to the tune of 9 million AUD, by three tobacco companies. Multiple brands abandoned the AAR once these funding details were made public.
Todd Barclay, National’s new list candidate for the Clutha-Southland region. Photo: Facebook
Big Tobacco has also hired consultants to conduct and promote studies favourable to its business agenda. In media statements, the tobacco industry mentioned a study conducted in Australia that showed the smoking rate going up after the introduction of plain packaging; unsurprisingly this was received with skepticism. The study, as discovered by ABC, was commissioned by Philip Morris. Last month on Radio New Zealand’s Nine to Noon programme, Imperial lobbyist Axel Gietz touted another study that demonstrated a link between increased smoking rates, illicit trading, and plain packaging. But again, tobacco companies had commissioned accounting company KPMG to conduct the study.
The public’s skeptical attitude toward Big Tobacco also became evident during the recent backlash regarding Todd Barclay, National’s new list candidate for the Clutha-Southland region, and previous employee of Philip Morris. While Barclay said that working as a tobacco lobbyist didn’t “call into question my ethics”; editorials and articles reflected the public’s mistrust of such a statement.
When asked about whether he felt his treatment by the media was fair, Barclay said, “No, but I expected it… There was always going to be attention on this electorate and I entered the race knowing full well that my opponents would seek to seize on a relatively small part of my life.”
“People seem to forget the five years I spent working in the Beehive on a range of projects and my time as a public relations consultant.”
More fuel was added to this fire in March this year, when another tobacco lobbyist, Chris Bishop, was selected to be National’s Hutt South candidate. Even if both Barclay and Bishop insist their links to tobacco will not affect their judgment as MPs, the tobacco industry’s influence in NZ is one that raises concern, and speaks to the wider issue of commercial companies’ influence on government.
A number of countries have sought to regulate government lobbyists, a task which carries enormous practical difficulty. In 2012, NZ Green Party MP Holly Walker put forward a Lobbying Disclosure Bill in an attempt to increase transparency. Under the bill, a compulsory Registry of Lobbyists would be enacted; failure to register would be a criminal offence, and a code of conduct drafted by the Auditor-General, to which returns would also be filed.
Walker said the move was well received by the wider public, “the overwhelming response to the bill was ‘yeah go get ‘em’”.
“There is a lot of concern about the influence of money on politics, a low level of trust of politicians among the general public I do think there is a strong public appetite out there for greater transparency”.
Walker emphasised that a lot of the suspicion surrounding lobbying was unfounded, seeing it as an important part of the political process. “We do actually need to be well-informed to make good decisions … I think it is in the interests of people who do lobby MPs and it’s in the interest of MPs ourselves for those interactions to be made public.”
She also defends the tobacco industry’s ability to lobby. “Everybody has a right to come to Parliament and say “if you make this decision it is going to affect me or my business in ‘this’ way”. But parliament doesn’t have to listen to them and… their arguments don’t hold a whole lot of weight.”
“The fact that the National Party recently elected to get a candidate who was employed by the tobacco industry is kinda worrying but I don’t think those people have had a big influence on the government policies in that area”.
Barclay also agreed that much of the scepticism is unjustified. “We have a very open system of democracy, and members of the general public have ready access to their elected representatives. There are a wide range of people lobbying decision makers at both central and local Government levels, as well as within industries. Think, trade unions, doctor groups, business associations and employer advocates. They all express a point of view on behalf of their members.”
“An advocate like a lobbyist has one point of view and in my experience doesn't have any more influence than members of the public.”
Ferrere supported the bill from a legal perspective, saying “part of the problem is that we simply don’t know the extent of the interests of lobbying firms and the extent of the influence that they wield.”
“There are plenty of lobbyists in New Zealand that fly under the radar, and they doubtless have an effect on policy, but the extent isn’t clear. It’s also due to the way policy and legislation is set in New Zealand: because the policy that appears in legislation can come from so many different sources… it is naïve to suggest that [lobbying] doesn’t exist and doesn’t have an effect in New Zealand.”
There are plenty of lobbyists in New Zealand that fly under the radar, and they doubtless have an effect on policy, but the extent isn’t clear.
The disclosure bill was passed unanimously at its first meeting but came under scrutiny at the select committee stage, and the Government Administration Committee recommended the Bill be rejected. One of the key issues with the bill was the difficulty of defining “lobbyist” and “lobbying activity”, with critics viewing the criteria as too general. Labour MP Ruth Dyson said, "If you've got a bunch of family members who aren't being paid to provide care to their family, they should be able to lobby you. You wouldn't want them to go through a registration process for having their views known."
Walker was encouraged by the feedback, saying “even those who were most critical of the bill in terms of its definitions and the mechanisms that it proposed… [showed] support for the idea of greater transparency in the lobbying sphere, they do see it as desirable to have greater transparency in their activities.”
A list of non-legislative alternatives was drafted, and included recommendations such as proactive disclosure. Walker said she still would advocate for a register of lobbyists. “It could be compulsory but it might not necessarily have to be legislated, for example the speaker of the house could say ‘before I give out an access card to parliament, this register needs to be signed, containing relevant information.’”
Public law lecturer Marcelo Rodriguez Ferrere said increasing transparency was also beneficial for other reasons. “With that sort of official daylight shone on the process, news media can critique the effect of lobbying, which might have political effects. At the moment, news media simply don’t and sometimes can’t know the extent of lobbying, and that’s a problem.”
Many PR campaigns appear more in the public interest, and groups supporting environmental causes and health initiatives have been able to influence Parliament using many of the same tools that make the tobacco lobbying industry so controversial. Groups such as ASH and Smokefree New Zealand, are vocal members of the anti-tobacco lobby who also meet with government officials and commission studies in their favour. It’s harder to see their lobbying as controversial, as their incentive isn’t solely financial.
Amnesty International has a large lobbying sector, to which it attributes a lot of its success. For non-profit-type groups which aren’t always particularly media-savvy, having people with public relations skills onboard can be crucial, both in reaching a large audience, and in achieving their goals. Previous Amnesty Otago University Co-President Kari Schmidt said it was essential to their work. When it comes to activism, “maintaining presence and pressure is fundamental.”
Ultimately, the issue comes down to who is using lobbying techniques, to what end, and with what consequences. Tobacco lobbying may be democratic, but the public’s concern isn’t over breaking the law, it’s over the fact tobacco kills people. The public appetite for transparency can become a considerable force. Although money does buy influence, public support often is a more valuable currency. Trying to get some transparency is something that NZ should aim for. Even if it isn’t legislated, any sort of rules are a good start.
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