Friday, December 4, 2015

Policy Theories in Tobacco Plain Packaging in Australia

Tobacco Plain Packaging - (C) Telegraph
Introduction

In order to reduce the chronic disease burden associated with three life styles: alcohol, tobacco and obesity, in 2009, Australian Government launched the National Preventative Health Strategy to make Australia as the healthiest country by 2020 (MoHA 2010). Moreover, the strategy targeted all relevant policies both in the health and non-health sectors (PHT 2009). The realisation of the strategy started in July 2011 when Tobacco Plain Packaging (TPP) Bill was introduced in to the Parliament (PoA 2011) and then passed by both houses in November 2011 and then in December 2011, the act (TPP Act 2011) and its regulation (TPP Regulation 2011) were passed by the houses.

The objective of the Act is to improve public health by discouraging people from smoking or using any tobacco products and at the same time encouraging people to stop smoking and stop using tobacco products by regulating the retail packaging and appearance of tobacco product (AGCL 2011). In addition, the TPP Regulation 2011 regulates the detail implementation of retail packaging as mentioned in the act such as: physical features, colour and finish, trademark, brand and variant names, and also wrappers (AGCL 2011). According to the act and regulation, all tobacco products can only be sold in plain-font brand and variant name, no design or colour that could appeal people to buy, no logo and promotional information and on the other hand, the packaging should have disturbing and confronting graphic warnings to send message to smokers about the harmful of tobacco products (DoH 2012; RT 2012).  By passing this act and regulation in 2011 which came into force in December 2012, Australia became the first country in the world to implement tobacco plain packaging (Pottage 2013: 516).

This essay will discuss the TPP policy and its implementation with several theories on institutions and organisations such as: nudging, regulation, depoliticisation, and also organisation.

Nudging in Tobacco Plain Packaging

Thaler and Sunstein (2008: 6) argue that a nudge is any aspect of the “choice architecture”[1] that changes behaviour of the people without restricting or forbidding people’s options and without significantly altering their economic incentives. Sunstein (as cited by Roberts 2014: n.p) states that in the implementation, nudge include warning, reminder, drawing attention to social norms, changing the order of the presentation of goods, and also colour and noises.

In TPP policy, it can be seen that instead of banning people from smoking, the regulation and act choose to regulate the appearance of tobacco products and their packaging in order to influence people’s behaviour towards smoking. By giving health warnings and plain colour without any design that can appeal people to buy tobacco products, TPP is one of the examples of nudging in policy making.   

Jachimowicz and McNerney (2015: n.p) state that when policy maker use nudging or behavioural science to influence people’s decision, both government and the people will be benefitted. Moreover, Jachimowicz and McNerney (2015: n.p) also argue that by knowing human behaviour, nudge can help citizens to make wiser choices in their decisions. In the TPP policy, it can be seen that the policy works and has positive influences such as: the decrease of the national daily smoking rates, the increase of the number of calls to the quit smoking helpline, and the significant decrease of total consumption of tobacco and cigarettes in 2014 or the lowest ever recorded (DoH 2015).

However, for policy makers, nudge is not the only tool available and cannot be seen as the solution to all problems (Helpern 2014, as cited by Roberts 2014: n.p). In promoting health live without tobacco and cigarettes, Australian Government has also been implementing several policies which cannot be categorised as nudging such as: banning the advertisement of tobacco products in print media in 1991, issuing Tobacco advertising prohibition act in 1993, and also implementing smoke-free environment act in 2000 (NSW Health 2015).


The Regulation Principles in TPP Act and Regulation

Selznick (1985, as cited by Levi-Faur 2010: 7) argues that regulation is about exercising power and control by government as public agency over activities that are important and valued by the people. It can be seen from key the document ‘Australia: The Healthiest Country by 2020’ that the TPP Act and Regulation 2011 are the example of government actions to regulate something that valued by citizens: health (PHT 2009: 6).

Levi-Faur (2010: 8) states that regulation needs a continuous monitoring, assessment and refinement of rules. In addition, Johnstone and Sarre (2004: 4) contend that regulation should also deal with ‘compliance’ or how companies meet the regulatory requirements and ‘enforcement’ or dealings between companies and enforcement bodies to ensure compliance.

In doing the monitoring, assessment and evaluation of the policy, the Department of Health has worked together with Siggins Miller Consultant Pty Ltd to implement cost-benefit analysis evaluation with stakeholders impacted by the TPP Act and Regulation (DoH 2015). In addition, Australian Government also uses several evaluations conducted by independent evaluators such as British Medical Journal (BMJ) on its evaluation on early effects of TPP in Australia (DoH 2015).

Whereas for the enforcement of TPP Act and Regulation, the Department of Health and Ageing (DoHA)[2] issued Tobacco Plain Packaging Enforcement Policy in 2013. The enforcement policy sets out the principles adopted by the DoHA to enforce the TPP legislation such as proportionality, transparency, consistency, confidentiality, and timeliness (DoHA 2013: 4-5). It is mentioned in the enforcement policy that not every violation of the legislation must be prosecuted. There are several options available from administrative to court enforcement such as: education and communication, notice for alleged violation, written warning, infringement notice, civil penalty and criminal prosecution (DoHA 2013: 6).

According to the Three Pillars of Institutions by Scott (2008: 50-51), it can be seen from the enforcement policy above, that the TPP legislation can be categorised as Regulative Pillar as one of three vital ingredients of institutions: regulative, normative, and cultural cognitive. 

Independent Regulatory Agencies: Depoliticisation in Tobacco Plain Packaging

Majone (1997, as cited by Gilardi 204: 67) asserts that Independent Regulatory Agencies (IRAs) have been rising as one of the most important features of the regulatory states in European countries since 1990s. In addition, Jordana and Levi-Faur (2005, as cited by Sosay and Zenginobus 2005: 5-7) argue that the idea of IRAs has historical roots in Latin America with the significant growth were happened in 1992.

There are three institutionalism theories on the establishment of IRAs: First, rational choice institutionalism which argues that IRAs can help in solving the problems because politicians try to solve the uncertainty problem in politics and they also try to increase the credibility of their policies. Second, sociological institutionalism which asserts that IRAs are symbolic diffusion and occurs because IRAs are taken for granted as the organisational from that appropriate for regulators. Third, historical institutionalism which states that regulation through IRAs is happened because of the dependency (Gilardi 2004: 71).

In TPP in Australia, the IRAs can be seen from the establishment of TPP Enforcement Committee which comprised representatives from National Measurement Institute (NMI) and DoHA. On behalf of DoHA, the authorised officers from the NMI will conduct compliance and enforcement activities and the results will be reported to the Committee (DoHA 2013: 6-7). Moreover, the NMI itself is also the example of IRA established by Australian Government which responsible in maintaining units and standards of measurement in Australia in all sectors such as chemical metrology, drugs in sport, food testing, pharmaceutical and also biological material for patents (NMI 2015).

The delegation of some policies and its enforcement to IRAs (Enforcement Committee and NMI) can also be seen as depoliticisation tactic. Flinders and Buller (2006: 55) explain that depoliticisation can be used by politicians to avoid the responsibility on certain policy issues or decisions. The Australian government’s tactic to establish the Enforcement Committee to enforce TPP regulation can be seen as the implementation of ‘organisational tactic’. The organisational depoliticisation tactic is the most common tactic employed by government by establishing new independent agencies to avoid any political considerations (Flinders and Buller (2006: 58).

Moreover, it can also be seen that ‘preference-shaping tactic’ (Flinders and Buller 2006: 58) also be employed by Australian government especially the fact that TPP is also gained support from World Health Organisation (WHO) and also Australian Fair Trade and Investment Network (WHO 2013; AFTINET 2012). In addition, the explicit rules stated in the TPP legislation (Act and Regulation 2011) also explains that by implementing TPP, Australian Government is also practicing ‘ruled-based tactic’ in order to minimise political decision (Flinders and Buller 2006: 63).

Models of Organisation in Tobacco Plain Packaging

Colebatch and Larmour (1993: 17) explain three models of organisations: market, bureaucracy and community. ‘Market’ can be described as a model of organisation in which calculation of self-interest becomes the most important factor, ‘bureaucracy’ can be explained as the organisation in which their decisions governed by hierarchical rules, whereas the third model of organisation is ‘community’ or affiliation in which people are doing what is appropriate for their members or for larger group of the people (Colebatch and Larmour 1993: 19-23).

These three models of organisation can also be applied in TPP in Australia. ‘Market’ for example, can be explored by looking at the involvement of several big tobacco companies such as Philip Morris in suing Australian Government against the TPP legislation 2011. Philip Morris is actually a US company which cannot sue Australia under the US-Australia Free Trade Agreement, but Philip Morris rearranged its assets and moved its headquarter to Hong Kong to be able to sue Australian Government under the 1993 Agreement between Australia and Hong Kong for the Promotion and Protection of Investments (AGD 2015; AFTINET 2012; TWA 2015). Philip Morris claims that the TPP harms its intellectual property, breach of fair and equitable treatment, and also breach full protection and security which already agreed under 1993 Hong Kong Agreement (AGD 2015). This first investor-state arbitration in Australia reconfirms the main characteristic of ‘market’ model of organisation: self-interest or in this case, the interest of Philip Morris company.  
Bureaucracy model of organisation can be explored by looking at the policy making processes of TPP legislation to its implementation and enforcement. TPP Act and Regulation 2011 are the results of several previous documents or blue-prints resulted by several organisations in the government such as: the blue-print Australia; The Healthiest Country by 2010 issued by the National Preventative Health Task Force in 2009, The Taking Preventative Action document released by the Ministry of Health in 2010, TPP Bill, Act and Regulation in 2011, Competition and Consumer (Tobacco) Information Standard 2011 and TPP Enforcement Policy in 2013 (DoHA 2009; ACGL 2011; DoHA 2013). The bureaucracy model can also be seen from the coordination between several organisations such as Department of Health, National Measurement Institute, and also Australian Competitive and Consumer Commission in ensuring the implementation of TPP legislation (DoHA 2013).  

Whereas for community model of organisation, the example can be drawn from the fact that majority of Australians supported the TPP legislation. In 2011, Cancer Council Australia conducted a survey involved 1200 adult Australians and they found that 59% of the respondents supported the policy, the result also showed Australian community’s support for better public health policies rather than tobacco industry profits (CCA 2014).  

Conclusion

To conclude, the TPP legislation and its implementation in Australia show multifaceted theories of institutions and organisations. Nudging is chosen by Australian Government to give people choices without forbidding people from smoking. On the other hand, Australian Government also has several enforcement policy options for companies or individuals who breach the law ranging from administrative to court enforcement. The establishment of TPP Enforcement Committee also shows how the concept of IRAs and depoliticisation occur in the implementation and enforcement phase of the TPP.  Last but not least, the three models of organisation: market, bureaucracy, and community also play together both to support or to refuse the TPP. ***

Written by: Agung Wasono (October 2015)


References

Attorney-General Department (AGD) (2015), Tobacco plain packaging: investor-state arbitration, available at: https://www.ag.gov.au/tobaccoplainpackaging (accessed 30 October 2015).

Australian Fair Trade and Investment Network (AFTINET) (2012), Australian High Court rules against big tobacco on plain packaging, available at: http://aftinet.org.au/cms/node/519 (accessed 30 October 2015). 

Australian Government ComLaw (AGCL) (2011), Tobacco Plain Packaging Act 2011, available at: https://www.comlaw.gov.au/Details/C2011A00148 (accessed 7 September 2015).

___________ (2011), Tobacco Plain Packaging Bill 2011, available at: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4613 (accessed 6 September 2015).

___________ (2011), Tobacco Plain Packaging Regulation 2011, available at: https://www.comlaw.gov.au/Details/F2011L02644 (accessed 7 September 2015).

Black, J. (2002), Critical reflection on regulation, London: LSE, available at: http://core.ac.uk/download/pdf/219186.pdf (accessed 29 October 2015).

Cancer Council Australia (CCA) (2014), Plain tobacco packaging a winner with Australians: new poll, available at: http://www.cancer.org.au/news/media-releases/media-releases-2011/plain-tobacco-packaging-a-winner-with-australians-new-poll.html (accessed 30 October 2015).

Department of Health (DoH) (2012), Health warnings, available at: http://www.health.gov.au/internet/main/publishing.nsf/content/tobacco-warn (accessed 28 October 2015).

___________ (2015), Plain Packaging of Tobacco Products, available at: http://www.health.gov.au/tobaccopp (accessed 30 October 2015).

___________ (2015), Tobacco key facts and figures, available at: http://www.health.gov.au/internet/main/publishing.nsf/content/tobacco-kff (accessed 30 October 2015).

Department of Health and Ageing (DoHA) (2008), Australia: The Healthiest Country by 2020, available at: http://www.health.gov.au/internet/preventativehealth/publishing.nsf/content/a06c2fcf439ecda1ca2574dd0081e40c/$file/discussion-28oct.pdf (accessed 5 September 2015).

___________ (2013), Tobacco Plain Packaging Enforcement Policy, available at: http://www.health.gov.au/internet/main/publishing.nsf/Content/71E0A33CC534C8D2CA257D10001B78FD/$File/TPP%20Enforcement%20Policy.pdf (accessed 30 October 2015).

___________ (2014), Tobacco Plain Packaging Enforcement Policy, available at: http://www.health.gov.au/internet/main/publishing.nsf/content/tpp-enforcement-policy (accessed 3 September 2015).

Flinders, M. and J. Buller. (2006) 'Chapter 2 Depoliticization, democracy and arena shifting' In Autonomy and regulation: coping with agencies in the modern state, in Christensen, T. and P. Lægreid (ed.), Cheltenham UK: Edward Elgar Publishing: 53-80

Jachimowicz, J, M., and McNerney, S. (2015), Should Governments Nudge Us to Make Good Choices?, Scientific American, Vol 26 (5), available at: http://www.scientificamerican.com/article/should-governments-nudge-us-to-make-good-choices/ (accessed 29 October 2015).

Johnstone, R., and Sarre R. (2004), ‘Regulation: Enforcement and Compliance’, Research and Public Policy Series, No. 57, available at:  http://www.aic.gov.au/media_library/publications/rpp/57/rpp057.pdf (accessed 30 October 2015).

Jordana, J., and Levi-Faur, D. (2004), The Politics of Regulation, UK: Edward Elgar

Levi-Faur, D. (2010), ‘Regulation and Regulatory Governance’, Jerusalem Paper in Regulation and Governance, Vol No.1, available at:  http://regulation.huji.ac.il/papers/jp1.pdf

National Measurement Institute (NMI) (2015), About us, available at: http://www.measurement.gov.au/Pages/about.aspx (accessed 30 October 2015).

NSW Government Ministry of Health (NSW Health) (2015), Smoke-free law, available at: http://www.health.nsw.gov.au/tobacco/Pages/smokefree-legislation.aspx (accessed 29 October 2015).

Parliament of Australia (PoA) (2011), Tobacco Plain Packaging Bill 2011, available at: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4613 (accessed 27 October 2015).

Pottage, A. (2013), ‘No (More) Logo: Plain Packaging and Communicative Agency’, UC Davis Law Review, Vol 47 (2), pp: 515-546, available at: http://eprints.lse.ac.uk/55013/1/Pottage_No_more_logo_2013.pdf (accessed 28 October 2015).

Preventative Health Taskforce (PHT) (2010), Preventative Health Taskforce, available at: http://www.health.gov.au/internet/preventativehealth/publishing.nsf/Content/home-1 (accessed 27 October 2015).

___________ (2008), Tobacco control in Australia: making smoking history, available at: http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/tech-tobacco-toc (accessed 4 September 2015)

Roberts, A. (2014), Nudging policymakers – an overview of Behavioural Exchange 2014, Australian Government Public Sector Innovation, available at: https://innovation.govspace.gov.au/2014/06/13/nudging-policymakers-an-overview-of-behavioural-exchange-2014/ (accessed 29 October 2015).

RT News (2012), Plain packaging, graphic warnings: Australia fights nicotine addiction, available at: https://www.rt.com/news/australia-smoking-new-law-139/ (accessed 28 October 2015).

Sosay, G., and Zenginobus, E, U. (2005), Independent Regulatory Agencies in Emerging Economies, available at: http://regulation.upf.edu/ecpr-05-papers/gsosay.pdf (accessed 30 October 2015).

Thaler, R, H., and Sunstein, C, R. (2008), Nudge: Improving Decisions about Health, Wealth and Happiness, London: Yale University Press, available at: https://ethicslab.georgetown.edu/studio/wordpress/wp-content/uploads/2015/02/Richard_H._Thaler_Cass_R._Sunstein_Nudge_Impro_BookFi.org_.pdf (accessed 28 October 2015).

The West Australian News (TWA) (2015), Tobacco giant sues Australia, available at: https://au.news.yahoo.com/thewest/a/29064155/tobacco-giant-sues-australia/ (accessed 30 October 2015).

World Health Organization (WHO) (2013), Reducing the appeal of smoking – first experiences with Australia’s plain tobacco packaging law, available at: http://www.who.int/features/2013/australia_tobacco_packaging/en/ (accessed 30 October 2015).

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[1] The phrase “choice architecture” use by behavioural scientists to describe the ways or environment which influence people to decide something (Jachimowicz and McNerney 2015)

[2] Do not confuse with the difference between the Department of Health and Ageing (DoHA) and the Department of Health (DoH). DoH is the same body as DoHA. Recently, the DoHA changed its name to DoH.