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| 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)
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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.
