The lobby against a stricter tobacco regulation

The lobby against stricter tobacco regulation in the hospitality sector consists of three stakeholder groups: the tobacco industry, the organisations representing the interests of hospitality entrepreneurs and interest groups of smokers. The latter are the least important. They are generally

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not so well organised and have modest (economic) power despite the fact that they receive support from the tobacco industry. We therefore decided to focus here on the tobacco industry and the hospitality sector.

The tobacco industry in the Member States

“Thus lobbying or ‘stakeholder marketing’ is as much standard business practice as consumer marketing. … Any industry would do the same in such circumstances, even if the tobacco industry's methods, which, as we will see, include a predilection for smuggling, would be unacceptable in other corporate sectors.

However, tobacco is not a standard business. Cigarettes are uniquely harmful, in that they kill even when used precisely as the manufacturer recommends. No other product does this. Alcohol, cars and even food products (given the obesity epidemic) kill people, but only when abused. In addition, … , the sheer scale of the harm done by tobacco is unprecedented. It is this public health threat that has led to increasingly severe limitations on tobacco's consumer marketing. However, by contrast, stakeholder marketing remains entirely unfettered, and, arguably, from the tobacco industry's perspective, all the more important.” (The ASPECT Consortium 2004 p195).

The lobby of the tobacco industry and of tobacco producer interest groups is the most influential opponent of stricter tobacco regulations. Both France and the Netherlands have a substantial tobacco industry. France is one of the five primary tobacco producing EU Member States, but tobacco growing has decreased dramatically in France in the past decades. Moreover, tobacco farming represents only a small share of agricultural activity in the EU. In the 15 ‘old’ Member States about 0.1 per cent of the agricultural area is in use for tobacco growing (The ASPECT Consortium 2004).

In the Netherlands companies like British American Tobacco, Philip Morris, Imperial Tobacco Netherlands and Japan Tobacco International are active. British American Tobacco and Philip Morris are the two big ones. The Philip Morris plant in Bergen op Zoom is the largest Philip Morris factory in terms of production capacity but will be closed in autumn 2014 due to the decreased demand for cigarettes. The bulk of their production is exported. British American Tobacco has a major factory in Groningen. Imperial Tobacco Netherlands is particularly known for producing shag (or rolling) tobacco.

Besides these companies there are two tobacco producers interest groups active in the Netherlands.

One represents the shag tobacco industry (The Dutch Shag Manufacturers Association); the other one represents the substantially bigger cigarette branch organisation ‘Stichting Sigaretten Industry’

(SSI, ‘Foundation Cigarette Industry). SSI represents all cigarette producers except Philip Morris, which since September 2005 operates independently due to diverging opinions on tobacco policies.

Philip Morris has decided to comply with the tobacco discouragement policies (Elzinga 2013).

In France, Philip Morris International is the leader of the cigarette market (40.2 per cent of the market thanks to Marlboro and other Philipp Morris brands). The Seita group (ex-Altadis Imperial Tobacco) represents 25.2 per cent market share, followed by Japan Tobacco International (Camel, Winston, etc.) and British American Tobacco (Lucky Strike, Benson & Hedge, etc.) with 17.1 per cent and 16.4 per cent market share respectively in 2013.

A network of around 40 distributors, the most famous being Logista France (ex-Altadis distribution) distributes the brands of the tobacco industry. The other distributors are specialised in pipe-tobacco or cigars.

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Though there are some differences between the tactics and arguments of these different tobacco production stakeholders, overall their objectives and policies are identical. Their intention is to influence policy decisions and undermine the smoking ban. One of their tactics is to create, influence, mobilise and / or fund ‘front groups’, such as associations of pub owners or smokers’ right groups.

These groups receive support to fight the smoking bans in the interests of the industry.

They suggest alternatives for a smoking ban, like ventilation, air filtration or separate rooms for smokers and non-smokers. Another often used tactic is to challenge the legal provisions, by arguing that these provisions are difficult or even impossible to enforce and / or violating the fundamental rights of both the smoker and the hospitality entrepreneur. A popular strategy is also to plead for self-regulation as a more effective strategy than a legal ban. In addition, the industry tries to weaken bans by lobby efforts or through donations to political parties. Finally, tactics include advertising, lawsuits, and attempts to put a stop to the researcher's funding (WHO 2012; Landman and Glantz 2009)⁷⁴.

These tactics can also be found in the Netherlands, where the industry among others stated that the hospitality sector would have difficulties with enforcing the legal provisions and suffer severe revenue losses. They also initiated and supported the protest of the hospitality sector (Baltesen and Rosenberg 2009b) and supported smokers interest groups in the fight for their ‘right to smoke’.

Another tactic was ‘informing’ the media, which frequently happened indirectly through organisations sponsored by or otherwise related to the industry (Elzinga 2013).

And then, most importantly, there are the attempts of directly influencing policy-making through lobbying. The tobacco industry or tobacco producer interest groups liaise with political parties or individual politicians to gain support for their interests. There are different factors which make politicians susceptible to lobbying. Besides presenting possible personal advantages for politicians, arguments like the economic importance of tax revenues and employment also contribute to successful lobbying.

In the Netherlands there have been several examples of politicians having close ties with the tobacco industry. Among others the previous Christian Democrat Minister of Defence (2010-2012) was a paid advisor of British American Tobacco up until only some months before his appointment as Minister.

The spokesman of British American Tobacco stated that this minister was an important factor in realising their strategy. Piquant detail was that the minister did not report his activities for BAT though candidate ministers are obliged to reveal this information.⁷⁵ Another example is the current Minister of Health, who has been nicknamed in a TV documentary the ‘Minister of tobacco’ because of her policy of toning down the tobacco control measures, in particular the smoke-free regulations for the hospitality sector. In this documentary she was praised for her rather supportive attitude towards the tobacco industry and the hospitality sector. One of the interviewed tobacco industry lobbyists boasted about the regular and very helpful contacts with the Minister. Several quality media have revealed her rather close contacts with the tobacco industry and important members of tobacco-pressure groups.⁷⁶ Still, the Minister herself has always denied these contacts. Interestingly

74 Tobacco Industry Tactics Used to Undermine Smoke-free Policies.

http://global.tobaccofreekids.org/en/resources_detail/tobacco_industry_tactics_used_to_undermine_smoke_free_policies [accessed 21 March 214].

75 Hillen verzweeg advieswerk. NRC 22 November2010. http://vorige.nrc.nl/binnenland/article2643635.ece/Hillen_verzweeg_advieswerk [accessed 5 June 2012].

76 Bouma, J. Tabakslobby spreekt mee in Den Haag. Trouw 21 December 2012.

http://www.trouw.nl/tr/nl/4500/Politiek/article/detail/3087760/2011/12/21/Tabakslobby-spreekt-mee-in-Den-Haag.dhtml [accessed 21 March 2014]; Innige band minister en tabakslobby. Trouw 20 October 2011.

http://www.trouw.nl/tr/nl/5009/Archief/archief/article/detail/2982378/2011/10/22/Innige-band-minister-en-tabakslobby.dhtml

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enough, before her appointment as Minister she worked for VNO NCW, an employers’ interest organisation, as secretary of public health and labour market. It was in that position that she took a negative stance towards smoke-free workplaces.⁷⁷

Also for France various examples of tobacco industry lobbying can be found. As in some other countries the industry, and Philip Morris in particular, is very active in utilizing the media. Regular press luncheons are organised to brief the media or a number of selected journalists on the findings from research financed by the industry, which rebut the findings from the WHO and other organisations of standing. Additionally journalists are invited among others to sport and cultural events sponsored by Philip Morris. This ‘courtship of journalists’ is reported to have brought about considerable and positive press coverage and tight, personal contacts with prominent journalists (The ASPECT Consortium 2004).

Besides attempts to influence public opinion and political decisions directly, also more indirect strategies have proven to be successful. One interesting example are the science prizes awarded by Philip Morris, which were for the first time introduced in France. This was a full success, as it received the official patronage of the Ministry of Industry and Scientific Research and opened the door for

‘excellent contacts with the scientific advisor to President Mitterand’. This successful initiative was repeated in different EU Member States (The ASPECT Consortium 2004).

The tobacco industry lobby on EU level

The ASPECT consortium’s report ‘Tobacco or Health in the European Union’ gives a thorough insight how the tobacco industry lobby works on EU level (2004). According to this report the industry lobby started rather slow and was not a unified sector effort. It was done by the companies separately, with Philip Morris as the most important player, having a market share of 36.5 per cent in 2003. This may have contributed to the rather smooth introduction of the first EU tobacco control directives on labelling, advertising, tar yields and taxation around 1990.

The process of the revision of the Tobacco Products Directive in 2013 shows that the lobbying of the tobacco industry has become much more effective through the years. A thoroughly planned approach was developed, based on a systematic analysis of threats and opportunities. The industry saw it as one of the biggest threats that the growing health concerns would make the EU take the same direction as the United States, introducing strict advertising bans and smoke-free work and public places. Important strategies to ‘avoid or delay’ a strict advertising ban, as was introduced in the US, were among others to maintain a ‘blocking minority’ against an EC advertising ban and to prepare compromise proposals for the negotiations about EU directives to weaken the ban, e.g.

pleading for voluntary, self-regulation measures – which would ensure better commitment in the long run – instead of enforceable legal provisions.

The report also underlines that the complexity of EU decision making meant an opportunity for the tobacco industry: “The complexity of the EU decision making was arguably a mixed blessing for the tobacco industry. On the one hand, it meant that threats could come from many directions; on the other, it offered multiple points of potential influence. However, given that the industry was trying to prevent rather than introduce legislation, the complexity tended to work in their favour. They could

[accessed 21 March 2014]; Minister van Tabak. VPRO Documentary transcription. ZEMBLA 2011. http://zembla.vara.nl/Minister-van-tabak.10328.0.html[accessed 15 May 2012].

77 Minister van Tabak. VPRO Documentary transcription. ZEMBLA 2011. http://zembla.vara.nl/Minister-van-tabak.10328.0.html[accessed 15 May 2012].

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work at constructing legislative obstacles for at least six different levels: the Member States, the Council of Ministers, the European Parliament, the European Commission, EU officials or civil servants and a range of advisors and expert committees.

There is evidence that the industry has tried to influence all the above mentioned gremia. However, they have put most energy into, and had most success with, the first two groups.

The Member States have a fundamental impact on EU decision making, so the general principle of encouraging moderation about tobacco control at country level is attractive.” (The ASPECT Consortium 2004 p202).

The hospitality sector

The hospitality sector is another powerful opponent of a stricter smoke-free policy in pubs, restaurants, etc. (see also 8.2.3 and 8.2.4). The developments in the Netherlands provide an illustrative example for this. Besides the quite influential ‘Koninklijke Horeca Nederland’ (KHN) there are the smaller interest groups: ‘Red de Kleine Horeca Ondernemer’ (KHO, ‘Save the Small Hospitality Entrepreneur’). The KHN has played an important role in negotiating with the Minister of Health in the process of developing the smoking ban to safeguard the interests of the hospitality sector (Gonzalez and Glantz 2011).

In their position paper the KHN underlines the complexity of the issue, referring to the involvement of fundamental rights, the people's right to a healthy living environment, the smoker's right to consume a legal product and the entrepreneur's authority over their own premises. The paper states that the government has to find a compromise between these sometimes conflicting rights. It also emphasises that rules have to be clear and well enforced. Solutions to better manage the smoking ban are welcome, as long as they are equal, voluntary, feasible and affordable for all entrepreneurs.

Interestingly enough the KHN was initially not an opponent of a smoke-free policy. They were in fact against the exemptions for venues with a smoking area, for party tents, etc. The announcement of exemptions changed things. When the Minister decided in favour of exemptions the KHN distanced itself from the implementation of the smoke-free policy of the Ministry (Koninklijke Horeca Nederland 2010). Currently, the KHN is mainly fulfilling an advisory role for its members and is generally supportive of the implementation of the smoking ban (Elzinga 2013).

When the KHN accepted the smoke-free policies, small owner-run pubs felt no longer supported and formed their own action interest group, the KHO, representing around 1,200 venues and receiving financial support from the tobacco industry (Baltesen and Rosenberg 2009b). The KHO is clearly more fanatical. They oppose the ban publicly, using the media to influence public opinion and to create sympathy and support. A small study revealed that the tobacco industry uses KHO (and other smokers’ interest groups) to get media attention and sympathy for these ‘poor owners of small pubs’. The industry helps to make KHO visible by helping to organise demonstrations against the smoking ban (Elzinga 2013). KHO also supported owners of small pubs in lawsuits against the smoke-free regulations. They argued that insisting on a smoking ban in small pubs is unequal treatment, because small pubs do not have space and money to establish a separate smoking room. They addressed politicians with their pleas for exemption rules, referring to the fact that the law is not applicable to owner-run pubs since they do not have employees who need to be protected against passive smoking. They also refer to the financial damage and threatening bankruptcy for small pubs.⁷⁸

78 http://kleinehoreca.info/downloads/Brief_Tjeenk-Willink.pdf [accessed 24 March 2014].

110 Alliances and connections between stakeholders

There are alliances between the three stakeholders, which form the lobby against stricter tobacco regulation in the hospitality sector. They generally support each other’s efforts. Obviously the tobacco industry is closely related to the interest groups of tobacco producers. Both have close contacts with the smokers interest groups, like ‘Forces Nederland’ and ‘Stichting Rokers Belangen’

(SRB, Foundations Smokers’ Interests). There are also links with the hospitality sector. The initiator of SRB is also the ‘founding father’ of the interest group of small pub owners, KHO. Forces Nederland is also linked to KHO, since they share a board member. Both SRB and KHO receive financial, strategic and juridical aid from the industry (Baltesen and Rosenberg 2009b; Elzinga 2013).

KHN states not to have contacts with the tobacco industry (Koninklijke Horeca Nederland 2010).

KHO, in contrary, was found to have linkages to the tobacco industry. The founders of KHO were experienced smoking-lobbyists with connections to Forces Nederland, SRB and the SSI (Foundation Cigarette Industry) (Baltesen and Rosenberg 2009a). Quality newspaper NRC claims that the chairman receives €50,000 yearly from the tobacco industry (BAT), among others to enable proceedings (Baltesen and Rosenberg 2009a).