An Absence of Tobacco Evidence

September 11, 2009
By Patrick Basham

Tobacco policy currently rests on two claims: tobacco advertising and promotion are the major reasons why young people begin to smoke; and young people are particularly sensitive to the price of cigarettes. From these two claims follow the central elements of tobacco policy, namely that all forms of tobacco advertising and promotion, including tobacco displays, should be banned, and tobacco should be heavily taxed in order to prevent or at least reduce under-age tobacco use.

Unfortunately, neither of these claims nor policies meets the standards of evidence-based policymaking. Both are, instead, products of advocacy-based 'research' carried out by anti-tobacco lobby groups.

In evidence-based policymaking, as in evidence-based clinical medicine, practices and decisions are based on rigorous, systematic reviews of 'best practice', that is, therapies and interventions that work the best in reducing morbidity and mortality. Evidence, and evidence alone, not theory or tradition, drives practice.

The empirical record about tobacco advertising's affect on young people is decidedly mixed. Large independent studies have failed to find a statistically significant connection between tobacco advertising, consumption, and youth smoking. Indeed, the two major UK government-commissioned studies on tobacco advertising and marketing failed to find a causal link between advertising and young people starting to smoke.

This lack of evidence is confirmed by the fact that countries that have had advertising bans for a quarter century or more have not experienced statistically significant declines in youth smoking. Consumption and prevalence data from 145 countries finds little evidence that the entire range of tobacco control measures, including advertising restrictions and bans, has a statistically significant effect on smoking prevalence in any country.

Yet, the government pushes ahead with increasingly draconian restrictions on tobacco advertising through legislation to ban the display of all tobacco products. Even though the Department of Health claims that there is substantial evidence to show that such bans will reduce youth smoking, this is not the case.

The evidence in support of tobacco display bans, just as for tobacco advertising bans, is embarrassingly thin. Most studies show that tobacco displays have no statistically significant effect on youth smoking.

The most frequently quoted studies actually found that seeing tobacco displays had no effect on youth intentions to smoke. None of the so-called evidence about tobacco displays provides compelling behavioural evidence that any young person started smoking after seeing tobacco displays.

The evidence from the experience of other countries who have tried display bans does not support the claim that they reduce youth smoking. The government has repeatedly claimed that Canada, where several provinces have banned tobacco displays, shows that such bans result in fewer tobacco sales and fewer youth smoking.

The government knew that this claim, and the evidence that it was based on, was not true. Recently released DoH correspondence shows that the government was told in a March 2009 email that removing tobacco displays in Canada 'has not caused a decline in tobacco sales or discourage[ed] kids from smoking'.

Yet, the anti-tobacco lobby continues to push for even more far-reaching tobacco control legislation. This past week, Action on Smoking & Health (Ash) trumpeted a new study about the influence of tobacco packages as proof that putting all tobacco products in plain packages was now required. Ash's Deborah Arnott told the BBC that: "This research shows that the only way of putting an end to this misleading marketing is to require all tobacco products to be sold in plain packaging."

What Arnott did not tell the BBC was that she and Martin Dockrell, Ash's campaign manager, were not only two of the authors of the very study they so fulsomely praised, but Ash, along with the DoH, paid for the study.

Considerable previous research has shown that plain packaging of cigarettes will do nothing to reduce youth smoking. A study from Canada's York University, which asked young people about what effect plain packaging would have on their smoking decisions, found that 90 percent of daily smokers said they would smoke more or the same if cigarettes were in plain packages.

What then of high taxes to discourage or prevent youth smoking?

The claim that high tobacco taxes will reduce smoking is an odd one since we have been taught that smoking is addictive. If smoking is addictive, logic dictates that smokers will be insensitive to price increases.

But the claim also runs counter to what most experts say about how young people smoke. Most young smokers are experimental smokers who do not buy their cigarettes, but instead get them from friends or family, which makes them much less sensitive to high tobacco prices.

Data from the US National Household Survey on Drug Abuse recently showed that over 85 percent of 12-18 year old smokers consume the three most expensive brands of cigarettes, a fact that is also difficult to square with the claim that young people are price sensitive.

A series of American longitudinal studies has found tax increases have a statistically insignificant effect on preventing young people smoking. Last year, in a study of tobacco control policies in 27 European countries, it was found that, for adolescents, price was unrelated to smoking prevalence.

Tax increases do succeed, however, in increasing the risk of smoking. Jerome Adda and Francesca of University College London found that a one percent increase in tobacco taxes increases smoking intensity by 0.4 percent, which leads the smoker to inhale more dangerous chemicals and causes cancer deeper in the lung.

The result of public health policymaking absent of evidence is tobacco policy that repeatedly fails to address youth smoking. While the government is entitled to its own opinion about the most effective ways to reduce smoking, it is not entitled to its own evidence.

Patrick Basham is director of the Democracy Institute and a Cato Institute adjunct scholar. His recent tobacco books are Butt Out! How Philip Morris Burned Ted Kennedy, the FDA & the Anti-Tobacco Movement, and Hidden in Plain Sight: Why Tobacco Display Bans Fail (with John Luik).
http://www.cato.org/pub_display.php?pub_id=10532

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Tobacco Regulation Is Expected to Face a Free-Speech Challenge
June 16, 2009
By DUFF WILSON
The marketing and advertising restrictions in the tobacco law that Congress passed last week are likely to be challenged in court on free-speech grounds. But supporters of the legislation say they drafted the law carefully to comply with the First Amendment.
The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.
The controversy, legal experts say, involves tension between the right of tobacco companies to communicate with adult smokers and the public interest in preventing young people from smoking.
Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties U nion, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools.
“Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody,” Daniel L. Jaffe, executive vice president of the Association of National Advertisers, said in an interview Monday. “We think this creates very serious problems for the First Amendment.”
His group represents 340 companies spending more than $100 billion a year on marketing and ads.
But supporters of the law say studies conducted since 2001 provide evidence that young people respond to cigarette marketing even when it is aimed at adults, showing that new restrictions are needed to curb illegal, as well as highly addictive and harmful, under-age smoking.
“The bill has been carefully drafted, and I am confident that the provisions will be upheld,” Henry A. Waxman, Democrat of California and prime sponsor in the House of the legislation, said in a statement Monday.
Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, an advocacy group that was a leader in pushing for the law, said: “Frankly, the tobacco industry and the advertising industry have never heard of an advertising restriction that they thought was constitutional. In this case, great care was taken to permit black-and-white text advertising that permits them to communicate whatever truthful information they have.”
President Obama announced last week that he would sign the legislation. A signing ceremony has not yet been scheduled, a White House spokesman said Monday. The ad restrictions would go into effect about a year after the legislation becomes law.
Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.
The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.
But the tobacco industry denies that any of its advertising is aimed at young people.
The new restrictions, based on regulations the Food and Drug Administration tried to issue in 1996, would be broad and deep. There is the 1,000-foot ad-free radius around schools. The black-and-white ad strictures apply to stores and to print ads except in publications with an adult readership of 85 percent or more.
Tobacco companies would also be prohibited from sponsoring sporting or cultural events or giving away T-shirts or caps. Any form of audio advertising would be limited to words without music. (Radio and television ads of tobacco products have been banned since 1971.)
The A.C.L.U. wrote a letter to senators on June 1 arguing that the legislation’s limits on commercial speech were broader than needed to accomplish the goal of reducing under-age smoking. The group suggested stronger enforcement of false-advertising laws and continuing efforts to warn the public, including young people, of the harms of tobacco products.
“The answer here is to provide countervailing messages,” Michael Macleod-Ball, chief legislative and policy counsel for the A.C.L.U. in Washington, said Monday. “Discourage smoking, rather than restricting this form of speech that has not been shown to have a sufficiently close nexus with youth smoking.”
As for the tobacco companies, it was unclear which would initiate a lawsuit. “We are examining all of our options at this point,” said Michael W. Robinson, spokesman for Lorillard Tobacco, which brought the Massachusetts suit. “Stay tuned.”
R.J. Reynolds has not decided on legal challenges, spokeswoman Maura Payne said.
Altria Group, which owns Phillip Morris, the nation’s largest cigarette company, and was the only major tobacco company to endorse the legislation, said in a statement last week that it believed some of the marketing restrictions were illegal.
David Sylvia, an Altria spokesman, said Monday in an e-mail message, “Given that the bill has not yet been signed, and given that the legislation would require regulation writing on this issue, it is too early for us to be commenting on the constitutionality of the advertising related regulations.”
In the 2001 case, the Supreme Court struck down a Massachusetts ban on tobacco ads, including outdoor billboards and signs that could be seen within 1,000 feet of any public playground and elementary or secondary school. That ban, which would have eliminated tobacco advertising in about 89 percent of Boston, is virtually identical to one standard in the new federal law.
The Supreme Court found it to be an unconstitutional limit of the First Amendment right to free speech in part because it was simply too broad. The effect “will vary based on whether a locale is rural, suburban, or urban,” Justice Sandra Day O’Connor wrote for the majority. “The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.”
Kathleen Dachille, a University of Maryland law professor and director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy, said the Massachusetts case turned on a lack of evidence linking youth smoking, which is illegal, to tobacco marketing ostensibly aimed at adults. She said the link has been reinforced in recent years by reports of the Institute of Medicine, the National Cancer Institute, a federal appeals court ruling on a tobacco-company fraud case, and at least a dozen peer-reviewed studies.
A May 28 report by the Congressional Research Service, a branch of the Library of Congress, noted the difficulty of making advertising restrictions that are broad enough to be effective, yet narrow enough to be related to the government’s stated interest.
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