Cigarette manufacturers are overstepping the line in their opposition to Australia’s new packaging rules, says Mallen Baker

British American Tobacco has infuriated Australian legislators with a cheeky response to the enforcement of plain packaging for cigarettes. Its French brand Winfield has started putting pictures of Kangaroos on its packaging, with the legend “an Australian favourite”.

From December 2012, all cigarettes sold in Australia have to be sold in plain packaging. The theory is that the absence of powerful branding will be an additional factor helping to wean citizens off the deadly habit.

The tobacco companies are outraged, and mindful of the fact that other governments are watching the experiment with some interest. They are taking the Australian government to court claiming that the measure infringes their intellectual property rights.

Not only that, Philip Morris International has been running adverts encouraging people to lobby the government against the ban. “It’s time to tell the government you have had enough” the company says, encouraging you to visit the website.

Health campaigners point to the companies’ bitter opposition as evidence that the measures will work in their stated aim to reduce smoking. Personally, I’m not convinced. I don’t believe that committed smokers will suddenly quit simply because the packs are a bland green rather than Marlboro red, or whatever colour they are used to buying.

But I can certainly see that it may well have an impact on which brand people choose to smoke. And, after all, in relatively mature markets the game is all about how large a percentage of committed smokers you can tempt away from competitor brands. As the next generation of smokers comes in to replace those that have died off, it may well be that the cheapest cigarettes take over from the cigarettes that carry a particular brand promise, whether it be rugged macho man, or sophisticated professional.

And that will discriminate against the current owners of the biggest slice of market share.

So, on that basis, I personally think the policy is mistaken. It won’t achieve its aim. It’s no surprise that this is also the opinion of the tobacco companies, and one reason why they are fighting so hard.

Benefiting citizens

But the tobacco companies have nevertheless stepped over the line. If the policy is a mistake, it is still a mistake that is the government’s to make. If the government is acting in good faith, believing that the actions it takes will benefit the health of its citizens, it should not be the role of business to thwart those actions. The companies cannot prove that those health benefits won’t be realised, and they have no democratic legitimacy in seeking to undermine the initiative.

It’s not as though no reasonable person might believe that the initiative will reduce smoking. A recent poll on the website of the Sydney Morning Herald showed 57% of people believed it would make a difference.

It is, of course, right that the voice of businesses should be heard when evaluating policy proposals. I support the right of any company of whichever industry to be able to make representations to lawmakers and to draw attention to the likely impact that policies will have.

Such lobbying leads to informed policy making. So long as legislators can hear the arguments from all sides, and then make their own decisions. What people most often worry about when it comes to corporate lobbying is that companies are able to have their voices heard more loudly because they buy influence, or they gain exclusive access to the minister’s ear. But that fear can be dealt with through proper checks and balances, and should never get in the way of encouraging healthy, legitimate lobbying.

But what the tobacco companies are now doing – leading a campaign aiming to use legal technicalities to get the law struck out – goes well beyond such legitimate lobbying.

That applies as well to their argument that if the policy is introduced they will be owed huge damages as a consequence. If every single government policy that will have some negative impact for somebody can lead to lawsuits for damages, the consequences on the ability of any nation to provide good governance will be corrosive.

British American Tobacco can have its fun with its kangaroos. But the companies are stepping well outside their area of legitimate involvement in trying to frustrate democratic will in Australia. They should stop.

Mallen Baker is founder of Business Respect and a contributing editor to Ethical Corporation.