Abstract:

This article aims to analyze the relationship between the Brazilian government’s adoption of a regulatory measure with a strong impact on the population and the opposition by invested interest groups. The methodology involves the analysis of official documents on the enforcement of health warnings on tobacco products sold in Brazil. In parallel, a search was conducted for publicly available tobacco industry documents resulting from lawsuits, with the aim of identifying the industry’s reactions to this process. The findings suggest that various government acts were affected by direct interference from the tobacco industry. In some cases the interventions were explicit and in others they were indirect or difficult to identify. In light of the study’s theoretical framework, the article provides original information on the Brazilian process that can be useful for government policymakers in the strategic identification of tobacco control policies.

Keywords:
Tobacco; Warning; Health Communication

Resumen:

El propósito de este artículo es entender la relación que se establece entre la adopción por parte del gobierno de una medida reguladora, con un fuerte impacto en la población, y la reacción de grupos de interés contrarios. La metodología se aplica al estudio de documentos oficiales relacionados con la implementación de las advertencias sanitarias en los productos del tabaco comercializados en Brasil. Simultáneamente, se realizó una búsqueda de documentos a disposición pública sobre los resultados de litigios contra la industria del tabaco, con el objetivo de identificar las reacciones del sector en este proceso. Los resultados de este estudio sugieren que varias acciones del gobierno sufrieron una interferencia directa de la industria del tabaco. En algunos casos las intervenciones eran explícitas y en otros eran indirectas o de difícil identificación. A la luz del marco referencial adoptado, se ha presentado información original sobre el proceso brasileño, que podrá ser útil para los gestores del gobierno en la identificación estratégica de políticas de control al tabaco.

Palabras-clave:
Tabaco; Advertencia; Comunicación en Salud

Introduction

Smoking is known to cause disease and death in an important proportion of tobacco product users in Brazil and the world as a whole ¹1. World Health Organization. WHO report on the global tobacco epidemic, 2015: raising taxes on tobacco. http://apps.who.int/iris/bitstream/10665/178574/1/9789240694606_eng.pdf?ua=1 (accessed on 17/Jul/2015).
http://apps.who.int/iris/bitstream/10665... ^,22. Corrêa PCRP, Barreto SM, Passos VMA. Smoking-attributable mortality and years of potential life lost in 16 Brazilian capitals, 2003: a prevalence-based study. BMC Public Health 2009; 9:206.. To reverse the alarming global smoking epidemic, in 2003 the 56^th World Health Assembly approved the first international public health treaty, including a set of inter-sector measures: the World Health Organization Framework Convention on Tobacco Control (WHO-FCTC). The Brazilian National Congress ratified the convention in 2005, incorporating the rules into the country’s domestic legislation (Decree 5,658/2006³3. Presidência da República. Decreto nº 5.658, de 2 de janeiro de 2006. Promulga a Convenção-Quadro sobre Controle do Uso do Tabaco. Diário Oficial da União 2006; 3 jan.. Since then, the measures provided in the treaty serve as the roadmap of obligations to be implemented by the Brazilian government, and the National Tobacco Control Policy has been based on these duties.

One of the strategies recommended by the WHO-FCTC is the adoption of health warnings on tobacco product packaging, and since 1988 Brazil has made progress in the enforcement of this measure.

Canada and Brazil took the leadership in the early 21^st century by including pictograms referenced to the wording in the warnings.

Product packaging is much more than simply a container. Packages add value to the product and make it attractive, encouraging its purchase and repurchase ⁴4. Meyers H, Lubliner MJ. The marketer's guide to successful package design. Chicago: NTC Business Books; 1998.. The addictive capacity of tobacco products depends on various factors such as the dose, administration route, ingredients, additives (flavorizers), characteristics of the cigarette’s structural design, and the package’s or product’s own “attractiveness” ⁵5. Henningfield JE. TobReg presentation. In: 3rd Meeting of Key Facilitators Interim Convention Secretariat/TFI & Contracting Parties. Ottawa: WHO Framework Convention on Tobacco Control; 2006..

Some characteristics make cigarette packaging even more visible, like the fact that the pack is not discarded after opening, that smokers keep the pack with them throughout the day, a high degree of social visibility (or cigarette packs as “badge products”), and constant display to others while handling the pack, which thus functions as a form of advertising ⁶6. Wakefield M, Morley C, Horan JK, Cummings KM. The cigarette pack as image: new evidence from tobacco industry documents. Tob Control 2002; 11 Suppl 1:i73-i80..

One measure proposed by the WHO-FCTC, Article 11, is the inclusion of health warnings on tobacco product packaging ⁷7. World Health Organization. WHO Framework Convention on Tobacco Control. http://whqlibdoc.who.int/publications/2003/9241591013.pdf?ua=1 (accessed on 17/Jul/2017).
http://whqlibdoc.who.int/publications/20... . When included visibly and with illustrations, such warnings are an essential component of national smoking reduction programs, especially because they reach the population with less schooling, where smoking prevalence has been concentrated more recently ⁸8. Coordenação de Prevenção e Vigilância, Instituto Nacional de Câncer. Brasil: advertências sanitárias nos produtos de tabaco 2009. http://www2.inca.gov.br/wps/wcm/connect/33aef700491792eaaed4bf0ece413a77/Livro+-+Brasil_+Advert%C3%AAncias+Sanit%C3%A1rias+nos+Produtos+do+Tabaco+-+2009+-+vers%C3%A3o+Portugu%C3%AAs.pdf?MOD=AJPERES&CACHEID=33aef700491792eaaed4bf0ece413a77 (accessed on 17/Jul/2015).
http://www2.inca.gov.br/wps/wcm/connect/... .

Extensive evidence from various sources shows that health warnings are an effective tool for ⁹9. Hammond D, Fong GT, Borland R, McNeill A, Cummings KM, Hastings G. Effectiveness of cigarette warning labels in informing smokers about the risks of smoking: findings from the International Tobacco Control (ITC) Four Country Survey. Tob Control 2006; 15 Suppl 3:iii19-25.^,1010. Borland R, Yong HH, Wilson N, Fong GT, Hammond D, Cummings KM, et al. How reactions to cigarette packet health warnings influence quitting: findings from the ITC Four Country Survey. Addiction 2009; 104:669-75.: (1) informing smokers and non-smokers on the dangers of smoking; (2) providing help and information to smokers to increase the efficacy of cessation; (3) encouraging non-smokers, including young people, to not start smoking; and (4) counteracting misleading messages and seductive images promoted by the brand on the cigarette packs.

According to a study published in 2012 ¹¹11. Partos TR, Borland R, Yong H-H, Thrasher J, Hammond D. Cigarette packet warning labels can prevent relapse: findings from the International Tobacco Control 4-Country policy evaluation cohort study. Tob Control 2012; 22:e43-50., health warnings can also help former smokers continue cessation (as measured a year after quitting). Warnings are likely to be present at moments of increased risk of relapse, and although they may not be perceived consciously, even weak effects on motivation can favor individuals’ decisions to maintain cessation over the course of various crises, thus producing marked effects on relapse rates.

A growing body of evidence has shown that health warnings on tobacco products have an impact on smoking prevalence ¹²12. Huang J, Chaloupka FJ, Fong GT. Cigarette graphic warning labels and smoking prevalence in Canada: a critical examination and reformulation of the FDA regulatory impact analysis. Tob Control 2014; 23 Suppl 1:i7-12.. A simulation model on the impact of different policies to reduce tobacco consumption showed that health warnings accounted for 8% of the reduction in smoking prevalence from 1989 to 2010 ¹³13. Levy D, Almeida LM, Szklo A. The Brazil SimSmoke policy simulation model: the effect of strong tobacco control policies on smoking prevalence and smoking-attributable deaths in a middle income nation. PLoS Med 2012; 9:e1001336..

A recently published meta-analysis corroborated the findings from other studies: health warnings with pictograms are superior to text-only warnings, for both smokers and non-smokers, in motivation for non-initiation, and in smoking reduction and cessation ¹⁴14. Noar SM, Hall MG, Francis DB, Ribisl KM, Pepper JK, Brewer NT. Pictorial cigarette pack warnings: a meta-analysis of experimental studies Tob Control 2015; 25:341-54..

Health warnings are one of the most cost-effective tobacco control measures, since the implementation costs are borne by the manufacturer while the benefits accrue to public health. Warnings are effective measures to inform all social strata, groups, and populations about the magnitude of dangers from tobacco use.

Objective

The purpose of this article is to describe the enforcement of health warnings on tobacco products in Brazil, with emphasis on interference by the tobacco industry, seeking a more in-depth understanding of the relationship between a government measure with strong social impact and the tobacco industry lobbying to oppose the measure.

Methodology

A qualitative study was performed through a survey and analysis of the legislation and a search of internal tobacco industry documents on file at the University of California, San Francisco (UCSF), on the website called Legacy Tobacco (https://industrydocuments.library.ucsf.edu/tobacco/).

With the aim of identifying the legal backing for the enforcement of health warnings in Brazil, a search was conducted for laws, degrees, regulations, executive orders, and other similar previous or current legal provisions for the Brazilian government’s adoption of health warnings. Documents that bore a relationship to the enforcement of warnings or that clearly referred to the adoption of health warnings were selected and comprised the legal framework, allowing a register of the entire historical evolution in this process. We also selected information from some court cases that related to this process to identify the claims by the tobacco industry and related organizations in attempts to block their products’ regulation.

A document survey was conducted through a search and analysis of industry documents in the archives of internal tobacco industry documents at UCSF, according to the internationally standardized methodology for studies using internal industry documents ¹⁵15. Anderson SJ, McCandless PM, Klausner K, Taketa R, Yerger VB. Tobacco documents research methodology. Tob Control 2011; 20 Suppl 2:ii8-11., with the following stages, briefly: an initial search from 1990 to 1995 with the key words Advertências Sanitárias de Tabaco, Embalagens de Produtos de Tabaco, and Tabagismo in Portuguese and the descriptors Brazil, warning label, health warnings, and Brazilian health warnings in the search in English. The documents catalogued in the UCSF archives receive a Bates number, or identification number in this archive. We also conducted a search of internal tobacco company documents in Brazilian publications.

A total of seventeen relevant documents were found and analyzed, of which eight were selected and cited in the current article.

Based on these stages, we proceeded to analyze the measure’s enforcement in Brazil, identifying possible interferences by the tobacco industry throughout the process.

Principal findings

Description and analysis of the historical process of health warnings in Brazil

The implementation of health warnings on tobacco products in Brazil can be classified in three stages:

First stage: single and generic text-only health warning (1988 to 1994)

The first regulatory measure by the Brazilian government was through the Ministry of Health with Administrative Ruling 490/1988¹⁶16. Ministério da Saúde. Portaria nº 490, de 25 de agosto de 1988: dispõe sobre as inscrições nos maços de cigarro e outras formas de embalagem de fumo sobre o perigo de fumar à saúde. Diário Oficial da União 1988; 26 aug., which introduced a single text on all packets of cigarettes, cigars, cigarillos, and other tobacco products with the message: Warning From The Brazilian Ministry of Health: Smoking is Harmful to Health. This text was to be printed “clearly and legibly in contrasting colors and on an ostensive area” of the package. Importantly, the ruling did not specify the exact place for the message, or the size and color of the text, merely requiring the use of contrasting colors, which allowed tobacco companies to show scarcely visible warnings and preventing their ready visualization by the consumer.

The same warning message was also required to be displayed or broadcast in all tobacco product advertisements on TV, radio, and other media outlets like magazines, posters, and point-of-sale materials, as determined by the Brazilian Federal Constitution¹⁷17. Presidência da República. Constituição da República Federativa do Brasil 1988. http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm (accessed on 20/Jun/2015).
http://www.planalto.gov.br/ccivil_03/con... , Article 220, paragraph 4, on Social Communication, which provides that advertising of tobacco products is subject to legal restrictions and whenever necessary must contain warnings on the dangers resulting from their use. The Constitution’s provision of restrictions on advertising and enforcement of health warnings gave greater weight and backing to such measures, thus expanding the government’s power in future regulations.

Two other Ministry of Health rulings in 1990 modified the 1988 regulation. The first was Administrative Ruling 731/1990¹⁸18. Ministério da Saúde. Portaria nº 731, de 31 de maio de 1990. Diário Oficial União 1990; 01 jun., which provided, among other items, that the warning should be displayed in bold black print on a totally white background or bold black print with a red background on one of the packet’s sides. This Ruling determined that in cigarette advertisements, the warning had to cover 20% of the total advertisement area.

The second was Administrative Ruling 1,050/1990¹⁹19. Ministério da Saúde. Portaria nº 1.050, de 08 de março de 1990. Diário Oficial União 1990; 10 aug., which determined the size of the lettering on the warning, in black print on a white rectangle, and the requirement that the warning occupy two lines. However, there was a reversal in the warning’s size in advertisements, now 10% rather than the 20% in the previous Ruling.

The archives of tobacco industry documents included a story in the Tobacco Journal International, an international trade journal for tobacco executives, dated to 1990, presenting the new government regulations with the title “Brazilian government declares war on smoking”, saying that this was the headline in various Brazilian newspapers at the time. The story refers to Administrative Ruling 731 of May 31, 1990, which dealt with restrictions on advertising, a ban on tobacco sales to minors, a ban on merchandising, mandatory inclusion of warnings, and other measures. However, according to the trade journal itself:

“The executives of the cigarette manufacturing companies are not terribly bothered by the new restrictions introduced by the Ministry of Health and do not expect any significant changes on the Brazilian cigarette market. In fact, many items included in the measures were already observed by the industry on a voluntary basis, and sports events have not been sponsored since 1987” (Bates: 202707521) ²⁰20. Crescenti R. Brazilian government declares war on smoking, 1990. British American Tobacco. http://industrydocuments.library.ucsf.edu/tobacco/docs/kfny0201 (accessed on 20/Jun/2015).
http://industrydocuments.library.ucsf.ed... .

This declaration clearly shows the tobacco industry’s view that regulations in the Administrative Ruling would not have an impact on the Brazilian market.

Second stage: proposed pictograms (1994 to 1995)

The period from late 1994 to mid-1995 witnessed various attempts by the Brazilian government to adopt strong tobacco control measures, and opposition by the tobacco industry, leading to major setbacks. The cigarette manufacturers’ internal documents provide proof of such opposition.

Brazilian Ministry of Health Ruling 2,169 was issued in late 1994 ²¹21. Ministério da Saúde. Portaria nº 2.169, de 29 de dezembro de 1994. Diário Oficial União 1995; 02 jan., requiring tobacco companies to insert eight warnings with rotating messages accompanied by pictograms on an area equal to 25% of the two largest sides of tobacco product packets, as well as in all direct advertising messages in TV, cinema, radio, newspapers, magazines, and online and other media, where the warning was required to cover 10% of the total size of the advertisement or publicity piece (Figure 1).

The introduction of these new warnings meant a significant step forward in tobacco control, for various reasons: (1) the warnings included more specific and sensitive issues such as nicotine addiction; (2) the ruling required the inclusion of warnings even in indirect advertising and merchandising; (3) at the time, it was an innovative and progressive initiative, since other countries were only adopting text warnings, without pictograms; (4) another visionary provision in this measure was the exclusion of the word “may” from the warnings, making them more assertive, and; (5) the ruling required warnings even in institutional advertising.

The document below describes the tobacco industry’s internal flow of information on the new measure’s adoption in Brazil.

Document from British American Tobacco (BAT), January 10, 1995:

“For your information:

I attach details of a new regulation on health warnings in Brazil, which was passed by the government on 29 December. In particular, you will note the graphic nature of the warnings.

I wanted you to be aware of this because we understand that these warnings were devised by the World Health Organization. With their successful introduction in Brazil, we can now expect WHO to promote similar pack labeling in other parts of the world” (Bates: 502568675) ²²22. Bryan MH. New health warnings in Brazil. British-American Tobacco Company Limited. http://industrydocuments.library.ucsf.edu/tobacco/docs/ffbg0210 (accessed on 20/Jun/2015).
http://industrydocuments.library.ucsf.ed... .

“I attach a copy of a note (...) which explains the health warning regime being introduced in Brazil. You will note that this contains a requirement for pictographs to be included. Perhaps you may wish to pass a copy of this to the tobacco documentation centre - although I believe there is likely to be a legal challenge to this regime, which has a very good chance of being successful” (Bates 502568684) ²³23. BAT Industries. Note from Stuart Chalfen to Peter Clarke enclosing notes on new health warning regime. British American Tobacco. http://industrydocuments.library.ucsf.edu/tobacco/docs/ssbf0201 (accessed on 20/Jun/2015).
http://industrydocuments.library.ucsf.ed... .

Another document from BAT dated January 12, 1995, showed clearly how the company was organized to lobby for the measure’s reversal.

The latest in the restrictions against tobacco have come from Brazil. Inspired by the WHO as usual, but definitely going overboard, the government in Brazil has just published Administrative Ruling 2,169 of December 29, 1994, into its laws.

“Of particular concern is the use of pictorial (graphic) language to communicate the warnings. This is a feel of things ahead, and copy of the Ruling is included herewith for your perusal and alert. Lobbying is underway to redress the situation, and you will be kept posted of progress if any” (Bates: 502568665) ²⁴24. British-American Tobacco Company Limited. Brazil HWC. British American Tobacco. http://industrydocuments.library.ucsf.edu/tobacco/docs/tzvg0210 (accessed on 20/Jun/2015).
http://industrydocuments.library.ucsf.ed... .

In January 1995, a committee was assembled with representatives from government, the tobacco industry, and the media, under Brazilian Ministry of Health Ruling 50/1995²⁵25. Ministério da Saúde. Portaria nº 50, de 17 de janeiro de1995. Diário Oficial da União 1995; 18 jan., in charge of studying and proposing legally valid instruments to implement the terms of Administrative Ruling 2.169, with the objective of informing consumers on the harms of using tobacco products, and restricting their advertising.

Another document from Philip Morris International, dated January 16, 1995, reports on suspension of the measure and definition of the task force:

“Brazil: The new Minister of Health has suspended implementation of the ruling which imposed large, pictorial health warnings and restrictions on advertising. The Minister appointed a five-member committee to recommend new legislation; PM and BAT will each appoint one member to the committee, with the other three members coming from the Health, Justice and Communications ministries” (Bates: 2073950752) ²⁶26. Philip Morris International. http://industrydocuments.library.ucsf.edu/tobacco/docs/rsyn0063 (accessed on 16/Jan/2015).
http://industrydocuments.library.ucsf.ed... .

Thus, in March the same year, Inter-Ministerial Ruling 477/1995 was issued ²⁷27. Ministério da Saúde. Portaria Interministerial nº 477, de 24 de março de 1995. Diário Oficial da União 1995; 28 mar., signed by the Ministers of Health, Justice, and Communication, publishing the content of warnings on the harms from consumption of tobacco and tobacco products according to the understandings reached in the committee established under Ruling 50.

The conditions for displaying the warning messages were laid out in the attachment to the Ruling, under the name of letter of commitment. The letter was drafted by the committee and signed by the Brazilian Association of Radio and Television Broadcasters (ABERT), Brazilian Association of Advertisers (ABA), Brazilian Association of Advertising Agencies (ABAP), National Association of Newspapers (ANJ), National Association of Magazine Publishers (ANER), and Brazilian Tobacco Industry Association (ABIFUMO). This letter was attached to Administrative Ruling 477²⁷27. Ministério da Saúde. Portaria Interministerial nº 477, de 24 de março de 1995. Diário Oficial da União 1995; 28 mar. with the following statement:

“...on behalf of the industries they represent, this Letter of Commitment, by which they express their agreement that the display of warning clauses and the promotion of commercial advertising for tobacco products will comply with the following conducts in their membership’s corresponding areas of activity:

Cigarette manufacturing companies (...) are required to insert on their packaging and in advertising, as determined herein, warnings to consumers on the dangers resulting from tobacco use.

(...) compliance with the introduction of the new messages” with which the Ministry of Health intends to warn consumers on the hazards of smoking.

The letter of commitment further addresses the rules for printing and displaying the messages, as follows:

The possibility of the manufacturer deciding on the criteria for rotating the messages (when each warning is displayed every five months, alternatingly) or simultaneity (when all the warnings are displayed at the same time).

Size, color, and type of lettering in the text to be used both on the packaging and on the tobacco products’ advertising in newspapers, magazines, and posters, as provided in Administrative Ruling 1,050 of 1990.

Criteria for running the advertisements on radio, TV, and cinema.

The new Ruling introduced six warnings to be adopted on the sides of cigarette packs and other tobacco products and in the advertisements, but removed the previously defined pictograms. The phrases were:

“Warning by the Ministry of Health:

Iceland faced similar interference to that in Brazil when it adopted pictorial warnings in 1985 ²⁸28. Blondal T, Magnusson G. Innovation in iceland: graphic health warnings on tobacco products. N Y State J Med 1985; 85:405-6.. After heavy opposition by the industry, the country had to repeal the measure in 1996, leading countries like Norway to hold back on pictograms, adopting text-only messages ²⁹29. Hiilamo H, Crosbie E, Glantz SA. The evolution of health warning labels on cigarette packs: the role of precedents, and tobacco industry strategies to block diffusion. Tob Control 2014; 23:e2.. Illustrated messages were only resumed in 2000 by Canada, followed by Brazil in 2001, when the first group of pictorial health warnings began to circulate. In 2004 the Brazilian Ministry of Health launched the second group, and the third group of pictorial warnings is circulating at present. By 2015, 77 countries had implemented pictorial warnings (the equivalent of roughly half the world population) ³⁰30. Canadian Cancer Society. Cigarette package health warnings: international status report. s.l.: Canadian Cancer Society; 2014..

Third stage: about-face and resumption of text-only warnings (1995 to 2001)

All this political maneuvering by the tobacco industry led to major setbacks for tobacco control in Brazil by tacitly revoking Administrative Ruling 2,169. In other words, the new provision (Administrative Ruling 77) began to regulate the matter, which had already been addressed in the previous provision (Administrative Ruling 2,169), automatically overriding it.

Thus, Administrative Ruling 2,169 never entered into force, due to interference by the tobacco industry in the decision-making process. This reversal led to: (1) the exclusion of pictograms, with warnings limited to text-only messages (pictograms were not adopted until 2001); (2) exclusion of the message on nicotine addiction; (3) exclusion of warnings from indirect advertising and merchandising; (4) resumption of the word “may” in the warning phrases, adopted in 1999; and (5) non-requirement of warnings in institutional advertisements, a situation that persists to this day.

In another document from British American Tobacco, one executive instructs another on the trends in regulation in various countries, making clear how decisive the tobacco industry’s participation had been in the process in Brazil. The executive states explicitly that the back-stepping from Administrative Ruling 2,169 was due to direct interference by industry, and then goes on to discuss the recommendation on voluntary adoption of measures.

“Brazil has the most recent experience with attempts to push through pictorial health warnings. This was however stymied following presentations by industry there. The main premise was that the proposed legislation was perceived to be against the freedom of commercial speech and unconstitutional in that country. We do not yet have much detail on this, but you could perhaps seek for more information directly from Brazil. Your legal advisors should be able to help out on this one.

(...) we very much prefer that matters relating to the industry be dealt with by way of voluntary codes or agreements, instead of regulations from government(...) It is not as if we are not a responsible business operator, and we welcome dialogue, so long as their intentions are noble and transparent” (Bates: 502573143 and 502573144) ³⁰30. Canadian Cancer Society. Cigarette package health warnings: international status report. s.l.: Canadian Cancer Society; 2014..

The contents of these internal documents reveal blatant interference by the tobacco industry, which succeeded in establishing and being part of a government-appointed committee to discuss regulation in its own interest. This process clearly shows a complete conflict of interests and the government weakness in allowing such interference, contradicting all the objectives that public health defends.

In the wake of this setback, the Smoker’s Health Protection Association (ADESF) filed class action for damages by Souza Cruz and Philip Morris.

Unfortunately, the lawsuit failed, but it is interesting to analyze the arguments by the largest tobacco companies operating in Brazil. The two companies took the same position, demonstrating that when the issue is to oppose government tobacco control measures, the companies fighting for the market join together to reinforce a single strategy, becoming stronger in the faceoff. As we verified in the internal documents, both companies claimed that they had never refused to include nicotine addiction as a warning. However, since it is the Brazilian Ministry of Health’s exclusive responsibility to define the content of the warnings, and since the Ministry had failed to do so, highlighting that Administrative Ruling 477 was drafted by the Ministries of Health, Justice, and Communications, industry contended that the government had excluded the warning on addiction either because consumers already had full knowledge of this issue or because there was no evidence to back the assertion.

Importantly, the tobacco industry omitted the fact that it was present in the committee responsible for negotiating Administrative Ruling 477.

The law firm representing Philip Morris in Brazil, Pinheiro Neto Advogados, sent the following English translation of a document on a newspaper story published in O Estado de S. Paulo:

“Law suit accuses tobacco industry of inducing addiction/For the first time in Brazil, a class action seeks indemnity for damages caused by cigarettes/By Maria Alice Rosa”.

“Amidst the polemics as to whether or not smoking in public areas should be permitted, a larger step was taken with a lawsuit directly targeted at the cigarette industry. For the first time in Brazil this industry is accused of availing itself of misleading and abusive advertising to induce cigarette consumption and, consequently, addiction...”.

“In order to change smokers’ status from guilty individuals to victims - who are first induced to buy the product and then keep up their habit - the Smoker’s Health Protection Association filed a court action claiming that the companies Souza Cruz and Philip Morris companies - which account for 90% of cigarette sales in Brazil - indemnify smokers for property and moral damages”.

“The action is mainly based on the Consumer Protection Code, which requires that all information on the risks caused by the product be provided. According to the Code, such information must be ostensively displayed by the manufacturer”.

“Ministry of Health admits that the interests of the sector prevail”.

“We wanted to display the following warning on the packs: ‘This product is addictive’, but the tobacco industry wouldn’t let us”, admits the head of tobacco control of the National Institute of Cancer (INCA) of the Ministry of Health, Vera Luiza da Costa e Silva (...) Vera says that the Ministry is not empowered to bind any company without legal support. “Only a law would solve the problem, and this is the responsibility of Congress”, she says.

“The warnings displayed by the Ministry of Health on the cigarette packets say, among other things, that the product may cause lung cancer, chronic bronchitis, and lung emphysema. ‘This statement leads to doubts. The government should say it ‘causes’ and not ‘it may cause’, since scientific studies worldwide have evidenced this fact’, says Luiz Carlos Monaco, attorney and plaintiff in the suit against the industry”.

(...)

“The companies Souza Cruz and Philip Morris, which are the target of the action filed by the Smoker’s Health Protection Association, would rather not comment on the matter until a final decision is handed down by the Supreme Court (STJ). Souza Cruz, however, released a note in which it states that ‘any refund for products that have been purchased and consumed seeks to make impossible the marketing of a legal product’. In the document Souza Cruz opposes the risk of addiction. ‘As to the smoker’s capacity of freely deciding on whether to use the product, millions of people worldwide know that people are giving up smoking more and more each day’” (Bates: 2047343900) ³²32. Lawsuit accuses tobacco industry of inducing to addiction. http://industrydocuments.library.ucsf.edu/tobacco/docs/jrgc0013 (accessed on 13/Nov/1995).
http://industrydocuments.library.ucsf.ed... .

This latter episode, in which a strong public health measure was reversed, shows isolated action by a single government representative, while the tobacco industry presented itself as an organized lobby group, gathering the necessary information, identifying and accessing the key players, and definitely interfering in government policy, resulting in non-enforcement of the measure at the time.

Such interference by the tobacco industry was only possible because of its easy access to government representatives, as noted in the following document in which a BAT executive grants an interview.

“PT: What are your relations with the Government like?

TL: Relations with the Government are extremely good, we have been here a long time as I said, and we are very closely integrated with Brazil and clearly, as the biggest company in the private sector in Brazil, we have very good and very close relations with the Government” (Bates: 202005713) ³³33. Panorama interview in Brazil with Peter Taylor and Tom Long of Souza Cruz Industria. British American Tobacco. http://industrydocuments.library.ucsf.edu/tobacco/docs/jkjj0212 (accessed on 20/Jun/2015).
http://industrydocuments.library.ucsf.ed... .

Conclusions and recommendations

Considering the important historical relations between health and the market, Paulo Eduardo Elias emphasizes the growing contradictions in the face of current globalization, in which the medical-industrial complex stands out as one of the most active sectors in capitalism, pressuring the growth of health as a commodity and as a sector for realizing profit ³⁴34. Elias PE. Estado e saúde - os desafios do Brasil contemporâneo. São Paulo Perspect 2004; 18:41-6.. This clashes with public health’s objectives and creates serious consequences at a time when governments need to take measures whose interests are diametrically opposed to those of the market. This play of forces often ignores ordinary citizens when they should be defended and protected by public policies.

According to Gadelha ³⁵35. Gadelha CAG, Costa LS, Maldonato J. O complexo econômico-industrial da saúde. Rev Saúde Pública 2012; 46 Suppl 1:21-8., the same institutional policy environment includes a wide range of players with diverse and often conflicting perspectives, revealing the need for government to act as a mediator between health and market interests.

The analysis of the development and enforcement of health warnings in Brazil provides a critical view of the extent of interference by the tobacco industry in the enforcement of an important health measure adopted nearly 10 years after the WHO-FCTC and reveals the industry’s action as a lobby, to the point of modifying the evolution and establishment of such measures, clearly contrary to the industry’s vested interests. The Brazilian proposal in 1994 was pioneering, and the subsequent decade proved that it was not only legally and politically feasible, but highly effective for reducing tobacco consumption. If all these measures had actually been enforced, Brazil would have taken an even stronger world leadership role in tobacco control, and its position would probably have supported other countries in adopting such measures before they actually were by a large number of countries. Concern over a possible domino effect from regulatory measures in other countries is one of the main factors leading corporations to interfere, even joining forces at the level of their respective international headquarters when some country adopts such an innovative measure.

The period analyzed here was characterized by strong interference by the tobacco industry in the adoption of tobacco control measures in Brazil. The period from 1994 to 1995 provides a clear example for analysis of reactions by the tobacco industry, which shifted its position from vested interest group to strong lobby group.

The analysis of this process shows clearly that the tobacco industry interferes actively and that we should always remember that its interests are counter to those of public health, seeking to undermine efforts by governments and nongovernmental organizations, resisting and creating obstacles (as shown in this article) to important measures, and even reversing measures already taken by government. Defenders of tobacco control should step forward and fight the strategies and arguments used by industry if they wish to maximize the use of tobacco product packaging as a vehicle for awareness-raising on the dangers of smoking, rather than to increase consumption ³⁶36. Chapman S, Carter SM. "Avoid health warnings on all tobacco products for just as long as we can'': a history of Australian tobacco industry efforts to avoid, delay and dilute health warnings on cigarettes. Tob Control 2003; 12 Suppl 3:iii13-22..

The facts presented here can serve as lessons. The entire process could repeat itself at any moment, hindering the enforcement of any effective public health measure like health warnings that aims to decrease smoking initiation and promote cessation. Such measures are counter to the interests of the tobacco industry, which (despite claims to the contrary) is determined to pursue a marketing plan that targets young adults, allowing industry to recruit smokers 18 to 24 years of age while encouraging light, occasional, or novice smokers to smoke regularly ³⁷37. Ling PM, Glantz SA. Why and how the tobacco industry sells cigarettes to young adults: evidence from industry documents. Am J Public Health 2002; 92:908-16..

Although Brazil has made important strides in tobacco control, there are many obstacles, not least the strong opposition by the tobacco industry. Countries that plan to enforce strong regulations on tobacco products thus need to implement Article 5.3 of the WHO-FCTC, which deals with the states parties’ obligation to protect their public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry. The first underlying principle set out in the Article’s Guidelines makes clear how the tobacco industry should be viewed: there is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests. This principle is based on the affirmation that the tobacco industry produces and promotes a product that is scientifically proven to be addictive, to cause disease and death, and to give rise to a variety of social ills, including increased poverty. Both government and nongovernmental organizations that promote public health thus need to systematically monitor the industry’s activities and mainly denounce its interference. Public health can profit from the accumulated experience in studying interference by the tobacco industry to analyze strategies by the alcohol, processed food, and soft drink industries, with products that increase the risk of chronic non-communicable diseases.

Acknowledgments

The authors wish to acknowledge all the professionals that have contributed to tobacco control in Brazil, thereby reducing suffering and early death for many Brazilians. They also thank the Brazilian National Cancer Foundation, and especially Dr. Marcos Moraes, for the strategic vision in tobacco control, and the Brazilian National Cancer Institute for investing in its professional staff and promoting Brazil’s progress in this area. They further wish to express their solidarity with Brazilian smokers, who are victims of the tobacco industry and the clash between economic and health values.

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