Historical Link to the Tobacco Industry

Schippers’ professional network provides an early link with the tobacco industry. She worked for the Dutch employers organisation VNO/NCW on health and social issues between 1997-2001, and on environmental planning until 2003. During the same period (1999-2005), Jacques Schraven was the director of this organisation. In the mid 1990s Schraven was involved in the British American Tobacco inspired “EU Better Regulation” coalition. As the head of the Legal Division of Shell International, he was one of the influential people to join the Forum for EU/US Legal-Economic Affairs.⁴

References

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Lobbying on the Tobacco Products Directive

VNO-NCW has played a key role in mobilising support from other industry sectors to help the tobacco industry dilute the revision of the 2001 Tobacco Products Directive (TPD). Recently disclosed meeting notes⁶⁷ show that VNO organised two meetings in 2011 and 2012 that brought together European Industry Confederations and the tobacco industry to discuss the impact of the TPD. The first meeting took place on 14 December 2011 at the Brussels offices of VNO NCW, and was attended by German BDI, Luxembourg Fedil, Italian Confindustria, Greek SEV, Lithuanian LPK and Irish IBEC, plus British American Tobacco (BAT), Philip Morris (PMI), and the European Smoking Tobacco Association (ESTA). Minutes of the meeting⁸

1. Plain packaging;

2. Regulating ingredients (especially the “overly broad” WHO definition of “attractiveness” was challenged);

3. Access in the retail sector, including Point Of Sale displays and internet sales.

Illicit trade was also raised as a concern, with PMI making reference to the KMPG ‘Project Star’ report on illicit trade (which was commissioned by PMI and has since been criticised for exaggerating illicit trade figures).
On 10 January 2012, the group met a second time and this time also included BusinessEurope, CECCM, Spanish CEOE, Czech CEBRE, Swedish Svenkst, Belgian FEB-VBO, Danish DI, and Austrian IV.The group agreed to a “horizontal approach” to lobby at national and EU level, agreeing to raise the issues as whole-of-industry matters so they would not be associated with the tobacco industry.

“We are one of the few tobacco industry friends”

On 24 July 2013, Vrij Nederland (a Dutch magazine) published an article⁹ which, apart from detailing the EU meetings mentioned above, also included a phone interview with Niek Jan van Kesteren, Director General of VNO-NCW. In this interview, van Kesteren was quoted as saying that “We VNO NCW are one of the few friends of the tobacco industry” (translated from Dutch) and argued that the tobacco industry is an important part of the economy as it delivers government tax revenue and creates employment.
On 9 June 2015, van Kesteren became a member of the Dutch senate.¹⁰¹¹

Revolving door: former VNO employee and now Dutch “Minister of Tobacco”

Working for VNO-NCW between 1997 and 2003 was current Dutch Health Minister Edith Schippers, (dubbed in the Dutch media as “Minister of Tobacco” following a television documentary¹² exposing intensive contact between her and the tobacco lobby).¹³

TobaccoTactics Resources

• EU Tobacco Products Directive Revision
• Third Party Techniques
• Revolving Door

References

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• To read more about the 2014 TPD and the industry’s intensive lobbying campaign to undermine it, see EU Tobacco Products Directive.

Background

The original TPD was proposed by the European Commission in November 1999 and aimed to strengthen European legislation on cigarette yields (Article 3 and 4) as well as tobacco product labelling (Article 5). It also introduced mandatory ingredients disclosure (Article 6), banned misleading descriptors such as “mild” and “light” that suggest less harmfulness of a product (Article 7), and maintained the 1992 ban on sales of smokeless tobacco snus (Article 8) .

• The full text of the 2001 TPD can be found here.

The TPD and Tobacco Industry Interference

The tobacco industry was seriously alarmed when discussions began in Brussels in 1996 regarding the need for further tobacco regulations. Despite strong tobacco industry lobbying in the following years and several legal challenges, the TPD was successfully enacted in 2001. Strong leadership from David Byrne, the then EU Health Commissioner, the political commitment across Member States and the skillful management of the TPD proposal through the parliamentary process by Parliamentary rapporteur Jules Maaten thwarted concerted tobacco industry efforts to derail the Directive.
Below is a summary of the key findings of a report ¹⁴ written by researchers at the University of Bath, University of Edinburgh, and the London School of Hygiene and Tropical Medicine which examines the tobacco industry’s campaign to subvert the 2001 TPD.

Divisions between the transnational tobacco companies’ positions

Initially, the tobacco industry responded to the threat of further regulation in a cohesive manner. They adopted a relatively unified stance on the Commission’s 1998 consultation that preceded the formal TPD proposal in 1999. They established pan-European working groups to develop key arguments(see section below), and collectively lobbied against the proposed measures.
However, tensions between the companies soon started to emerge, notably between Philip Morris (PM) and European-based transnational tobacco companies (TTCs). This split appears to have been a product of differences in individual company positions and the resulting risks posed by legislation. PM was the leader of the European tobacco market and therefore seems to have been less threatened by the proposed measures, favouring ‘constructive engagement’ with policy makers. In contrast, British American Tobacco (BAT) and other companies were more exposed to the Directive’s impact due to their substantial EU manufacturing base, thus favoured a more aggressive approach. By September 2000, Japan Tobacco International (JTI) recognised that, although consensus was ideal, it had been difficult to achieve and the industry was left without a strong, united position.

Industry Arguments Against the 2001 TPD: Legal, Trade, Economic , and Scientific

To shape debates around the TPD and influence public opinion, the tobacco industry developed four key arguments to create doubt about the legitimacy of the proposed legislation:

• The Directive has an invalid legal basis (i.e. was “ultra vires”).

Despite receiving legal opinion confirming the TPD’s legality, the tobacco industry publicly argued that the TPD was invalid, claiming that the TPD’s main legal basis (Article 95) and a later additional basis (Article 133) were inapplicable. This tactic of challenging the legal basis of tobacco control legislation has been central to all the tobacco industry’s efforts to undermine key tobacco control efforts in Europe.¹⁵

• The Directive is in breach of existing trade agreements and Intellectual Property (IP) rights.

The tobacco industry alleged that the TPD was incompatible with obligations under the World Trade Organization (WTO) agreements on technical barriers to trade (TBT) and IP rights, threatening trade challenges despite the clearly weak nature of such claimed conflicts. Given the complex and often misunderstood relationship between trade and health, it is unsurprising that the tobacco industry continues to misuse such arguments, notably in the plain packaging debate.

• The Directive will have adverse economic impacts, in particular significant job losses.

Alleged economic consequences, particularly a threat to jobs, were highlighted in BAT’s own impact assessment study which focused on the negative economic impacts only, exaggerating job losses, and overlooking potential health benefits. This report, co-written with trade unions, was widely used to lobby Members of European Parliament (MEPs) and secure press coverage.

• The Directive ‘s scientific and technical elements have significant limitations.

This argument sought to exploit the limited technical capacity in the Commission and ongoing public health debates around product regulation (e.g. debates around the effectiveness of reduced yields based on discredited ISO methods). PM and JTI were particularly vocal on tar and carbon monoxide ratios, whereas BAT developed several arguments against toxicological testing and regulation of additives. PM in particular used this type of argument to gain access to Commission staff.

Direct and Indirect Lobbying Tactics

The tobacco industry’s success depended on an effective lobbying apparatus that was able to transfer and feed the pro-tobacco arguments into messages aimed at people and organisations with influence. TTCs had long scrutinised the EU legislative process and were well-informed about the EU’s policy cycle and EU institutions. This enabled the tobacco industry to carefully target their arguments to appropriate audiences according to the legislative stage the Directive was in. The EU’s institutional pluralism, providing many targets for lobbying (e.g. Commission, Parliament and Member States), worked to the advantage of the well-resourced TTCs, in contrast to public health advocates who were poorly resourced and had to prioritise their lobbying efforts.
TTCs lobbied directly and indirectly and had many lobbying targets (see Image 1). ¹⁴

Targets of their direct lobbying efforts included those that were able to directly influence the Directive, such as Commissioners, Commission staff, MEPs, the European Economic and Social Committee (EESC) and the Committee of the Regions (CoR). Contacts were made with not just DG SANCO, the Commission’s department responsible for tobacco control, but also the departments of Internal Market and Industrial Affairs, Taxation, and Agriculture. Relationships with MEPs were built by writing letters and inviting them to social events that coincided with key committee meetings.
Attempts to table pro-tobacco amendments and building a blocking minority were made through the Council and MEPs on influential committees. The findings show that the German government and MEPs lent a sympathetic ear to the industry, which is consistent with its previous roles in opposing EU tobacco control measures.
TTCs also lobbied indirectly by collaborating with third parties who acted on its behalf. Targets included tobacco farmers, suppliers, distributors, employees, trade unions and the media, with plans made to enlist their support in key countries using carefully targeted messages. For example, trade unions were told that tobacco manufacturers were being “forced” to consider relocating. Supported by tobacco industry briefings, trade unions and other third parties were then mobilised to claim exaggerated impacts on employment, generating press coverage and political support.

Legal challenges

The tobacco industry is well-versed in using litigation to either stop or delay EU tobacco control legislation, and the 2001 TPD was no exception. Before the Directive had passed into EU law, British American Tobacco (BAT) filed an access case with the European Court of First Instance, requesting access to the scientific research the Commission had considered and had based the TPD proposal on. This case was dismissed. ¹⁶
Within months of the Directive passing into EU law, tobacco companies filed legal challenges in national courts and the European Court of Justice.
BAT, Imperial Tobacco and JTI filed legal proceedings in the British Courts which were referred to the European Court for Justice (ECJ). Their argument was that Article 95 was an inadequate legal basis, claiming that the Directive was a public health measure being introduced as an internal market measure, and that the supplementary legal basis of Article 133 invalidated the Directive as they followed incompatible legislative processed. They also argued that the principles of proportionality and subsidiarity had been violated and that Article 5 (yields) and Article 7 (misleading descriptors) breached trademarks and intellectual property rights. In 2002 the ECJ ruled that the Directive was valid, although it did rule that misleading descriptors could be permitted on cigarettes manufactured for export.
Swedish Match, along with a German wholesaler, also brought a legal challenge against the UK and German governments in relation to the ban on snus sales, which was referred to the ECJ. They challenged the legal basis of the Directive but also claimed an infringement on prohibiting quantitative restrictions in trade between Member States. Again these complaints were rejected in 2004 by the ECJ.
Tobacco companies also filed cases in national courts. For example, PMI launched a court case in Sweden where it unsuccessfully challenged the Swedish interpretation of the Directive that the black border should be additional to the health warning. Seven tobacco companies, including BAT, PMI, JTI and Imperial Tobacco, filed separate court cases against the Dutch government’s ingredients disclosure regulation. The companies argued that this was tantamount to trade secrets and competitors would profit from them. The District Court of The Hague’s ruling in 2005 rejected these claims and ruled that trade secrets did not themselves enjoy absolute protection.

TobaccoTactics Resources

• EU Tobacco Products Directive Revision
• Pictorial Warnings and Standardised, Plain Packaging
• Delaying the Process of Consultation
• Dalligate
• Burglaries
• Campaigning Websites
• PMI’s Lobbying Campaign to Undermine the TPD
• Forest
• No Thank EU
• Third Party Techniques
• Front Groups
• BAT Funded Lobbying Against Plain Packaging
• Tobacco Workers’ Alliance
• A list of all pages in the category Tobacco Products Directive.

References

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ECMA has been an active interest group in many tobacco-specific policy debates, arguing that a ‘one size fits all’ approach to tobacco regulation is inappropriate, and that cigars should be exempt from many tobacco regulations due to the small size of the cigar market.

Note: The European Cigar Manufacturers Association should not be confused with the European Carton Makers Association, which goes by the same acronym.

Board Members and Staff

In April 2021, the ECMA board members consisted of:¹⁷

• Beat Burger (Burger Söhne and Dannemann)- President
• Fernando Dominguez (Tabacalera S.L.U, previously Imperial Tobacco)- Board member
• Beat Hauenstein (Oettinger Davidoff AG)- Board member
• Niels Frederiksen (Scandinavian Tobacco Group)- Board member
• Stefano Mariotti (Manifatture Sigaro Toscano, previously British American Tobacco)- Board member
• Frederick Vandermarliere (J. Cortès Cigars)- Treasurer
• Paul Varakas (Vice President of the Society of European Affairs Professionals)- Director General

Previous board members include: Ad Wintermans (Royal Agio Cigars), Roland Wuttke (Japan Tobacco International), Marcel Crijnen (Dutch Cigar Manufacturers Association) and Maria Angeles Martinez-Pastor.

Lobbying on the Framework Convention on Tobacco Control

Protocol on Illicit Trade in Tobacco Products Not Needed for Cigars

In 2009, ECMA responded to the negotiations on the Protocol on Illicit Trade in Tobacco Products, arguing that there is “no illicit trade in cigars….both at the level of the European Union as well as at international level” and therefore no need for the Protocol to encompass cigars.¹⁹ ECMA furthermore claimed that the proposed ‘track and trace’ provisions were inappropriate for cigars due to the cigar’s fragmented production process.

Concept of ‘Attractiveness’ in Articles 9 & 10 in Conflict with Better Regulation Principles

In June 2010, ECMA circulated a position statement in response to the development of partial guidelines for implementation of Articles 9 and 10 (Regulation of the contents of tobacco products and Regulation of tobacco product disclosures) of the WHO Framework Convention on Tobacco Control (FCTC).²⁰ In addition to calling for an exemption for the cigar industry, ECMA challenged the concept of ingredient ‘attractiveness’ citing EU Better Regulation principles. ECMA argued that “appropriate ingredients regulation should be based on sound science and meet internationally accepted principles of “Better Regulation”, claiming that the concept of attractiveness “is lacking in any evidential foundation and is inherently uncertain and arbitrary”.

• To view ECMA’s position statement on FCTC Articles 9 & 10, click here.  

ECMA’s use of Better Regulation to challenge public health measures is in line with evidence that British American Tobacco (BAT), and other corporations that manufacture products harmful to health, were instrumental in promoting Better Regulation in the EU, anticipating that it would favour corporate interests and could be used to weaken tobacco control efforts.²¹

• To read more about how the tobacco industry has used Better Regulation against tobacco control, see EU Better Regulation.

Attempting to Water Down Provisions in the Tobacco Products Directive

From 2009 to 2014 the EU revised the Tobacco Products Directive (TPD), a piece of legislation that regulates the manufacture, sale, presentation of tobacco products in Europe. A 2015 study, led by the University of Bath, examined tobacco industry efforts to influence the TPD revision and identified 137 third party associations that actively opposed the TPD, including ECMA.²²

ECMA has been registered on the EU lobbying register since 9 February 2009. In 2014 it declared that it had spent between €100,000 and €199,999 on EU lobbying activities that year.²³

Its lobbying efforts have focused on trying to block an increase in the size of health warnings, undermining the validity of the concept of ‘attractiveness’ in ingredients regulation, and refuting the legal basis for a point of sales display ban.²⁴. ECMA’s position statement on the TPD can be viewed here.

Being Actively Involved in Formal Stakeholder Consultation Processes

To try and influence the TPD, ECMA used the formal stakeholder processes which started in autumn 2009 and were led by the European Commission’s DG SANCO, the department responsible for tobacco control, and by ENVI, the European Parliament’s Committee of the Environment, Public Health and Food Safety.

ECMA was a participant in at least 4 formal, and minuted, stakeholder meetings:

• 20 October 2010 – DG SANCO meeting with tobacco industry stakeholders to discuss the RAND interim report.²⁵
• 19 December 2011 – Meeting between DG SANCO and ESTOC, ESTA, Swedish Match and ECMA.²⁶
• 7 March 2012- Meeting between Health Commissioner John Dalli, DG SANCO and the tobacco industry.²⁷
• 19 March 2013 – ENVI meeting with the tobacco products supply chain.²⁸ ECMA was also a stakeholder in discussions about the RAND Impact Assessment study, commissioned by the European Commission in 2009 to examine the impact of revising the TPD. In a letter to DG SANCO dated 18 January 2010, ECMA criticised RAND’s interim report for not complying with the Commission’s impact assessment guidelines” and not considering the specific structure of the cigar industry.²⁹

To view ECMA’s position statement on the RAND interim report, click here.

ECMA also submitted a response to DG SANCO’s public consultation on the TPD revision, which ran from September to December 2010.³⁰ ECMA’s submission challenged the proposed policy options of enlarged health warnings, an ingredients ban, and a Point of Sale Display Ban. In addition, the submission also rejected the option of plain packaging, which it claimed was “a disproportionate measure, claiming it would 1) facilitate the trade in counterfeit and contraband tobacco products, 2) result in consumer confusion and 3) negatively impact on the competitive operation of the market for tobacco products”. No evidence was provided to support these claims.

Non-health lobbying targets: Secretariat General, DG ENTR, DG AGRI, DG EMPL

ECMA also lobbied non-health elements in the Commission. On several occasions in 2011, ECMA contacted DG ENTR, the department responsible for Enterprise and Industry, warning that the proposed measures in the TPD would lead to a “disproportionate burden for the (mainly small to medium sized) cigar sector”.^31323334 No evidence was provided to support this claim.

• To view the strongly redacted correspondence between DG ENTR and ECMA, released by the European Commission under freedom of information legislation, click  here and here.

Freedom of information documents also reveal that DG ENTR met ECMA twice, in September 2011 and in May 2012 (which also included CECCM (now Tobacco Europe) and Imperial Tobacco).³⁵ Although notes were taken during the meetings, they were not made publicly available, in contravention of FCTC Article 5.3.

DG AGRI, the department responsible for Agriculture and Rural Development, was another lobby target. In May 2011, ECMA wrote a letter to DG AGRI introducing ECMA’s new President and requesting a meeting to discuss how the TPD would “disproportionately disadvantage the –mainly small to medium sizes- manufacturers of cigars”. An almost identical email was sent to the Director-General of DG EMPL, the department responsible for Employment, Social Affairs & Inclusion. ³⁶

• To view the email correspondence between ECMA and DG EMPL, click here.

In addition to these non-health portfolios, ECMA lobbied the highest echelons of the Commission, the Secretariat-General (responsible for Better Regulation) and the Cabinet of the Commission’s President, José Manuel Barroso. In November 2011, the German Cigar Association (BdZ) sent an email to Henning Klaus, the member of the Barroso Cabinet responsible for Better Regulation, trying to arrange a meeting between BdZ, ECMA, and Klaus.³⁷ It is unclear if a meeting took place, but on 20 December 2011, on the request of Barroso’s Cabinet, ECMA met with a member of staff from the Secretariat-General, the department responsible for Better Regulation.³⁸ None of these meetings were minuted and published.

On Friendly Terms with the Dutch Department of Health

Internal tobacco industry documents reveal that ECMA, through its Secretary General Marcel Crijnen, maintained regular contact in 2009 and 2010 with senior staff of the Dutch Department of Health, including the then Director-General for Public Health, Paul Huijts.^39404142 The documents show that ECMA regularly shared its views on tobacco control policy issues with the department, although it is unknown if this helped shaped the Dutch government’s position on these issues.

In 2011, ECMA became concerned about the transition period needed to switch to new text health warnings on tobacco products, including cigars.⁴³ The European Commission had set the transition period to four years, giving Member States the option to shorten this period. In correspondence with the Dutch Department for Health, ECMA was quickly reassured by the Dutch Department for Health that the Dutch Government would most definitely apply the full four years implementations period, so not to cause the tobacco industry any issues.⁴⁴

TobaccoTactics Resources

• Framework Convention on Tobacco Control
• EU Tobacco Products Directive Revision
• EU Better Regulation

References

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