Freedom is:
Freedom of expression is not an absolute right in any society.
It is conditional upon national legislation and international
human rights treaties. Freedom of expression must be interpreted
in the light of com-peting and co-existing human rights.
The freedoms outlined in the ICCPR are important. They apply to
human beings, not commercial organizations.
In the context of tobacco, commercial freedom is related (almost
exclusively) to the economic interests of the tobacco companies,
and supporting agencies or industry, including media, manufacturing,
and production. Commercial organizations do not have an international
right to freedom of expression under the ICCPR.
The rationale for limiting commercial freedom, by restricting
or prohibiting the advertising and promotion of tobacco products,
is clear and overwhelming:
Individuals have a right to be protected from known or unwarranted
promotions that will negatively impact their health.* [* Article
12 of the International Convention on Economic, Social and
Cultural Rights (ICESCR).]Governments
also have a responsibility to ensure the best possible health
outcomes both for individuals and communities. This requires that
all governments act co-operatively with health, consumer, civil
rights, and other organizations to reduce the effects of tobacco
on the health of people.
The freedom of the smoker to use tobacco is rarely the subject
of claim. Most smokers are rarely zealous to defend their right
to smoke publicly, in view of the wealth of scientific information
showing harm to others from environmental tobacco smoke. Claims
for "smokers' freedom" are those of the tobacco industry
advocating what they maintain are "smokers' rights".
Civil liberties organizations have generally recognized that an
individual's liberty should only be curtailed when it impinges
on the liberties of others, a liberty that is lost when a non-smoker
is exposed to any environmental tobacco smoke.
The legitimate smoker's interest is outlined by a former US
Federal Trade Commissioner:
"There's a recognizable smoker's freedom at stake
in this debate: a genuine, recognizable freedom: the freedom of
consenting, mature adults, spared the psychological manipulation
of...[advertising agencies] during adolescence, fully informed
by a free and responsive media, to chose to smoke in the privacy
of their homes. That's a freedom worthy of some respect. The rest
is grotesque propaganda." (1)
Conflicting interests
The four leading concerns in tobacco control policy are:
* The public interest in improving public health by reducing smoking;
* The interest of governments and authorities in reducing the
negative effects of tobacco products;
* The commercial interest of the tobacco industry, manufacture,
and trade; and
* The financial interests of the states and governments in taxes
on production, distribution, and consumption.
* A fifth interest, proposed by the industry, is the smokers'
desired benefit from freedom to smoke according to their wishes.
The legitimate question is: how should society balance these competing
interests? In reviewing the Finnish government's efforts to restrict
advertising, Häyry states:
"With regard to adult smokers...we contend that the infringements
of their individual liberty are too small to deserve serious justification
at all. Or, from another angle, perhaps the protection of the
young is a serious enough reason to override any inconvenience
caused by it to their parents and other adults. On the other hand,
as regards manufacturers and dealers, by distributing tobacco
products and information about them in a way that encourages smoking
among minors, they are inflicting harm on those of the young who
start or continue smoking because of their commercial efforts.
Harm to others is, in this case, ground for justifiable coercion".
(2)
It is, therefore, the valid prerogative of governments to restrict
opportunities for smoking, to ban promotion of tobacco in all
forms, and to ensure adequate regulation, including prohibition
of advertising.
Protecting the rights of children
Children are of particular importance. The 1959 United Nations
Declaration on the Rights of the Child and the 1989 Convention
on the Rights of the Child outline clear global concerns for
the health and well-being of children. They have the right to
grow up in an atmosphere which is most conducive to health. Governments
have a responsibility to implement such policy.
The Royal College of Physicians (RCP, UK) has helped define the
legal rights of the child. According to the RCP, these include
the right to:
* be free from the effects of tobacco when in their mother's womb;
* be brought up in a home that is smoke-free;
* expect that doctors, teachers and all those caring for them
will set a good example by not smoking;
* be taught about the impact of smoking on health and well-being;
* be taught how to recognize and resist pressures to smoke;
* not be sold cigarettes and other tobacco products;
* be helped to remain non-smokers by the high cost of cigarettes;
* be free from any form of tobacco advertising and promotion;
* live in a community where non-smoking is the normal way of life
for all age groups; and
expect that public policy will reflect these rights. (3)
Eliminating the bias and glamour of tobacco advertising can enhance
the ability of children and young people to make intelligent and
informed decisions.
"... a ban on advertising [is] an enhancement, not a diminution
of autonomy. By eliminating existing powerful and pervasive commercial
messages encouraging smoking, individuals will be able to make
choices about smoking based on more relev-ant and accurate information.
Our assumption is that this will lead to a deep and sustained
reduction in smoking over time, resulting in significant benefit
to health...". (4)
Freedom of information and misleading conduct
Tobacco companies are very selective in their use of information,
providing only that which will least restrict promotion and sale,
(e.g. an often quoted report is a tobacco-funded advertising study
by Boddewyn, without acknowledging its invalidities. (5)
An internal document providing information for the international
industry stated:
"Key lobbying actions need to be undertaken...[that] discredit
the often imported activists of the coalition-ideally through
third parties". (6)
Other secret documents of the tobacco companies recently revealed
a knowledge of the effects of their products 30 years in advance
of the medical and scientific community.
"...the documents show that B & W (Brown and Williamson)
and BAT (British American Tobacco) recognized more than 30 years
ago that nicotine is addictive and that tobacco smoke is «biologically
active» (i.e. carcinogenic)". (7)
A 1963 memo from B & W's then Vice President and General Counsel,
Addison Yeaman, states it bluntly:
"Moreover, nicotine is addictive. We are, then, in the
business of selling nicotine, an addictive drug effective in the
release of stress mechanisms". (8)
The tobacco industry has sought to silence many who have previously
worked for major international companies and who have questioned
the companies' action and public statements. Far from experiencing
freedom of speech, former employees have been pressured by industry
to suppress their evidence and views on the knowledge and behaviour
of their former employers.
Other instances of censorship by tobacco companies include pressures
on famous athletes to prevent them from promoting non-smoking
messages.
Commercial advertising and free speech
Tobacco and advertising industry statements:
"The industry will continue to lobby and fight against
advertising bans because commercial free speech is essential for
a market traditionally highly competitive."
"Advertising is an essential part of any real democracy
which is always based on freedom of choice. Democracy recognizes
and respects the ability of each individual person to assimilate
information and to make well-informed choices. Advertising is
also the voice of free enterprise. It is therefore anathema to
zealous regulators everywhere, and to all who believe that society
needs to be planned in a top-down way."
"...the action [Morling judgment on deceptive tobacco advertising]
demonstrated a clear threat to freedom of commercial expression...
The World Federation of Advertisers and the International Advertising
Association have resolved to promote and defend advertising and
commercial freedom of expression."
Freedom to advertise has been one of the issues most vigorously
defended by the tobacco industry. Newspaper, television and other
media advertising has focused on the importance of tobacco advertising
being inseparable from the principle of "free speech".
Opposition to a ban lies in the legality of the tobacco product.
Once governments start to control communication, the tobacco industry
claims, individuals are likely to lose personal and political
freedoms.
Support of this claim has sometimes arisen from fear of commercial
loss by the advertising and media industry. Experience from countries
where advertising has been banned has shown revenue loss to be
minimal. Some of the most democratic societies where freedoms
are prized, are those who now have the most stringent legislation
on tobacco advertising.
Governments have a responsibility to ensure the maintenance of
free speech for individuals, but are also obliged by national
and international law to regulate and ban the sale of hazardous
products. The marketing of goods has to be balanced in an increasingly
consumer conscious society with regulation to protect individuals
from the hazards of a free market.
The tobacco industry often seeks alliances with civil libertarians,
the media and advertising industry to argue that a tobacco advertising
ban would violate the constitutional right to free expression.
However, international law specifically includes public health
as a ground for limiting freedom of expression.
"Given what the cigarette industry does portray, what
it fails to say, and the vast public ignorance of the dangers
and addictive quality of smoking, particularly among young persons,
it is plain to us that this kind of advertising can be described
as deceptive and misleading". (9)
The tobacco industry has been found to be deceptive and misleading
in their advertising practices. (10) A ban on tobacco advertising
enhances the ability to make healthy decisions as individuals
and within populations.
The choices for governments
Governments have a responsibility to maintain the rights to clean air, free from environmental tobacco smoke, for all citizens.
Governments should tax cigarettes and tobacco products heavily
to minimize use and to provide dedicated funds for public health
initiatives. Politicians and political parties must resist
tobacco company pressures, especially the often duplicitous and
covert contributions that buy resistance to legislative change.
Legislation should be enacted which protects children from exposure to advertising.
Individuals should be free to smoke in private where it is consented by other adults while ensuring that there is no involuntary exposure of other individuals.
Acknowledgement
This fact sheet has been prepared for the UICC by Dr. Harley Stanton, Australia. The text has been reviewed by Dr. Eric LeGresley, Legal Counsel, Non-Smokers' Rights Association, Canada.
References
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Häyry, H., Häyry, M. , Karjalainen, S., "Paternalism and Finnish Anti-Smoking Policy", Soc Sci Med 1989; 28: 293-297.
Royal College of Physicians of London, "Children's Right to Freedom form Tobacco", A Charter.1994.
Gostin, L.O., Brandt, A.M., "Criteria for Evaluating a Ban on the Advertisement of Cigarettes: Balancing Public Health Benefits with Constitutional Burdens", JAMA, 1993; 269: 904-909.
Boddewyn , J. J., "Cigarette Advertising: Where should Articles on the Link Between Tobacco Advertising and Consumption be Published?", J of Advertising, 1993; 22: 105-109. Pollay, R. W., "Pertinent Reserach and Impertinent Opinions: Our Contributions to the Cigarette Advertising Policy Debate". J of Advertising 1993; 22: 110-117.
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Slade, J. Bero, L. A., Hanauer, P., Barnes, D. E., Glantz, S. A., "Nicotine and Addiction: The Brown and Williamson Documents". Idem: 228.
AmericanMedical Association House of Delegates Resolution 96, Interim Meeting: 3-6 December, 1989, Honolulu, HI. Blasi, V., Monaghan, H. P., "The First Amendment and cigarette advertising". JAMA. 1986; 256: 502-509. Dr. S. T. Han, World Health Organisation, Regional Director, Office of the Western Pacific Region, Action Plan on Tobacco or Health, 1995-1999, January 1995.
Everingham, R., Woodward, S., Tobacco Litigation. The Case
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