It is actually very hard to tell whether this Government’s actions are a result of a fundamentally libertarian ideology, or whether there is simply no ideology at all – they simply wish to allow their “corporate friends” to make lots of money (which as such is not an ideology). The screw-up over plain packaging in cigarettes can be interpreted at a number of different levels. One is how plausible transparency in the Government is: whilst the evidence concerning Lynton Crosby himself (and his company) is unconvincing, the lengths that international tobacco companies might go through in influencing public health policy are interesting. It could be argued that tobacco companies are simply not keen on regulation, but that does not stop Philip Morris initiating legal action at the drop of the hat. There are wider subtler inherent contraindications in the analysis of the power of the State and its rôle in public health too which will cause problems ultimately. A strong undercurrent has been the notion of “choice”, typified by Tim Kelsey’s approach to the use of data in decision-making of patients, or “customers of the NHS” as called by some. The idea that “regulation is bad” is of course fully consistent with a political philosophy from the Conservative Party, and while the Labour Party could rightly be accused of a somewhat authoritarian, “nanny state” tinge to its last attempt at office and power, the idea of the “public good” continues to gather much support in many jurisdictions.

The government has actually now mutualised its “Nudge” unit, but “Nudge” was the future once. The centrality of using behavioural insights to the Coalition government is such that it entered formal written agreement between the Conservative and Liberal parties, in the foreword by the two party leaders and their juniors:

“There has been the assumption that central government can only change people’s behaviour through rules and regulations. Our government will be a much smarter one, shunning the bureaucratic levers of the past and finding intelligent ways to encourage support and enable people to make better choices for themselves”.

Nudge is an interesting foray into consumer behaviour, and part of the problem in this is that human beings are often irrational (and certainly will make suboptimal decisions on the basis of dodgy data.) Consumer behaviour is ultimately determined by cognitive processes, such as perception, selective attention, and memory, which is why the approach to “big data” fails inherently to capture individual differences. This is a problem in planning public policy, but why should the field of marketing and economics be so interested in packaging if it does not matter? The actual evidence provides that product packaging is an important tool for suppliers to communicate with consumers.1 Tobacco manufacturers have effectively used cigarette pack design, colours, and descriptive terms to communicate the impression of lower tar or milder smoke while preserving taste “satisfaction”. Smokers’ beliefs about a given product are likely to be shaped in part by the descriptors, colours, and images portrayed on the pack and in related marketing materials.

In the US jurisdiction, “The Framework Convention on Tobacco Control” (Article 11) calls for a ban on misleading descriptors in an effort to address consumer misperceptions about tobacco products. New regulations contained in the Family Smoking Prevention and Tobacco Control Act of 2009 (FSPTCA) prohibit tobacco companies from labelling cigarette packs with terms such as light, mild, or low after June 2010. However, experience from countries that have removed these descriptors suggests that cigarette marketers manage to circumvent the intended goal of the regulation by using different terms, colours, or numbers to communicate the same messages. Specifically, recent research has shown that consumers in the United Kingdom and Canada, which have removed “light” and “mild” descriptors, perceive cigarettes in packs with lighter colours as less harmful and easier to quit compared to cigarettes in packs with darker colours. Colour is a good example of non-verbal marketing signal, which has an important influence on our daily lives. The underlying emotions that colours evoke have been cultivated since birth and vary depending on age, geographic location, and gender (e.g. blue for boys, pink for girls). Colour, it affects, affects our moods and feelings, and research suggests that it has a physical effect as well, influencing the hormones that control our emotions.

Studies have shown that color:

• Increases brand recognition by up to 80%
• Improves readership as much as 40%
• Increases comprehension by 73%
• Can be up to 85% of the reason people decide to buy

Bansal-Travers, O’Connor, Fix,and Cummings (Am J Prev Med 2011;40(6):683–689) showed 193 participants array of six cigarette packages (altered to remove all descriptive terms) and asked to link package images with their corresponding descriptive terms. Participants were then asked to identify which pack in the array they would choose if they were concerned with health, tar, nicotine, image, and taste. Participants were more accurate in matching descriptors to pack images for Marlboro brand cigarettes than for unfamiliar Peter Jackson brand (sold in Australia). Smokers overwhelmingly chose the “whitest” pack if they were concerned about health, tar, and nicotine. Smokers in the U.S. associate brand descriptors with colours. Further, white packaging appeared to most influence perceptions of safety.

Tobacco studies indicate that health-related information in cigarette advertising leads consumers to underestimate the detrimental health effects of smoking and contributes to their smoking-related perceptions, beliefs, and attitudes. Paek and colleagues (Paek et al., 2010) examined the frequencies and kinds of implicit health information in cigarette advertising across five distinct smoking eras covering the years 1954-2003. Most notably, a majority of the cigarette ads portrayed models smoking, lighting, or offering a cigarette to others. Rooke and colleagues (Rooke et al., 2010) investigated how tobacco displays are used at the point of sale (PoS) as an important means for the tobacco industry to communicate with consumers. With regulations prohibiting PoS displays recently having come into force in Ireland, this is an increasingly important issue. Over 100 retailers were visited, with interviews taking place on site. Information was gathered on the type and size of tobacco display, who was paying for the display, requirements and incentives, and visits by industry representatives. The majority of retailers had gantries provided by tobacco companies. A minority of these were fitted with automated dispensers called retail vending machines. Attractive lighting and colour were often used to highlight particular products.  Wakefield and colleagues (Wakefield et al., 2002) investigated the role of pack design in tobacco marketing. A search of tobacco company document sites using a list of specified search terms was undertaken during November 2000 to July 2001. Many smokers are misled by pack design into thinking that cigarettes may be “safer”. There is a need to consider regulation of cigarette packaging.

The World Health Organization applauded Australia’s law on plain packaging noting that “the legislation sets a new global standard for the control of a product that accounts for nearly 6 million deaths each year” The Cancer Council of Australia hailed the passing of the legislation, stating, “Documents obtained from the tobacco industry show how much the tobacco companies rely on pack design to attract new smokers….You only have to look at how desperate the tobacco companies are to stop plain packaging, for confirmation that pack design is seen as critical to sales.” Don Rothwell, professor of international law at the Australian National University, noted that Philip Morris was pursuing multiple legal avenues. The Notice of Arbitration under the bilateral investment treaty between Hong Kong and Australia has a 90-day cooling off period after which the case would most likely be sent to the International Centre for Settlement of Investment Disputes in Washington. He stated that Philip Morris was most likely aiming for the Australian Government to back down, or failing that, to sue for compensation. He said the questions to decide are whether the legislation means that Australia would acquire property by the imposition of these rules and if this legislation is a legitimate public-health measure. Gavin Allen of the Daily Mail newspaper reported that the Philip Morris lawsuit could cost the Australian government “billions”. He also noted that the Australian law is being closely watched by other governments in Europe, Canada and New Zealand. In 2005, the World Health Organization urged countries to consider plain packaging, and noted that Bhutan had banned the sale of tobacco earlier in 2011.

As the latest row over the role of big money in politics hit Downing Street, Paul Burstow, who was a health minister until September last year, said Crosby should either quit or be sacked by Cameron after it emerged that his lobbying firm works for global tobacco giant Philip Morris. Other Liberal Democrats also made clear they were furious and would fight to ensure Crosby was removed from any role in which he could influence health or any other coalition policy. Amid the growing furore, the Tory chairman of the all-party select committee on health, former health secretary Stephen Dorrell, announced that his committee would look into why the government had changed its mind on the question of cigarette packaging.

This is a very serious issue.  The Observer editorial was devoted to it this morning.

As the Smokefree Action Coalition points out, cigarettes are the only legal product sold in the UK that kill their consumers when used exactly as the manufacturer intends. Even if the government remains unconvinced of the wisdom of plain packaging, an alliance of MPs, charities and health experts and the Faculty of Public Health disagree, as does the public. A YouGov poll in February found that 64% of the public is also in favour. So why the sudden U-turn?

The tobacco giants are spending £2m in a campaign against standardised packaging. Critics also point out that the industry has its very own Trojan horse inside Number 10, in the shape of Australian Lynton Crosby, the Conservatives’ general election co-ordinator. Hours after the decision to postpone plain packaging, it emerged that Crosby’s company, CTF, has been advising Philip Morris Ltd in Britain since November. Now there are calls for an inquiry. As the lacklustre bill on lobbying moves through parliament, Deborah Arnott, chief executive of the health charity Action on Smoking and Health, rightly says: “David Cameron has called political lobbying the ‘next big scandal waiting to happen’. Happen it has, right in 10 Downing Street.” Tory MP and GP Dr Sarah Wollaston, who also campaigns for price controls on alcohol, aptly tweeted: “RIP public health. A day of shame for this government; the only winners big tobacco, big alcohol and big undertakers.”

In Adam Burgess, “‘Nudging’ Healthy Lifestyles: The UK Experiments with the Behavioural Alternative to Regulation and the Market”, it is argued that “Nudge” is actually leading us away from taking us away from personal responsibility:

“There is another fundamental contradiction in nudging, particularly in the context of the declared intent to increase a sense of individual responsibility outlined by the Prime Minister. Whilst there may be an attempt to provide at least token interference transparency to preserve the possibility of exposing a ‘nudge too far’, this also underlines how far this process is from one that encourages greater learning about problems and how the individual might take on some responsibility for their management. Behaviouralism directs us away from building the renewed sense of personal and social responsibility the Coalition government has set out as fundamental to its mission.”

Therein lies the rub perhaps. While promoting “individual choice” through nudges, the policy has inadvertently discouraged personal responsibility, and especially responsibility for other members of the community. The critical problem is that the whole is not the sum of its constituent parts, and while FA Hayek’s “The Road to Serfdom” was hailed by Margaret Thatcher (whose remark was passionately argued by the Bishop of London at her funeral to have been misquoted), cognitive neuroscience acknowledges that individuals often make the “wrong” choices – wrong for them individually, and also wrong for society. Many decisions are unconscious, and indeed that is what the whole of the profit-generating marketing industry is devoted to manipulating. But the fact that these decisions are unconscious tells you exactly what is fundamentally incorrect about the libertarian analysis. People don’t know why they’re making certain decisions: they are not in control at all. The advertisers are. And more importantly, they cannot learn from their decision-making process. Public health, for all its possible faults, is firmly against this philosophy.

References

Paek HJ, Reid LN, Choi H, Jeong HJ. (2010) Promoting health (implicitly)? A longitudinal content analysis of implicit health information in cigarette advertising, 1954-2003. J Health Commun. 2010 Oct;15(7):769-87. doi: 10.1080/10810730.2010.514033.

Rooke C, Cheeseman H, Dockrell M, Millward D, Sandford A. Tobacco point-of-sale displays in England: a snapshot survey of current practices. Tob Control. 2010 Aug;19(4):279-84. doi: 10.1136/tc.2009.034447. Epub 2010 May 14.

Wakefield M, Morley C, Horan JK, Cummings KM. (2002) The cigarette pack as image: new evidence from tobacco industry documents. Tob Control. Mar;11 Suppl 1:I73-80.

Bansal-Travers, M, O’Connor, R, Fix, BV, Cummings, KM (2011) What Do Cigarette Pack Colors Communicate to Smokers in the U.S.? Am J Prev Med 2011;40(6):683– 689