Read into Hansard on Tuesday 24th March 2015
PUBLIC HEALTH AMENDMENT (TOBACCO-FREE GENERATION) BILL 2014 (No. 40)
Mr VALENTINE (Hobart) – Madam Acting President, I, too, acknowledge the efforts of the honourable member for Windermere. It obviously has taken a lot of effort, time and determination to get this bill as far as it has managed to get, that is to the Floor of the Chamber. Congratulations for that and having the determination to see it through, not only to the member for Windermere but also those others that he acknowledged. There are many people out there who care for our community and are very concerned to see that effective steps are taken to improve the health of our community over time, and that must be acknowledged. That is not to say it is an easy task to see that improvement because with every action there is an equal and opposite reaction, as we all know. I guess it is making sure that whatever steps are taken are not, in the end, negative steps and backward steps.
There is something in me that is really averse to prohibition and I believe many people have felt this as they have been doing their homework on this bill. We have all heard the stories of alcohol prohibition in the US and how it did not work and just exacerbated everything. I guess the question here is: is this prohibition as such, as far as the individual is concerned, or simply progressively lifting the age at which people can legally obtain a product such as tobacco? Currently it is 18. In 50 years’ time it will be 68.
We have to think past just the young people in this. This is a whole‑of‑generation issue. It is important that we understand what this bill will do when it is actually put into play in 50 years’ time, if it gets that far, after the reviews and the like. It will probably be a 68-year-old rocking up to get cigarettes and will not be able to buy them.
I turn to what the Government is currently doing, and I will probably save the honourable Leader a bit of time. That is the Tasmanian Tobacco Action Plan 2011-2015, which I had some work done on. That plan outlines Tasmania’s goal to improve the health of Tasmanians by reducing the impact of tobacco, specifically to reduce smoking rates by 10 per cent by the year 2020. The Tasmanian Population Health Survey 2013 showed a decline in smoking rates by Tasmanian adults from 19.8 per cent in 2009 to 15 per cent in 2013. That is a significant reduction.
The Australian Health Survey indicated that 21.7 per cent of Tasmanian adults are smokers. These statistics are indicative that current strategies focusing on education, control and regulation are working to achieve the 10 per cent reduction by 2020 that is the target of the plan, and of successive governments, as they have not changed it at this point. One might question whether this is enough, whether that fall in the use of the product is fast enough.
There are five priority areas that are being targeted for the future. First, targeting vulnerable groups: there is an increased focus on reducing smoking in young people, in people of low socioeconomic status, in people with mental illness, Aboriginal people and pregnant women.
Second, there is a focus on electronic cigarettes in line with the July 2014 report by the World Health Organization that there needs to be more effort invested into the impact of electronic cigarettes. I will come back to that a bit later.
Third, there is a focus on smoke-free areas: to support the Tasmania Prison Service to implement smoke-free prisons by 1 February 2015 and further increase smoke-free public events. In regard to the prison, that indeed has been achieved, or at least it is certainly on the way.
Tobacco supply – they are to investigate strategies to further regulate how tobacco is sold, such as by location and year of birth. Here we have it, it is with us now. This bill, in that sense, is in line with the focus of that particular action plan.
Media campaigns – ensure continued implementation of the Quit social marketing program at its current level in line with the evidence that says this is the level that is effective. I noted at lunchtime, when we were all going down to be with Richard Flanagan, that the people in the Long Room were celebrating something to do with the Quit program. That was interesting – the longevity of it. The Cancer Council was involved.
The key action areas – there is quite a list of them and I will not go through every one, but there is an emphasis on tackling social determinants; creating the Targeting Tobacco Program to promote quit smoking messages within the social and community services sector; developing the Smoke Free Young People Strategy – 2013-17 – which is a plan to address intervention and cessation in youth; decreasing the number of licensed tobacco retailers, and that is currently sitting, as noted by the Leader in response to my question, at 822, down from 859 last year. In 2009 that number was 1 190, so it is reducing.
Mr Dean – It is 890-something now.
Mr VALENTINE – Is it? Okay.
That Population Health services and local councils continue to work together to implement smoke-free public events, with close to 75 either fully smoke-free or with designated smoking areas. This number will only increase with changes in the law to allow councils to determine which areas and events are smoke-free. We passed those last week, if I am not mistaken.
The results of the Tasmanian Population Health survey for 2013 are interesting. There is a decrease in current smokers – 19.8 per cent down to 15 per cent, which is around 60 000 people. Daily smokers reduced from 16.1 per cent to 11.9 per cent. Never smoked increased from 52.2 per cent to 56.9 per cent. Fairly significant reductions occurred for every age group: 18-24 there was a reduction from 23 per cent down to 19.7 per cent; the 25-34 age group, from 27.1 per cent to 22.5 per cent; the 35-44 age bracket, 25.7 per cent to 16.9 per cent, and the 45-54 bracket, 22.9 per cent to 16.2 per cent. The other two brackets – 55-64 went from 13.6 per cent to 12.2 per cent and the 65 and older group went from 8.8 per cent to 7 per cent.
It is interesting – the effect that is already being achieved without this bill. But where to next?
I went through all the emails I received, and listened to all the briefings, which no doubt all of us did, and there were lots of pros and cons. Some of the pros – it lessens the availability of a product – nicotine – that is more addictive than marijuana.
Imperial Tobacco asserted that it would support sensible, rational and practical regulation. From the perspective of some, this is ‘sensible’, because ‘we gradually remove the main drivers for the uptake of smoking, peer pressure and the desire to appear adult’. Once they start, however, they can find themselves addicted and not able to quit. It is ‘rational’ – it does not further criminalise smoking by any young person or parent or family member. As smoking rates in young people fall, babies and young children are protected, one would expect. I have a concern, however, with the charging of young people for invalid ID, and I would like to have that addressed during the Committee stage, if it gets there.
The last is ‘practical’. It is stated by some that retailers demonstrate good compliance with laws preventing supply and sales to young people under 18. This particular proposal by the member for Windermere is the same, but it is easier. They only have to recognise any ID with ‘2’ in front of the year. Retailers can diversify and young people will have more disposable income and not less. It is practical, but I am not sure Imperial Tobacco will see it in the same light. But it made the statement. It is important to note that, and it is important to see those requirements addressed.
What things might be against it? Some have said it is open to challenge by civil libertarians. It well may be, but would a challenge be successful? We have heard from the honourable member for Rosevears that it is not against the Anti-Discrimination Act. We were given the response from Robin Banks, the Anti-Discrimination Commissioner, by the Leader’s office – and I thank the Leader for that – which shows that it is not against the Anti-Discrimination Act.
In the briefings, there were claims from small businesses that they have been belted around the ears with plain packaging and display restrictions and that the goodwill of their businesses was their superannuation. They claim they are losing value in their businesses over time and that, in fact, the country will lose tax revenue. There will presumably be a reduction in that revenue as a result of the illicit market picking up. They say they make a profit of around 8 to 9 per cent, and they spend up to $30 000 a week on stock. That is a lot of cigarettes.
In one location there were 58 robberies and 10 ram raids in 10 years. They intimated that this may increase as the people’s desire for cigarettes persists but they are not allowed to purchase them. You can read that in a number of ways, but that was the point being made. The upshot was that there will be extra costs for security, and they will lose incremental sales as purchasing from the mainland and online takes place. No doubt that will occur.
They also said they have heard a whisper that licence costs will increase. They see this legislation as totally detrimental to them, and I guess with any bill there are winners and losers. So 822 tobacco sellers in the state – including eight specialty tobacco retailers – are going to suffer that loss, but you could possibly save 700 lives. That might be the balance there. There might be calls for compensation, or ways of getting out of that side of retail. All these types of things might occur as a result of the bill passing.
There were many assertions made during the briefings and through representations and I will read you some of those as I recorded them.
The uptake of smoking and alcohol consumption tends to cluster around the determined legal age. Increasing the legal age of supply or purchase has been shown to increase the age at which people first experiment with or try cigarettes or alcohol. What is particularly important and favours the proposed legislation is that in relation to tobacco consumption, there is an age at which people no longer have a desire to take up smoking. Increasing the minimum age has a similar effect across the socioeconomic spectrum.
The tobacco companies only support measures they know do not work. In Tasmania they have to replace 700 smokers each year with new smokers – some would say new young smokers.
Other assertions include that it will have a major benefit for health in Tasmania. We could become the healthiest state by 2015.
The question was asked: what was the impact of legislation increasing the age for the purchase of cigarettes from 16 to 18 years on disparities in youth smoking behaviour in England? The introduction of this legislation was associated with reduced regular smoking among youth in England and appeared to have similar impact in different socioeconomic groups. The reductions in youth smoking identified by this study suggest that similar legislation may be an important and effective addition to national tobacco control strategies worldwide.
A point was made that our collective failure to rapidly reduce smoking rates will condemn Tasmanians to reduced access to, and less affordable, healthcare services in the future.
A question was raised: is there a risk of unintended consequences? I was told it is prudent to be mindful of potentially unintended consequences; however, the potential risks are infinitely smaller than the likely benefits.
Another question was: could this trigger a surge in sales on the black market or online? Some of the responses were: it is very unlikely. A black market needs three essential preconditions; first, a desirable or addictive product; second, a sufficient financial reward for those willing to risk engaging in illicit trade; and third, a tight restriction on availability.
According to this individual, the very incremental implementation of the tobacco-free generation means that the third criterion will simply not be met. In addition, the demand to support a black market will decline as the number of those addicted is reduced. It seems to me that there could be some truth in that. Further, they said that for online sales, it is highly unlikely that non‑smokers would suddenly develop an impulse to purchase cigarettes online. I do not know whether I can agree with that. I think people will immediately think of going online, that is where they will go. Such a situation might arise if we were to suddenly impose a statewide ban on the sale of tobacco products, which is clearly not the case, this person says. I guess the jury is out on that. We will have to see what happens over time.
On vigilance for unintended consequences, I was told it was worth noting that several highly respected research organisations will be closely scrutinising the effect of the legislation and will be able to report such effects during the three-year, 2021 and subsequent reviews. No doubt organisations like the Menzies Centre would be involved in some of that scrutiny.
Another assertion was that this legislation will not devastate small retailers. This issue has been explored on the basis of smoking rates, population demographics, numbers of small retail outlets and so on. It is possible to estimate the cost burden on small retailers. In the first year of implementation, the likely loss in net profit per small retailer would be approximately $10 per week. I find it hard to agree with that assertion as well, but it may not be as significant as some would think.
The progressive implementation of the tobacco-free generation will provide significant lead‑in time for small businesses to adjust. I think that is accurate. We are talking about going up one year every year, so it will give some lead-in time for people to do the maths and understand that at a certain time their business will no longer be viable, and so they can choose to get out early, so they have plenty of time to think that through.
Ms Rattray – Do you consider it may be less desirable or less valuable if the legislation is passed?
Mr VALENTINE – I mentioned earlier about the goodwill and that is the issue – that businesses, especially those that are tobacco products only, are in danger of losing goodwill over time. At what point do you cut and run, so to speak?
It comes back to that issue of, what price a life? There are going to be those that suffer and there is no question that tobacco retailers are going to be the ones that suffer. I do not know that you can overcome that. We are getting a reduction in tobacco sales and smokers, as I have read out in those statistics from the health survey, so at some point they are not going to be viable anyway, so I guess that is the way out.
I can understand the call for compensation, and how that is handled and whether that happens is not for this place to decide. It is probably going to have to go through a debate downstairs, where policy is set, as to how they approach that. The assertion continued that any business likely to survive or fail on the basis of $10 per week is likely to fail for reasons other than the implementation of this bill. I am sure the small business lobby would not agree with that view. We have had some lobbying from them on that.
A point was made that it is essential to recognise if Tasmanians do not spend money on tobacco products, that money will be available to be redirected to other parts of the Tasmanian economy. It is not all bad for the economy, but it would be for individual retailers.
I have been told by one member of the public that there are many unacknowledged benefits. Tobacco purchases can create a poverty trap for families without means because tobacco products are addictive. Purchase of these products gets prioritised above essentials such as food or prescription medicines and this can damage health and worsen conditions of poverty. Therefore, a shift away from purchasing addictive tobacco products creates a unique opportunity to begin addressing cost-of-living pressures for many Tasmanian households.
They talk about workplace productivity. It has been known to be lessened when you have a workforce addicted to smoking. We have all seen people going outside, standing around the corner having their smoke, and going back again. The legislation will help to improve workplace productivity in Tasmania over time.
Workplace injuries, particularly in manual trades, are exacerbated by tobacco smoking. For example, recovery from back injuries is slower amongst smokers and 45.8 per cent of Tasmanian males aged between 25 and 34 currently smoke. This legislation will be a major driver for improved workplace productivity and a much healthier workforce overall.
I cannot disagree with that submission. That seems to make sense to me. This is an interesting one – what if tobacco products became by some miracle of nature, contaminated with hepatitis A? Under current consumer safeguards, tobacco products should effectively be subject to an immediate product recall. It is only an accident of history that tobacco products remain legal. The sale of hepatitis A contaminated frozen berry products was legal. However, due to serious health concerns, this product has become the subject of a nationwide recall and no-one has put up a fight to demand their right to continue purchasing the product. An interesting point has been made there.
Assertions about being cost‑effective, as compared to several other potential strategies – smokers’ licences, mass social media campaigns and all of those things. The implementation and maintenance of this legislation would carry little foreseeable cost. There would be no additional costs to retailers in the implementation. The anticipated costs will revolve around the review of the effectiveness of the legislation, so it will probably be government cost when they review it.
If you look at it, all you are doing is increasing the number of people who cannot buy tobacco products one year at a time. They already have to ask for ID from people who look like they might be under 18, and they have to do the maths to work out whether they are, whereas this system is much easier. If a person’s birth year has a ‘2’ in front of it, it is a foregone conclusion – they cannot buy cigarettes. It is easier, there is no question about that, and there would not be a huge cost in putting it into effect.
Enforceability – there would be no additional enforcement effort necessary beyond that currently applied to enforcing the 18-year‑old requirement. Small businesses told us that it is impractical to police. They made an interesting point. Will the same people collect and sign for cigarettes when they are being delivered at the door? It is a sale, but what if it is a sale from interstate that is being delivered in Tasmania? It is a complication.
Another point they make is that obesity and alcohol, et cetera, are just as bad. There are many more things in society that are just as bad. Why aren’t we tackling those in a similar way such as telling fast food outlets they cannot sell foods with a certain fat content to people over 18 years of age? You can see where they are coming from.
The small business lobby says that as soon as the bill comes into play, there will be an immediate effect on all businesses. The government gets 80 cents in the dollar already. There will be an immediate effect because less product will be sold.
The tobacco companies told us many things, one of which was that the infrastructure spine for illegal hard drugs is being used for tobacco. No doubt that is happening. It is happening with chop-chop already, so in some ways little will change immediately. The other assertion is that the excise increases will further encourage illicit supply. Well, that is a federal matter. The state government does not get involved in that.
Those people in favour of the bill assert that 100 million people were killed by tobacco in the last century. In fact, one billion are expected to die from tobacco use in the twenty-first century. The Fairfax online surveys report that 73.2 per cent of respondents support this course of action. There were 29 000 responders to the smoke-free generation survey – 73.2 per cent is a lot of people. Smoking could be an historic twentieth century addiction.
Various statements have been made. For example, it should not be about stigmatising the user but the product. I believe the current stigma is increasing, and for certain sectors of our community it will be a prime motivator over time. The office workers out there smoking – isolated, round the corner, increasingly having people feel sorry for them because they have this addiction. People will want to get rid of that, but no so those in low socioeconomic areas, where there might be a greater prevalence of smoking and it is something that knits the group together. Even if this bill gets through, there is a need to back it up with a renewed drive to educate. This is not something that will just work simply on its own.
I have a concern about where e-cigarette devices will take us. Here we are today talking about tobacco and we can be doing all of this to reduce the smoking rate. However, electronic cigarettes might undo it all. Nicotine capsules cannot be sold but they can be obtained over the internet. How is this to be policed? Under this bill it will not be, but we learnt during our briefings that e‑cigarettes with a maximum of 32 milligrams of nicotine in the capsules can be bought online. Retailers can only sell a maximum of 16 milligrams in a cigarette.
It is a concern because the devices themselves are not outlawed yet; the research is still being done. I know this is called the tobacco-free generation but I want to read you something about e‑cigarettes which is important. This is the Cancer Council position statement on e-cigarettes and it is supported by the Heart Foundation:
Cancer Council of Australia and the National Heart Foundation of Australia recommend the following public policy measures be considered to assist in protecting young Australians from the potential harms of widespread electronic cigarette use: restricting the retail sale of non-nicotine electronic cigarettes.
They go on to say:
It is currently unlawful to sell electronic cigarettes that contain nicotine in any form. This is because nicotine is a scheduled poison and can only be lawfully sold in the form of legal tobacco products, which is an historical anomaly, and approved nicotine replacement products. This position could change in the future for individual nicotine electronic cigarette products that receive approval from the TGA.
The TGA is the Therapeutic Goods Administration – thank you the honourable member for Rumney.
Similar restrictions should also apply to non-nicotine electronic cigarettes which come in a variety of fruit, confectionery and other flavours that appeal to children. Laws in South Australia, Western Australia and Queensland prohibit the sale of products that resemble tobacco products. There are no such laws in other states and territories, meaning that non-nicotine electronic cigarettes when marketed without therapeutic claims can be lawfully sold, including to young people.
The second recommendation they make is: ‘ensuring smoke-free laws in each state and territory cover electronic cigarette use’. They go on to say:
The purchase, possession or use of electronic cigarettes containing nicotine is currently unlawful under state and territory poisons and public health laws. However, these laws are complicated and difficult to enforce. Prohibiting use of all electronic cigarettes under smoke-free laws would make the law clear for the community and ensure that both nicotine and non-nicotine electronic cigarettes are not used in places where smoking tobacco is prohibited.
Their third recommendation is: ‘prohibiting advertising and promotion of electronic cigarettes consistent with tobacco advertising prohibitions’. They explain that –
Electronic cigarettes are being aggressively promoted with young people and children clearly identified as a target market. Electronic cigarette advertising should be subject to similar restrictions as tobacco products.
They are saying a couple of times there that we should be targeting those in the restrictions.
You can go to the website and read all about their evidence and rationale under headings such as ‘The health effects of electronic cigarette use are currently unknown and should be subject to proper evaluation’. They are not just talking about those containing nicotine, they are talking about inhaling those other substances. It is not just about nicotine and about the effects of nicotine, it is about the other products that are in them. Further headings are, ‘Non-nicotine electronic cigarettes have potentially high appeal and can be lawfully sold to young people despite the health and social impacts remaining unknown’ and ‘Electronic cigarette use is growing at significant rates, particularly among young people, giving rise to an urgent need for regulation.’
Another heading reads: ‘Nicotine and non-nicotine electronic cigarette products should only be available for use as cessation aids and only if proven effective for that purpose.’
The last heading reads: ‘There are concerns that electronic cigarette use could act as a gateway to tobacco use.’ I can tell you it does. I went through the mall the other day – it was the first time I had ever seen it – and there was a person smoking an electronic cigarette. I thought these things were a bit in the ether but I saw it there.
Ms Forrest interjecting.
Mr VALENTINE – Did you say people on the west coast are doing it?
Ms Forrest – Yes.
Mr Mulder – How was this a pathway to cigarette smoking for you?
Mr VALENTINE – Not for me, it was not a pathway to cigarette smoking for me.
Mr Mulder – Why is it a gateway to smoking for anyone?
Mr VALENTINE – I suppose because you have the opportunity. Kids can buy them and they can look adult and that means that they have a greater propensity to go on and smoke real cigarettes. That is what it is about – or indeed smoke the nicotine capsules that come with that product. I think the pathway is there.
Mr Mulder – That may be an assumption.
Mr VALENTINE – It is a possibility, put it that way. Do you agree with that?
Mr Mulder – Lots of things are possibilities.
Mr VALENTINE – I am only quoting the website.
The bill presupposes that young people will stop accessing tobacco products. I do not think it is as quickly as one might think given the allure of prohibition and, as the member for Windermere said, the forbidden fruit. The current impetus in reduction of smoking may well slow down as the young get excitement from going against the oldies. However, we are not just talking about young people.
In the United States there is a movement called the 420 Movement where on 20 April every year, university students gather, sit on a lawn and smoke marijuana because it is illegal to do so. ‘You want to arrest us, come and arrest 4 000’. That is the sort of thing I would not want to see backfire in this.
Mr Dean – They can’t hear you because it is the retailer selling it to them so they can still smoke.
Mr VALENTINE – They can still smoke, that is exactly right, and that is one of its saving graces.
The World Health Organization Framework Convention on Tobacco Control was the first treaty adopted under the World Health Organization. That treaty sets out a global agenda to reduce and ultimately eliminate the social, economic and ecological harm being inflicted by the global tobacco industry. Australia is a signatory to this treaty.
Apart from the steps that have already been taken, is this the next step? This is the question we are all asking. Tobacco smoking is the largest single preventable cause of illness and death in our community. If you add up all the deaths related to injuries, road accidents, illicit drugs, alcohol, suicide, salt and fires, this still would not come close to the number of deaths and related diseases caused by tobacco smoking. That comes out of the ABS mortality data.
Is it supportable? There is clear support among the majority of Tasmanians, as reflected in the Cancer Council Tasmania survey, which was noted by the member for Windermere. This is a strike at cultural acceptability. But will it only serve to further alienate the disadvantaged, where the practice of smoking appears to be more acceptable? I talked about the office workers now cowering around the corner away from the front door, to have their puff. They will feel more isolated and they have an incentive to give up, but perhaps not the socially disadvantaged.
Are we in danger of creating a ‘them and us’ situation, with a more and more divided community? The community is divided anyway through social disadvantage, but this could increase that. Or is that perhaps a casualty in reaching the greater goal of reduced health costs and better overall public health? I am concerned about the level of prohibition to a degree, even on the sellers. I am of a mind, down the track, of legalising marijuana when you look at the way it clogs up the courts and demonises people.
Mr Mulder – I think that is congestion in the courts.
Mr VALENTINE – Congestion. Okay, in this context possibly you are right. So for me it goes against the grain to be talking about putting a prohibition on sales.
Mr Mulder – I do not think there is much of a workload in the courts through marijuana enforcement these days because they do not target users. The only clog up in the courts is the traffickers and suppliers. Only if you enforce the law does it have any effect on it.
Mr VALENTINE – Yes, but it would get rid of the suppliers, wouldn’t it? There would not be a black market any more.
Mr Mulder – I will leave it to you to suggest that there is no market for cannabis supply.
Mr VALENTINE – No, I said it would reduce the black market. It gives them more opportunity to regulate it. There is the broader question of licit and illicit drugs in our community. How should Tasmania approach public health, given the huge slice of our Budget that it demands? While this is a move, and some would say in the right direction, we need a more holistic approach, not only to tobacco, but alcohol and other drugs. We need to prevent things happening in the broader community that are detrimental to its collective health, but avoid a piecemeal approach.
I am not saying I am going to vote against this bill because it seems it might be piecemeal. This is another step that could work, given that it is not on the individual, it is only on the seller. But, more broadly, we need to think about these things and see how we can maximise the benefit from the minimal amount of dollars that the Government has to spend.
They are questions for the policymakers to deal with downstairs. I am of a mind to pass it in order to see the policymakers fully debate this in the other place. It could sit on the Table there until the next Parliament and might not get debated. I would hope it does. The joint House preventative health inquiry we are having at the moment will be very important, and hopefully the output from that will be used by the Government, as they supported the reformation of that committee. That will help the Government focus its policy and smoking will come up as part of that committee.
I said before I had concern about the under-aged being charged for presenting invalid ID. I am not aware of similar punitive measures associated with any other socially oriented matter such as this. I would like that explored a little during the Committee stage, it if gets there.
I will sum up by saying I broadly support harm minimisation rather than punitive measures. I was a member of the Council of Capital City Lord Mayors. I was the chair twice over 11 years and a focus of that particular group was on drugs. We ran a number of drug conferences on drugs and harm minimisation was very important to that group. They knew how difficult this area can be when it comes to drug use. Things like shooting up rooms were aired and supported by a lot of the capital cities.
I am about harm minimisation and not zero tolerance. I do not believe this bill is pushing a zero tolerance approach. It is not targeting the individual. It is targeting a mechanism of supply only, and that is the sale.
The product is basically a poison. The honourable member for Murchison pointed out there is no safe level. I suppose alcohol is a poison, in quantity over time for some people, but there is no safe level on this.
Whether the bill is successful, only time will tell. It could be considered to be a bit of social engineering, probably for the right reasons. I will support it into committee to address some of my areas of concern and may even support it at the third reading, given that it is not targeting the individual. It is targeting a mechanism and that is its saving grace. I thank the honourable member for Windermere for sticking with it and bringing it forward for debate.