Written evidence submitted by the Tobacco Manufacturers Association [LIT 098]

Thank you for inviting me to give evidence to your Committee on the 6th January as part of its litter inquiry.

I mentioned that I would write providing further evidence and clarification on a number of areas that it was not possible to go into on the day itself.

I raised the Local Government Declaration on Tobacco Control (LGDTC) and the impact that is was having in restricting the industry from playing a constructive role in bringing about behaviour change to encourage individuals to stop littering, whether it be cigarette butts, fast food packaging, gum or anything else, in partnership with both local government and the numerous groups and charities involved at the local level.

I mentioned that my organisation had sought Counsel's Opinion on the matter. I enclose a copy for your information. You will see, that it clearly states that there is no barrier, legal or otherwise, stopping local government or any other group from engaging with the industry on the matter of litter.

I mentioned that the Local Government Association had failed to respond to the three letters that I had sent to them since July last year in seeking a conversation on this matter. I enclose copies of this correspondence. To date, I am still awaiting a response.

I mentioned that Keep Britain Tidy (KBT) had taken a decision in December 2013 to no longer have any contact or dealings with the tobacco industry in the UK as a result of the LGDTC. I enclose a copy of this decision that is publicly available. I also include a letter from myself to the Chief Executive of KBT. To date, I am still awaiting a response.

I also mentioned the response given to a Parliamentary Question by the Local Government Minister on 16th December on the matter of involvement of local government and the tobacco industry in respect to litter prevention. I enclose a copy of this.

I emphasised in front of the Committee that the UK tobacco industry is content and willing to play a constructive role in addressing the issue of litter but that it was currently being prevented from doing so due to the misinterpretation of LGDTC by a number of parties. I would hope that your Committee, in its final report, would be able to bring some much needed common sense and clarity to this issue as clearly there exists an unsatisfactory position at present.

Finally, I would be happy to provide any further information or clarification to assist you and

your Committee in its work.

Local Government Declaration on Tobacco Control:

Opinion

Introduction

1.       This opinion addresses the meaning and legal effect of the Local Government Declaration on Tobacco Control (“the Declaration”).  The background to the opinion is that some local authorities who have signed the Declaration, have formed the view that it prevents them from, or justifies a blanket policy of not, engaging with the Tobacco Manufacturers’ Association  (“TMA”) on a wide range of matters, including combating the sale of counterfeit tobacco goods, addressing underage smoking, and anti-litter initiatives.  Further, other bodies engaged in related functions have concluded, or been led to understand, that they too must take the same position in order to continue working with such Local Authorities.

2.       For the reasons given below, my advice is that such an approach is not required or justified by the Declaration, and that if it is applied in this way, local authorities risk breaching other legal duties which they owe.

The meaning of the Declaration

3.       For present purposes, the key paragraphs in the Declaration are as follows (italics added):

“As local leaders in public health we welcome the… Commitment by the government to live up to its obligations as a party to the World Health Organisation’s Framework Convention on Tobacco Control (“FCTC”) and in particular to protect the development of public health policy from the vested interests of the tobacco industry…

We commit our Council from this date [………] to:  … Protect our tobacco control work from the commercial and vested interests of the tobacco industry by not accepting any partnerships, payments, gifts and services, monetary or in kind or research funding offered by the tobacco industry to officials or employees.” (the “Protection Commitment”)

4.       In my view, three important points are clear from this text.  First, it does not prevent all engagement between local authorities and the TMA.  For example there is nothing in the Declaration that obliges a local authority, including Trading Standards officers, to refuse to engage in dialogue with the TMA on issues relating to counterfeit goods.  Entering into such a dialogue by itself would plainly not constitute accepting a “partnership, payment, gift or service” etc.  There is a clear distinction for example between entering a partnership with someone, and simply discussing or co-operating on areas of mutual concern.

5.       Second, the point of the Protection Commitment is to protect the development of public health policies, relating to “tobacco control work”, from the perceived vested interests of the tobacco industry.  So it could, for example, be incompatible with the Declaration for a local authority which is formulating a campaign to encourage a reduction in smoking in its area, to accept financial sponsorship from the TMA for that campaign, and then to give the TMA a say in how the language of the campaign should be formulated.   But where a local authority is carrying out functions that are unrelated to public health, such as performing its statutory obligations concerning the reduction of litter, or preventing the sale of counterfeit goods (see further below), nothing in the Protection Commitment, or the Declaration more widely, would prevent it from accepting assistance from the TMA or tobacco manufacturers. 

6.       Third, nothing in the Declaration can properly be interpreted as preventing bodies which are not local authorities (including charities such as Keep Britain Tidy and cross-sector partnerships such as the Real Deal Campaign) from engaging with, or accepting assistance from, the tobacco industry, where it would otherwise be appropriate for them to do so, for example in co-operating in the reduction of smoking-related litter, or promoting public awareness of counterfeit goods.   Further, it would be impermissible for a local authority, relying on the Declaration, to refuse to deal with such a charitable or other body, simply on the basis that that body had itself accepted assistance from, or engaged in co-operation with, the TMA or members of the tobacco industry.

The legal effect of the Declaration

7.       The Protection Commitment contained in the Declaration is in part based on Article 5.3 FCTC.  The FCTC, being an international law treaty, rather than legislation passed by the UK Parliament, does not of itself create any enforceable legal obligations on local authorities in the UK[1].  But it is open to local authorities to adopt some of its terms voluntarily, and indeed to adopt a policy such as the Declaration that in part goes further than the FCTC.  That is what has happened in this case, since the words in italics above in the Protection Commitment do go further than anything in the FCTC.  

8.       Having adopted such a policy voluntarily, there might be an argument that a local authority should follow its terms, pursuant to the public law principle of “legitimate expectation”.  However, this principle does not impose an absolute obligation on local authorities to follow the terms of the Declaration, and in particular, it is subject to two important qualifications as set out below.

9.       First, nothing in the Declaration can operate inconsistently with a local authority’s statutory obligations.  So for example, s.89 of the Environmental Protection Act 1990 requires local authorities to keep land and highways clear of litter; and s.4 of the Litter Act 1983 requires local councils to consult such voluntary bodies as they consider appropriate in relation to the steps to be taken to reduce litter.  Likewise, Trading Standards authorities have obligations under the Consumer Protection from Unfair Trading Regulations 2008 to enforce the prohibitions against trading in counterfeit goods contained in those Regulations. 

10.   Second, general principles of public law mean that in exercising its statutory powers, a public authority must: (a) act rationally; (b) take into account all relevant considerations; and (c) not fetter its discretion by adopting a blanket policy that never allows for the possibility of exceptions to be made.

11.   What these qualifications mean in the present context is that the Declaration cannot be lawfully interpreted as imposing a blanket ban on public authorities from engaging with, or accepting funding or other assistance from, the TMA or tobacco manufacturers. 

12.   In particular, there may be cases where accepting assistance from the TMA or tobacco manufacturer may positively enable a Trading Standards authority to enforce the 2008 Regulations, where otherwise it would be unable to do so.  In such situations it might well be unlawful for the Trading Standards authority to refuse to accept such assistance in reliance on the Declaration.  For example as I understand it, BAT has a laboratory in Southampton that is the only facility in the country which is able to detect counterfeit BAT goods.  It would arguably be both irrational, and a failure properly to discharge the statutory enforcement obligation in the 2008 Regulations, for a Trading Standards authority to refuse to use such facility, just because it is owned by BAT.    Similarly, I understand that the TMA/tobacco manufacturers have in the past made funding available to enable Trading Standards authorities to employ sniffer dogs to detect counterfeit goods.   It would again be wrong for a TS authority to refuse such funding, simply by relying on a perceived blanket ban contained in the Declaration, without considering whether, overall, it would be in the public’s interest to accept such funding.

13.   This finally leads to an important point, which is the potential inconsistency between a strict and blanket adherence to the Declaration, and the achievement of its overall objective to protect the public from the harmful effects of tobacco consumption.      Given the increased health risks associated with some counterfeit tobacco products[2], and the fact that they are generally cheaper and thus easier to purchase than genuine goods, it will, in general, be positively in the interest of protecting public health for local/TS authorities to combat the sales of counterfeit goods, and to obtain all the assistance they lawfully can in doing so, including from the tobacco industry.   Likewise, accepting assistance from the tobacco industry in combatting under-age smoking, will generally promote rather than hinder the protection of public health, and cannot rationally be seen as objectionable if done in a transparent way.

14.   In other words, where the interests of the tobacco industry and the protection of public health coincide, it is likely to be unlawful for local and trading standards authorities to refuse to co-operate with the industry, simply in reliance on the Declaration.

Conclusion

15.   From the information provided to me, it appears that some local authorities are interpreting the Declaration too widely, and have not appreciated its legal limits.  The Declaration does not on its own terms prohibit all engagement with the TMA and its members, and cannot lawfully impose a blanket ban on such engagement, or even on accepting funding or other assistance from the TMA, without considering on a case by case basis whether this: (a) is rational in the particular circumstances of each situation, and (b) complies with the local authorities’ statutory duties generally.

SAM GRODZINSKI QC

Blackstone Chambers

1 October 2014

APPENDIX

Letter from the TMA to the Local Government Association dated 4 November 2014

I am writing as the Director General of the Tobacco Manufacturer's Association, the trade association for the tobacco companies that operate in the UK. The TMA's three members are British American Tobacco UK Ltd, Gallagher Ltd (a member of the Japan Tobacco International group) and Imperial Tobacco Ltd.

I wrote to you in July regarding the LGA's document 'Investing in our Nation's Future- The First

100 Days of the Next Government' that set out the proposal that a fifth of receipts from tobacco duty should be hypothecated to local government for the use of both smoking cessation and tackling the black market in tobacco.

I note that you repeat this call in your recent submission to the CLG Select Committee enquiry on litter saying: "The LGA recently called for a fifth of existing tobacco duty to be used in preventative measures by local authorities to reduce smoking and its health impacts, which could also contribute towards the cost of clearing up cigarette litter."

Despite the industry's wish to play an active role in helping to reduce the problem, it is clear that there are increasingly barriers to the tobacco industry working effectively on litter as a result of the misinterpretation by local and national governments and charities of:

• The entirely voluntary Local Government Declaration on Tobacco Control (LGDTC); and

• Article 5.3 of the World Health Organisation's Framework Convention on Tobacco Control (FCTC), which addresses engagement with the tobacco industry.

Neither Article 5.3 nor the Local Government Declaration call for the exclusion of the tobacco industry from areas of Government activity unrelated to public health policy, such as tackling litter. Yet, certain bodies and authorities have interpreted the above as reasons to disengage with the industry.

I note in its response to the enquiry, the government set out its wish to see the industry and local government working together on tackling the issue of cigarette litter: "Subject to the provisions of Article 5.3 of the World Health Organisation Framework Convention on Tobacco Control and accompanying Guidelines on Implementation, which restrict the ability of central government to "endorse, support, form partnerships with or participate in activities of the tobacco industry described as socially responsible', we believe that councils and the wider public sector, as well as manufacturers and associated trade bodies, need to work out a means to address this litter issue."

I would therefore welcome the opportunity to meet with you to discuss how this can be achieved.

Given their interest in this matter, I am copying this letter to the Secretary of State, the Local

Government Minister and the Permanent Secretary at the Department of Communities and

Local Government.

Letter from the TMA to Keep Britain Tidy dated 16 December 2014

I am sorry that you were not able to attend our Christmas reception in London. It would have been helpful to have had a chat about potential partnership opportunities to address smoking-related litter.

In relation to partnership opportunities, I understand that last December the Board of Keep Britain Tidy decided that it would no longer work with the tobacco industry. As you know, JTI was a co­ sponsor of your 'Love Where You Live campaign' but KBT made the decision to end its relationship with them, citing pressure from your local authority partners.

You might find it helpful to know that the TMA has now taken legal advice on the Local Government Declaration on Tobacco Control. The advice is clear and sets out that where a local authority is carrying out functions that are unrelated to public health, such as performing its statutory obligations concerning the reduction of litter, or preventing the sale of counterfeit goods, nothing in the Protection Commitment, or the Declaration more widely, would prevent it from accepting assistance from the TMA or tobacco manufacturers.

In addition, nothing in the Declaration can properly be interpreted as preventing bodies which are not local authorities, including organisations such as your own, from engaging with, or accepting assistance from, the tobacco industry, where it would otherwise be appropriate for them to do so, for example in co-operating in the reduction of smoking-related litter, or promoting public awareness of counterfeit goods. Further, it would be impermissible for a local authority, relying on the Declaration, to refuse to deal with such a charitable or other body, simply on the basis that that body had itself accepted assistance from, or engaged in co-operation with, the TMA or members of the tobacco industry.

Further, "The FCTC (Framework Convention on Tobacco Control) and its Guidelines are not legally binding on local authorities or third party organisations. The FCTC is an international law treaty and has no direct effect in English law."

Therefore In view of the fact that the Guidance is no bar for Keep Britain Tidy not to engage with the tobacco industry, I would be very happy to meet you to discuss how we might work together in the future.

Furthermore, as you will be aware the Communities and Local Government Select Committee is currently holding an enquiry into the issue of litter. I would draw your attention to the Government's evidence to the inquiry that clearly set out the belief that councils and the wider public sector, as well as manufacturers and associated trade bodies, need to work together to tackle smoking-related litter. It went on to say that despite councils now having public health responsibilities, it should not prevent joint working on litter and action to keep our streets clean.

Therefore, I would welcome an early opportunity to meet with you to discuss how the industry can play a full and meaningful role in helping to tackle the issue of litter.

Given his clear interest in this matter, I am copying this letter to the Secretary of State for

Communities and Local Government.

I look forward to hearing from you.

Letter from the TMA to the Local Government Association Economy and Transport Board dated 2 December 2014

I am writing as the Director General of the Tobacco Manufacturer's Association, the trade association for the tobacco companies that operate in the UK. The TMA's three members are British American Tobacco UK Ltd, Gallagher Ltd (a member of the Japan Tobacco International group) and Imperial Tobacco Ltd.

I note that in your recent submission to the CLG Select Committee enquiry on litter that you call for a portion of tobacco duty to be hypothecated to local government for the purposes of dealing with litter from tobacco products, saying: "The LGA recently called for a fifth of existing tobacco duty to be used in preventative measures by local authorities to reduce smoking and its health impacts, which could also contribute towards the cost of clearing up cigarette litter."

I note in its response to the enquiry, the government set out its wish to see the industry and local government working together on tackling the issue of cigarette litter: "Subject to the provisions of Article 5.3 of the World Health Organisation Framework Convention on Tobacco Control and accompanying Guidelines on Implementation, which restrict the ability of central government to "endorse, support, form partnerships with or participate in activities of the tobacco industry described as socially responsible', we believe that councils and the wider public sector, as well as manufacturers and associated trade bodies, need to work out a means to address this litter issue."

The tobacco industry is more than happy to engage and work with local government to understand the nature of the problem and to work collectively to achieve solutions regarding the issue of litter from tobacco products.

I would therefore welcome the opportunity to meet with you in your capacity of Chairman of the LGA's Environment Board to discuss how this can be achieved.

I look forward to hearing from you.

Letter from the TMA to the Local Government Association dated 30 July 2014

I am writing as Director General of the Tobacco Manufacturer's Association, the trade association for the tobacco companies that operate in the UK. The TMA's three members are British American Tobacco UK Ltd, Gallaher Ltd (a member of the Japan Tobacco International group) and Imperial Tobacco Ltd.

I note with interest that you propose in your recent document 'Investing in our Nation's Future- The First 100 Days of the Next Government' that a fifth of receipts from tobacco duty should be hypothecated to the local government for the use of both smoking cessation and tackling the black market in tobacco.

The industry a lrea dy does much to tackle issues around illicit trade and works closely with enforcement agencies both at the national level such as HMRC and UKBA and, at the local level, Trading Standards. We have though in recent times noticed the impact that the reductions in local government budgets a r e having at the local level to undertake this work.

I would therefore welcome the opportunity to explore in more detail how this hypothecation proposal could work in practice and whether the industry could support such a call in the run up to the general election in May.

I look forward to hearing from you.

Tobacco: Written question- 214200

Q

Asked by Philip Davies (Shipley)

Asked on: 11 November 2014

Department for Communities and Local Government

Tobacco

214200

To ask the Secretary of State for Communities and Local Government, what assessment he has made of the effectiveness of the Local Government Declaration on Tobacco Control; and what representations his Department received on the potential implications of the Declaration before June 2013,

A

Answered by: Kris Hopkins

Answered on: 16 December 2014

My Department has not undertaken any formal assessment or review, nor am I aware of any representations prior to June 2013. It is for individual councils to determine whether they wish to sign up to such a voluntary, local government-led initiative.

Notwithstanding, as stated in the Government's 2011 Tobacco Control Plan for England, we recognise there may be legitimate operational reasons for local authorities to deal with the tobacco industry, such as action by trading standards to tackle the illicit tobacco trade (which is frequently linked to low-level and large-scale organised crime; costs taxpayers' money through tax evasion; and makes it easier for children to smoke).

Moreover, further to the Government's recent evidence to the Communities and Local Government Select Committee inquiry on litter {21October 2014, Reference LIT0093), we believe that councils and the wider public sector, as well as manufacturers and associated trade bodies, need to work together to tackle smoking-related litter- especially given the public smoking ban has increased smoking outside, Councils now have public health responsibilities, but this should not prevent joint working on litter and action to keep our streets clean.

In both cases, we would recommend that all dealings are fully transparent.

Keep Britain Tidy and tobacco manufacturers - 11th December 2013

We have noted that the Local Government Declaration on Tobacco Control, which commits local authorities to taking a strong stance against working with the tobacco industry, accepting funding from it or working with organisations that do, is due to be launched on 11th December. We are also mindful of Article 5.3 of the WHO Framework Convention on Tobacco Control which requires Parties (including local authorities in the UK) to "protect their public health policies with respect to tobacco control from the commercial and vested interests of the tobacco industry". We note the fact that Defra withdrew ministerial engagement in Love Where You Live campaign in 2012 as a result of the British Government's adoption of the WHO Convention and the fact the tobacco industry part funded it.

There is now strong cross-party consensus on tobacco control, with every major political party signed up to a comprehensive approach to reduce smoking. Everything contained in the Local Government Declaration on Tobacco Control has previously been committed to at a national level by all political parties and the Declaration is also strongly supported by the wider public health community including The Trading Standards Association, Chartered Institute of Environmental Health and the Association of Directors of Public Health as well as Public Health England, the Public Health Minister and the Chief Medical Officer.

Given that Keep Britain Tidy's body of work includes a number of health and wellbeing connections­ around Eco-Schools, green spaces, our sustainability & wellbeing strand -the above developments are of considerable concern and it is clear that we need to take a clear and unambiguous position on this issue.

Following a review of the political, social and policy landscape by our trustees, our considered view is that it is not in the best interests of our charity to accept any funding from the tobacco manufacturers. We have done so in the past but will no longer be doing so in the future.

This decision, which will take immediate effect, has not been taken lightly and Keep Britain Tidy remains concerned that smoking related litter is the most frequent item of litter found on England's streets- found on more than 80% of sites we survey- and that there is an urgent need to influence the behaviour of smokers in relation to smoking litter. Cleaning up after smokers, as part of wider litter collection and street cleansing, represents a very substantial cost to local authorities and other land managers.

We have therefore resolved, with effect from 4th December 2013 that Keep Britain Tidy:-

• Maintains our concern about the volume of smoking related litter in England and our commitment to raise the profile of the problem and to stimulate greater action to reduce and ultimately eliminate it;
• Seeks to influence the emerging Local Government Declaration on Tobacco Control such that it acknowledges the problems associated with smoking litter and helps promote the need to tackle smoking related litter with members of the Smoke Free Action Coalition which we will also seek to join;
• Will no longer accept funding (whether sponsorship, grants, gifts, payment for services or funding of any kind) from the tobacco manufacturers;
• Will not work with the tobacco manufacturers, but will continue to lobby the industry to tackle the problem of smoking litter and to take action to influence smokers' behaviour in relation to littering;
• Will look to develop our anti-smoking litter work through funding and collaborations with local authorities and others.

January 2015