tocacco plant Native American Tobaccoo flower, leaves, and buds

tocacco Tobacco is an annual or bi-annual growing 1-3 meters tall with large sticky leaves that contain nicotine. Native to the Americas, tobacco has a long history of use as a shamanic inebriant and stimulant. It is extremely popular and well-known for its addictive potential.

tocacco nicotina Nicotiana tabacum

tocacco Nicotiana rustica leaves. Nicotiana rustica leaves have a nicotine content as high as 9%, whereas Nicotiana tabacum (common tobacco) leaves contain about 1 to 3%

tocacco cigar A cigar is a tightly rolled bundle of dried and fermented tobacco which is ignited so that its smoke may be drawn into the mouth. Cigar tobacco is grown in significant quantities in Brazil, Cameroon, Cuba, Dominican Republic, Honduras, Indonesia, Mexico, Nicaragua, Sumatra, Philippines, and the Eastern United States.

tocacco Tobacco is an agricultural product processed from the fresh leaves of plants in the genus Nicotiana. It can be consumed, used as an organic pesticide, and in the form of nicotine tartrate it is used in some medicines. In consumption it may be in the form of cigarettes smoking, snuffing, chewing, dipping tobacco, or snus.

tocacco Cigarettes are smoking products consumed by people and made out of cut tobacco leaves. Cigars are typically composed completely of whole-leaf tobacco. A cigarette has smaller size, composed of processed leaf, and white paper wrapping. The term cigarette refers to a tobacco cigarette too but it can apply to similar devices containing other herbs, such as cannabis.
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Bigger Warning Label Requirements Disserve Canadian Consumers And Undermine Property Rights

Under a recent proposal, Health Canada regulators are seeking to increase the size of graphic warnings on tobacco products to 75% of the package. Enactment of this proposal would be dramatic, leaving available just one-quarter of a legal product’s packaging for branding and consumer information. Yet there is little if any evidence to support the assumption that such increased warnings will actually alter smokers’ behavior. More importantly, government agencies are ignoring an opportunity to use the cigarette package to inform smokers of alternative smokeless tobacco and nicotine products, which carry far less risks than smoking. Finally, increasing the graphic warnings at the expense of the brand also amounts to a diminution of the trademark, which in turn may facilitate the counterfeit trade of cigarettes. Health Canada’s proposal raises troubling concerns for all consumers and property owners.

Canada Expanding a Troubling Trend

Several countries have required graphic warning labels for tobacco products in response to the Framework Convention on Tobacco Control (FCTC), which was adopted in 2003 through the World Health Organization (WHO) and signed by 168 countries, including the United States. Interest groups will likely not stop at requiring graphic images. Rather, finding inspiration in the Australian government’s recent requirement that cigarettes be sold in plain packages beginning January 2012, anti-smoking groups in Canada and elsewhere will only increase their efforts to ban all brand identification.

Nor is tobacco the only product under fire. In Thailand, regulators are planning to require graphic warning labels on all domestic and imported beer, wine, and liquor bottles. The proposed label would cover at least 30% of a bottle’s surface area and would include remarkably explicit warnings about the risks of alcohol abuse. One warning contains a photo of a shirtless man grabbing a woman by her hair, with his clenched fist raised to strike her in the face, alongside the warning: “Alcohol consumption could harm yourself, your children, and family.” Patrick Barta and Christina Passariello, Global Liquor Makers Fight Graphic Labels in Thailand, WALL ST. J., Sept. 17, 2010 at B1.

Permitting government regulators to essentially confiscate the vast majority of a legal product’s label is a serious violation of property and consumer rights. There is little doubt that the warning-label approach of tobacco will soon infect even more products that are deemed “unhealthy.” At its core, Health Canada’s proposal assumes that graphic warnings are effective in decreasing smoking rates. But that assumption, no matter how well-intended, is just that-a bald conclusion that is assumed without any basis in evidence. And while some reports have confirmed that graphic warnings or larger font sizes in warnings can increase a consumer’s awareness of the risks inherent in smoking, no long-term studies have demonstrated that larger graphic warnings actually alter smokers’ behaviors.

Missing a Chance to Improve Health

Presumably motivated by a desire to improve public health, the agencies have adopted a myopic view that larger graphical warnings are the best means to improve health. But the regulators of Health Canada and other governmental agencies are also overlooking a rare opportunity to improve health. Instead of simply trying to shock smokers with possibly ineffective, graphic images, Health Canada regulators ought to consider including information about smoking alternatives, such as new smokeless tobacco products and other nicotine sources.

Smokeless tobacco and nicotine products are not new. Snuff, chew, and “dip” have been sold for decades. Nicotine replacement products include the nicotine patch and nicotine gum. But new smokeless tobacco and nicotine products have been introduced in recent years. Nicorette® mini Lozenge, a mint-flavored dissolvable tablet containing either 2 mg or 4 mg of nicotine, was recently introduced. Another alternate product is Smoke-Break®, an investigational smoking-cessation device that is a clear tube resembling a cigarette and containing a fruit-flavored gel with 1.5 mg of nicotine. More recent smokeless tobacco products include Camel Snus (small pouches of tobacco that can be placed under the upper lip) and Camel Orbs (dissolvable tobacco strips).

The new smokeless tobacco and nicotine products can be effective aids for smoking cessation or safe alternatives to smoking. A recent episode of the CBS news program 60 Minutes highlighted the harm-reducing benefits of certain smokeless tobacco products. During the episode, Dr. Karl Fagerstrom, a world-renown nicotine addiction scientist, agreed that the smokeless tobacco snus is nowhere near as harmful as cigarettes. Dr. Fagerstrom, who received the 1999 WHO Medal for his work on medications to help smokers quit, stated that smokeless tobacco products such as snus are “somewhere between 99 to 90 percent less harmful than smoking.”

Nicotine itself is virtually harmless in the amounts present in smokeless tobacco products. Nicotine, although addictive, does not increase the risk of any cancer, including lung cancer, with perhaps pancreatic cancer being a minimal exception. Nor does nicotine cause any of the conditions shown in graphic warnings mandated by the Canadian government.

In fact, numerous studies have suggested that nicotine has certain beneficial effects. A recent study by investigators at the National Institutes of Health concluded that nicotine has “significant positive effects” on certain cognitive and motor abilities, including fine motor skills and short-term memory. Simply put, smokeless tobacco and nicotine products are far safer than smoking. See, e.g., Brad Rodu & William T. Godshall, Tobacco Harm Reduction: An Alternative Cessation Strategy for Inveterate Smokers, 3 HARM REDUCTION J. 37 (2010); S.J. Heishman, et al., Meta-analysis of the Acute Effects of Nicotine and Smoking on Human Performance, Psychopharmacology (2010), available at http://www.ncbi.nlm.nih.gov/pubmed/20414766.

To maximize gains in public health, Health Canada and other national health agencies should consider informing smokers about important alternatives such as smokeless tobacco products, rather than just trying to scare smokers with graphic pictures on cigarette packages.

Problems with Intellectual Property and Counterfeiting

Increasing the size of graphic warnings on cigarette packages also amounts to a diminution of the trademark. Trademarks and copyrights associated with the branding and packaging of tobacco products provide substantial goodwill of significant value to both the owners of the property rights and the investors of those companies. As noted by intellectual property experts, “[c]ompliance with plain packaging regulations would wipe out the value of this goodwill (often quantified in the stock prices of publicly traded companies held both individually and in mutual funds).” Tracy-Gene G. Durkin & Jeremy M. Klass, Global Push for “Plain Packaging” on Consumer Products Will Burn Intellectual Property Rights, 18 WLF LEGAL OP. LTR, No. 20, Sept. 11, 2009.

Overly burdensome graphic warnings on tobacco products would significantly undermine intellectual property laws. See id.; see also Richard A Samp, Proposed Treaty Guidelines Threaten Rights and Consumer Choice, 18 WLF LEGAL OP. LTR, No. 26, Nov. 21, 2008. Specifically, Article 20 of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights, provides that “the use of a trademark . . . shall not be unjustifiably encumbered by special requirements, such as . . . [mandating] use in [a] manner detrimental to its capability to distinguish goods and services [from one another].” Increasing the size of graphic warnings to 75% would significantly diminish the value of the trademarks for the various brands in violation of Article 20.

More importantly, decreasing a consumer’s ability to use trademarks to differentiate products would actually hinder Health Canada’s goal of reducing smoking. Strong trademark recognition assists consumers, retailers, and law enforcement actors to distinguish between bona fide products and contraband. Recent studies have indicated that the biggest problem facing Canadian youth who are experimenting with smoking is not the purported lack of large graphic warnings, but the growing black market for cigarettes. According to some reports, almost 50% of all cigarettes sold in Ontario and Quebec are contraband. Given this reality, Health Canada’s plan to increase graphic warnings could very well facilitate the availability of contraband cigarettes.

Graphic Images at Baseball Games-America’s New Pastime?

Health Canada’s proposal should alarm all consumers, not just smokers. Under the guise of expert reports, Health Canada proposes legal requirements that will eventually destroy valuable trademarks of tobacco companies. Before long, experts will conclude that graphic warnings are necessary for any consumer product that might cause health problems.

Health Canada’s rationale can easily be applied to foods, beverages, and other consumer products that present certain health risks. Excessive consumption of beer and distilled spirits can lead to increased risks of serious health problems. Last year, New Jersey residents sued Nathan’s Famous and Oscar Mayer for consumer fraud, asserting that hot dog packages should have labels that reads “Consuming hot dogs and other processed meats increases the risk of cancer.”

Readers skeptical of the “slippery slope” argument should recognize that interest groups and lawyers have been explicit in their comparison to tobacco. The president of Cancer Project, the group seeking the hot dog warning labels, stated, “Just as tobacco causes lung cancer, processed meats are linked to colon cancer. Companies that sell hot dogs are well aware of the danger, and their customers deserve the same information.” John Banzhaf, a veteran of the tobacco lawsuits, has in recent years targeted fast food companies with tactics similar to those he used against tobacco companies.

If Canada or other national governments choose to increase the size of graphic warnings, interest groups will look to those decisions as a stepping stone towards graphic warning labels on all types of food and beverages that carry certain health risks, regardless of how minimal.

How long before a day at the ballpark, enjoying America’s pastime, with a beer and a hotdog, becomes a bombardment of graphic and disturbing images? As Banzhaf has recognized, “Like sharks smell blood, lawyers smell money-so I’m sure many of my colleagues are looking out and saying if McDonald’s will cave for $12 million, who else can we go after?”

Cory L. Andrews
Washington Legal Foundation.

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