Scholars discuss the challenges for regulating tobacco in the courtroom and real world

International laws have been strengthening the regulation over tobacco control. But the suits brought by Philip Morris International (PMI) against tobacco regulations, as well as the sluggish improvement in the regulatory environment in Indonesia demonstrate that these regulations are facing serious challenges in both the courtroom and real world, from multiple interested parties including corporations, government, religious and cultural powers, and consumers etc.

Two scholars presented their research on this topic from different disciplines’ perspectives at a talk on Friday, October 20. Sergio Puig, associate professor at University of Arizona James E. Rogers College of Law, examined the litigation tactics of PMI in international courts through the lens of regulatory ‘chill’, preemption, and harmonization. Marina Welker, associate professor of Anthropology at Cornell University, discussed her anthropological field research in cigarette marketing regulations in Indonesia. Their talk was part of the speaker series of Sawyer Seminar on Corporations & International Law at Duke University.

Puig used a diagram of PMI’s wide-ranging product portfolio to show its dominance and power in the cigarette market. And this power enabled PMI to manipulate the market, such as the US, Puig argued. He gave an example of how PMI, through lobbying the Indonesia government to bring a suit against the Family Smoking Prevention and Tobacco Control Act, successfully protect its market share as the largest seller for the menthol-flavoured cigarettes, which is usually seen as the starter product for new smokers.

Besides the US, PMI has been bringing suits in countries worldwide, as Puig showed a world map with the distribution of suits brought up by PMI highlighted on it, including Honduras, Cube, Dominican Republic, Indonesia, Uruguay, Australia, and some member states of the European Union. Then Puig gave more details about two specific cases, the Investment Dispute PCA No. 2012-12 and the European Court of Justice (ECJ) Disputes, showing PMI’s extensive effort to invalidate the production and marketing restrictions on cigarettes.

“PMI framed the opportunity to bring up these cases”, Puig said. When looking into the Vekony v. Hungary case, Puig found the LinkedIn profile of a member of the Vekony family. It says Mr Vekony is a senior management executive working for PMI Hungary. Although their connections are determined yet, it is highly suspicious given the previous aggressive litigation tactics deployed by PMI. Thus, Puig argued, we should pay attention to how corporations might use untraditional methods to influence regulations.

With an eye of an anthropologist, Welker’s field research provides further insights into the complexity of tobacco control in the real world. Based on the figures and pictures, as well as her personal experience, we were able to catch a glimpse of the pervasiveness and popularity of cigarettes in Indonesia: a teenager was climbing a bamboo ladder to pick to cloves, hundreds of women workers were working on a hand-rolling factory, a four-year-old boy was giving a journalist a lighter on the street, the cigarette shop in a college cafeteria was crowded, cigarette supports were smoking big cigarettes to thumb nose at anti-cigarette activists, advertisement and promotion events for cigarette are everywhere. On this cigarette supply chain, from production to marketing to consumption, people, regardless of their age, gender, and occupations, are involved in the prosperity of cigarettes.

“The price of cigarettes is so cheap and everyone could afford to buy one”, Welker explained. But the price is not the single reason for the long-existing difficulties in cigarette control or the government could solve this problem by raising the price. Like Puig, Welker brought the responsibility of the cigarette companies to our attention. Kretek, who took third of the cigarette market share in Indonesia, actively promoted its product in seductive ways, such as double messaging of advertisement (e.g. using DOn’t do IT to persuade people to smoke in a seemingly anti-smoke slogan). However, the responsibility also lies with other interested parties, as Welker pointed out. For example, the government is hesitating on implementing heavy restriction on cigarette since it would slow down the economy as Kretek and other cigarette companies contribute a lot of tax and jobs. Besides the government, religious organizations such as Nahdlatul Ulama also has an incentive to encourage members to smoke in order to conserve the funding sources and cultural heritage.

Puig and Welker together brought an in-depth view of the challenges in regulating tobacco in the courtroom and real-world settings. In the Q&A session, political, religious, and gender issues involved in tobacco business and control were further discussed by the guest speakers and participants. This inspires us to think about the role of the international law in forming a comprehensive mechanism to tobacco control besides regulating corporations.

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