2016-09-01
Speech in Parliament on the Tobacco Amendment Bill 2016: I rise to speak on the Tobacco Amendment Bill 2016. This bill aims to prohibit smoking in outdoor dining areas and to regulate the sale, promotion and use of e-cigarette products. The Greens have been strong advocates for the restriction of smoking in the interests of public health. For the entire time that I have been in Parliament, we have attempted on a number of occasions to improve the laws. The fact that 11 000 people still die in Victoria every year from smoking-related diseases remains a horrifying statistic.
We hope very much and expect that this death toll will improve over the coming decades as health benefits from a reduction in smoking rates permeate through the ommunity and fewer and fewer people begin smoking and then have to suffer the terrible consequences later on.
It is in the context of the ongoing health threat smoking poses that the Greens in the previous Parliament, and in absence of action from the previous government, brought in legislation to attempt to introduce smoking prohibitions in outdoor dining areas and drinking areas. At the time both the coalition government and the Labor opposition voted against our bill, I believe largely on the basis of some fairly flimsy excuses. We are pleased to finally see progress in this area. Prohibiting smoking in dining areas will have many benefits. We know when smoking was banned in outdoor public spaces it acted as a significant trigger to encourage many people to quit. It has also helped prevent many young people from taking up smoking in the first place. Banning smoking in outdoor dining areas is the next logical step and will again encourage people to cut down on their smoking or even quit, and it will obviously make for much more pleasant outdoor dining for the majority of us who do not smoke. Further, it will better protect workers from regular exposure to smoke, and it will also denormalise smoking for children.
Research from Queensland, where smoking restrictions in outdoor dining and drinking areas have been in place for many years—in fact since 2005—also shows that such a ban will not have negative impact on businesses and in fact may improve business for some. I am now
in my late 50s, and I can remember several times when it was thought living as we knew it would end when you could no longer smoke in picture theatres, on public transport and in a range of different areas. Life has gone on, and in fact the one good thing from all of those bans is that smoking rates have dropped dramatically.
We are very pleased with this aspect of the bill and will be supporting it. Having said that, we are very disappointed that this legislation falls short of potential reform. In particular the failure to include outdoor drinking areas in the prohibition is problematic for several reasons. The Greens proposed legislation that sought a ban on both outdoor dining and drinking areas. It did, however, allow for a designated smoking area in venues serving alcohol, as we did not want to force smokers out onto the streets late at night outside pubs and clubs, for example. However, we had tight restrictions on the designated area, including that it could be no more than 50 per cent of the outdoor area so that non-smokers could have a smoke-free outdoor area to go to. Further, it did not allow food or drink service in the area, offering better protection for workers, nor did it allow entertainment in the smoking areas, to encourage patrons to enter the area just to smoke and then leave, reducing their exposure to second-hand smoke.
In this bill we welcome the ban on smoking in outdoor dining areas and the separation of outdoor dining and drinking areas by a 2.1-metre wall or 4-metre buffer. However, there is no restriction in this bill on the size of the outdoor drinking area relative to the outdoor dining area, meaning that if a pub decided to do so, it could designate the entire outdoor area as a drinking area, excluding diners from being able to use the outdoors. The same goes for cafes, though it seems less likely, but it could be the case that outdoor areas of some cafes become coffee and smoking areas, excluding all patrons from eating when enjoying the outdoors. Certainly this has been the experience of New South Wales, where similar legislation was recently introduced. We have found clear examples of where eating has not been allowed in outdoor areas of pubs. This has a perverse outcome of a law that needs to be monitored.
Allowing people to eat a bag of chips in a drinking area does not in my mind improve the safe drinking consequences of this bill, despite the assertion by the government. You would have to eat a lot of chips to fill up and slow the absorption of alcohol into the bloodstream. If a person is sitting with a group in the drinking and smoking area and desires a meal or some hot chips while drinking, they would have to ask the entire group to move to another table in the dining area, which may or may not be available in a busy place. This could act as a disincentive for that person to even request the move or to move themselves to get food, meaning that they may become drunker faster, which is not what we would like to encourage.
Further, by designating certain areas as drinking and others as dining, it actually restricts the number of tables where food can be served in any given venue. In a very busy venue during peak dining times, waits for dining tables may become an issue, meaning that people will get drunker before they can get access to the dining area. Further, there is insufficient protection of workers who will continue to be exposed to second-hand smoke when serving and clearing drinks from tables. This law would be difficult to enforce in outdoor areas where smoking may be allowed or banned depending on the time of day during which food is served.
So for all of these reasons the Greens believe it would be simpler and more appropriate to have a ban in drinking as well as dining areas while just allowing a small walled area designated for smoking. This is a broader concern about this section of the bill, and we also have some technical concerns relating to what the government has proposed. One area in particular where we believe the bill could be improved from a perspective of clarity of the legislation and the spirit of what we believe the government is intending relates to situations where venues have outdoor seating areas adjacent to one another. Currently there appears to be no provision in this bill for laws relating to outdoor dining and drinking areas in adjacent but separate premises, only within the same premises. We believe that this is a massive omission.
In section 4(3) our reading of this definition is that if a venue has an outdoor dining area on the footpath out the front of their premises and, for example, that dining area is right next to the seating for a venue that has designated its outdoor area as a drinking and smoking area—a pub, for example—there is no requirement for the 2.1-metre wall or a 4-metre buffer zone between these outdoor sitting areas. They are only required between drinking and dining areas within one venue, not between venues.
So if we think of Lygon Street, where cafe after cafe has outdoor dining areas side by side on the street front, if just one of these cafes decides to designate its outdoor area as a drinking and smoking area, then smoke drift could affect people sitting in the outdoor dining areas of both the neighbouring businesses. Businesses with outdoor drinking and smoking areas have no obligations to the other venues or their patrons, and those neighbouring businesses have no recourse under this law. This is massively inconsistent with the objectives within the venues and is illogical from a public health perspective. When I put this to the government in recent weeks, their response was, and I quote:
We expect businesses to work collaboratively when they are located close to each other; however, some businesses may choose to install a plastic cafe blind or screen to prevent smoke drift into an outdoor dining area from a nearby outdoor drinking area. Ultimately, any issue between adjoining businesses would need to be resolved between businesses.
I actually do not think that is good enough. We should not introduce legislation that causes disputes between neighbouring businesses; the government should introduce legislation to prevent and resolve disputes. To suggest that businesses will work it out between themselves is poor lawmaking at the best. Sometimes it might happen, but when it comes to the cost of installing a wall or keeping a 4-metre buffer, some businesses will try to avoid this and will accept impacting on neighbouring dining areas. Further, it fails to protect and give equal rights to the patrons of the dining venue.
We believe that this bill needs to be amended to add an obligation for adjacent venues to protect patrons in dining areas whether or not they are the same venue. We will be introducing amendments to this effect. I ask that the amendments now be distributed. Greens amendments circulated by Ms HARTLAND (WesternMetropolitan) pursuant to standing orders.
I should also add that one concern the Greens often have with such bills is that the state government expects enforcement by local council staff, yet they fail to provide funding to council to carry out this work. I will of course be asking further questions regarding this in the committee of the whole.
I will now move on to the second aspect of the bill, which is to create further laws regarding the regulation of e-cigarettes. The Greens believe that e-cigarettes need to be better regulated as a precautionary approach for a new product that risks being both harmful and addictive. We see the proposed laws as a step up from the existing situation, where there was no restriction on the sale, use or advertising of non-nicotine e-cigarettes. The Greens note that there is currently limited evidence regarding the health impacts of these cigarettes, and this is obviously because they are a new product. This makes them an even more difficult product to legislate for.
Some have pointed to relatively recent reports by Public Health England, which found that e-cigarettes are 95 per cent safer than conventional cigarettes, in order to campaign against these reforms and justify having few restrictions on e-cigarettes. Looking at the detail of the report—and I did read all of the report— you can see the findings are far more qualified than people are making out. Further, many other health experts have gone on to deeply criticise the findings of this report, primarily as the evidence base for it was not rigorous. For example, the ‘95 per cent safer’ figure was an idea of a panel of 12 assembled by the then Independent Scientific Committee on Drugs for a two-day workshop in London in July 2013. However, at least six of the members of the so-called independent panel were already established champions of e-cigarettes, and some of them have either been paid to do work by companies with an interest in tobacco dependence treatment or by e-cigarette companies. A panel discussion is not rigorous evidence, especially when issues of bias hang over it, so this is a flimsy basis on which Public Health England made the statement.
Further, the Public Health England report focused primarily on the impacts of e-cigarette use relative to cigarette smokers rather than the impact of e-cigarette use on non-smokers. This is another biased aspect of the report, considering there is mounting evidence in the UK that e-cigarettes are attracting non-smokers and young people to use them.
I note the point that MsWooldridge made around advertising in particular. I know that when she sent us those amendments and photos of e-kitty I was quite astounded that they are so obviously being directed at young people. The products are made to look attractive—very much as it was with cigarettes before we had plain packaging. Here in Australia we have to look at the full picture and the health impacts on all the population. With this in mind we believe that the mounting evidence regarding the harms of e-cigarettes as well as the problems in the industry warrants a precautionary approach to their availability and use. We are not talking about a ban on e-cigarettes, just restricted access until we know about their harms and how they impact on smoking rates.
We are concerned by the recent announcement by the Australian Competition and Consumer Commission that it has commenced separate proceedings in the Federal Court against two e-cigarette online retailers, alleging they have made false or misleading representations and engaged in misleading conduct by making statements on their websites and their e-cigarette products that they did not contain toxic chemicals. We are concerned that they found that e-cigarette products sold by Social-Lites and Elusion did in fact contain carcinogens and toxic chemicals found in conventional cigarettes, including formaldehyde, acetaldehyde and acrolein. While these are just two companies, it raises the potential that many other e-cigarette products also contain harmful carcinogens and toxic chemicals.
This is concerning, as there appears to be limited consumer awareness of this and little evidence regarding what harmful effects these carcinogens might have in the long term. Further, research by the New South Wales health department also found up to 70 per cent of e-cigarette inserts contain nicotine, despite claims to the contrary and laws prohibiting this in Australia. People using e-cigarettes deserve to know the facts about what is in the products. Those using them to attempt to quit smoking in particular should not be misled about their addictive contents, such as nicotine. Clearly this industry needs to be better regulated, so I hope the government will be investing resources in this area so that it can crack down on those retailers and brands doing the wrong thing.
Some—and I have received many emails—have suggested that e-cigarettes can be used as a smoking cessation device. The Greens support subjecting e-cigarettes and liquid products to consideration by the Australian Therapeutic Goods Administration (TGA) for supply as a properly regulated therapeutic device and product for the cessation of smoking. On the point about the large volume of emails I had, I note that we sent what I considered to be quite a detailed email back to people about our position, and I would like to read out small parts of one email that characterises a number of emails I received. Whoever was organising the campaign I think really needs to hone up on their lobbying skills. This was one of the responses I had:
So because of limited information you would choose to risk lives? Smoking kills more people than anything else in the world, and now that there’s an effective and enjoyable method of cessation the Greens would rather place restrictions on its availability because of a heavily conservative outlook— I have never heard that we were conservative— (or perhaps you are motivated by money). I suspect that means someone thinks the Greens are taking money from big tobacco, which is clearly not true. It goes on: Either way, shame on you. Regardless of the unproven safety of electronic cigarettes they have proven to be effective as a quitting aid. As mentioned earlier, smoking kills more people than anything in existence. It doesn’t take a genius to realise that anything that helps the act of quitting conventional cigarettes is a step in the right direction. Thanks for the genetic response. We, the vapers, a 100 00 person-strong demographic, will never be voting for the Greens again.
The Greens do not take threats lightly. Accusing us of taking money or saying you are not going to vote for us because we do not agree with you shows I think that whoever is organising the campaign really needs to talk to their people.
On the issue of cessation of smoking, I note that my mother smoked from the time she was 12 until she died from lung cancer at 60. If I thought for a second that this method had real scientific reason to believe that it helped people stop smoking, I would be there. But I do not have any evidence of that. If these devices are approved, then the conditions regarding the sale, packaging and otherwise set by the regulator for use as a cessation device should be adhered to, and access for that purpose should be facilitated in our community in the way that nicotine
replacement therapy is. Having an e-cigarette approved through the TGA is the best approach for those who want to use it as a cessation device. That way consumers can be assured the product is not harmful—that it indeed is safe in quantity and an effective product as a quitting aid.
The other reason we believe a precautionary approach is required is that we do not know enough about e-cigarettes and their relationship to smoking cigarettes. There is some emerging evidence in this area that it is a worry from a health perspective, but more needs to be done. E-cigarettes are being used in many public places where smoking is not allowed, creating confusion and exposing young people to products that mimic tobacco smoking, which I think is extremely unfortunate. In other countries e-cigarettes are being marketed heavily. Research just released by the Cancer Council Australia indicates that such advertising stimulates many smokers who have quit to again crave cigarettes because of the similarities to smoking in appearance and action. While a more comprehensive research base can be established, we think it is appropriate to take a precautionary approach by restricting advertising, displays and public spaces where people can vape to prevent a reversal of the gains in relation to smoking and nicotine addiction.
A big concern for the Greens in relation to e-cigarettes is that they have the potential to attract a younger audience to take up vaping, which of course can lead to smoking as well. Like alcopops, they often come in sweet and flavoured products, despite flavours being banned for cigarettes. They can also come in colourful packaging that appeals to young people. At times these flavoured inserts come without nicotine, which enables them to be used as a smoking cessation device. I assume it is for this reason that the government has chosen not to have the flavours and sugars prohibited. However, given so many products claiming to be nicotine-free have been found to have some nicotine in them, there is an issue of consumer safety here that desperately needs to be addressed. It is because of the gateway potential that we support controls on e-cigarettes for young people under the age of 18, but the issue of packaging targeting young people remains.
The Greens understand there are proposed amendments to the bill, and I thank MsWooldridge for bringing those forward. We will be supporting those. I also want to say very clearly that the Greens feel e-cigarette products need much more research, consideration and monitoring. We would not want to see a set-and-forget approach to e-cigarettes, given the great uncertainties in science, health impacts and social impacts. We think monitoring is required to see whether these e-cigarettes can offer some health benefits over smoking cigarettes. I think this potential is yet to be adequately researched and will become an area of greater interest if e-cigarettes take off in popularity.
I just want to add to this that when I spoke to Quit this week, they supplied me with a list of major tobacco companies that have taken over e-cigarette companies. I would just like to read these into the record. In December 2012 British American Tobacco acquired CN Creative, a start-up that developed the initial e-cigarette and ECOpure liquid brands. It went on to launch the Vype brand in August 2013. Vype is now marketed by Nicoventures, a British American Tobacco subsidy. Lorillard, the third-largest cigarette manufacturer in the US, acquired the e-cigarette company BluCigs for a reported $135 million in 2012. It also acquired Skycig, a leading brand of e-cigarettes in Britain, for $48.5 million, allowing it to enter the UK market. Skycig then became Bluecigs in 2014, with the support of a million-dollar marketing campaign.
When R. J. Reynolds acquired Lorillard in 2014, Imperial Tobacco purchased its Blu line to avoid anti-trust concerns that R. J. Reynolds owning both Vuse and Blu would give it an unfair advantage in the market. Japan Tobacco International acquired UK e-cigarette brand E-lites in June 2014 from the previous owner. Japan Tobacco International also invested in start-up Ploom in 2011 and agreed to commercialise its vaporisers outside the USA. In February 2015 Japan Tobacco International acquired the patents and trademarks from Ploom, allowing it to develop new products and markets. And the list goes on and on and on. Philip Morris International announced in December 2013 that it was joining with Altria to market e-cigarettes and other reduced-risk tobacco products. Philip Morris gained the right to exclusively sell Altria’s e-cigarettes outside the US. In 2014 Philip Morris acquired the UK-based Nicocigs, the owner of the Nicolites brand, claiming it would provide the company with an immediate entry into the UK market for these and other e-cigarette products. From that list I think it is pretty clear that he major tobacco companies are moving in on e-cigarettes pretty quickly.
On the issue of water pipes, this is the one area of disappointment we have with this bill and the fact that the government is not prepared to deal with this issue. At the moment the laws are such that water pipes are permitted to be smoked indoors using flavoured tobacco. This is highly inconsistent with our smoking laws, especially given that the volume of nicotine and harmful substances consumed in one water pipe session is hundreds of times greater than that of a cigarette. Many in the Arabic-speaking community believe water pipes should be subjected to the same laws as e-cigarettes so this community is not denied the same health benefits from smoking reform as the wider community.
I have been provided with a copy of a letter signed by the Australian Lebanese Medical Association, the Australian Iraqi Council Victoria, the Afghan Australian Association of Victoria, the Pakistan medical community, Arabic Welfare, the Hellenic Medical Society of Australia and the Iraqi Caledonian Association of Victoria. As Ms Wooldridge has already read out this very good letter I do not intend to do so. But one of the really good things about having this letter and being able to talk to Dr Wally Ahmar was that, as a cardiologist, he was able to explain to me in great detail the kinds of harm that water pipes are causing. So I am really surprised that the government felt that it was all right to leave water pipes out of this legislation, given that there is such good support from a number of community organisations and organisations representing medical doctors from those particular communities.
While I am sure this will not be welcomed by all, like all tobacco reform it is the government’s responsibility to act in the interests of public health when there is such a dangerous product. The Greens will seek to amend this bill to ensure that water pipes are subject to the same law as cigarettes. The amendments are all inclusive.
In conclusion the Greens will be supporting this bill as it is an improvement on the restrictions on smoking and e-cigarettes. However, as I have already outlined, we are quite disappointed that the government has missed an excellent opportunity to deal with the issue of smoking in outdoor drinking areas and also with the issue of water pipes.