Generation Next Blog
Is it time to sue the alcohol companies?
ALCOHOL PROMOTION TARGETING YOUNG PEOPLE — IS IT TIME TO SUE THE ALCOHOL INDUSTRY?
Thank you for the invitation to speak here today.
I want to present a non-lawyer’s perspective – so this will not be an analysis of legal issues, but a discussion of some broad considerations.
These are momentous times for public health. Despite all the obstacles, all the technical, political and legal delays, and despite ferocious opposition from the world’s most lethal and evil industry, in six weeks’ time Australia will be the first nation in the world to require plain packaging for tobacco products.
“Plain Packaging” is of course an understatement. The packs will be far from plain. They will be ugly, with 90% of one face and 75% of the other devoted to graphic warnings, on a research-based backcloth of a colour we know to be least attractive to potential smokers, and the companies will be allowed only the pack brand name in a prescribed font. This is part of a comprehensive approach aimed at accelerating the decline in smoking, and will have an impact on both children and adults.
So far, so good. A success by any standards for public health. And yet, this has occurred nearly 63 years after we had clear, indisputable evidence demonstrating that cigarettes were lethal. Since then, over one million Australians have died because they smoked. While the current trends are encouraging, there is still some way to go – and we might ask ourselves why it has all taken so long, and why this evil industry is still peddling its wares here and overseas, particularly in developing countries?
The answer is that action to reduce smoking has occurred against a constant background (and sometimes foreground) of opposition, denial and delay from the global tobacco industry.
Regardless of the tobacco industry’s standing as the worlds’ least reputable industry it has continued to use every possible mechanism to obstruct action that might reduce smoking and thereby improve public health; it has continued to target vulnerable markets; and even now around the world this almost unbelievably evil industry sells some 6 trillion cigarettes a year, causing more than 5 million deaths a year – and as markets in developed countries slowly – all too slowly – decline, it is stepping up its efforts in the developing world.
Tobacco and alcohol are of course different – and as I have observed elsewhere, I occasionally get weary of people who patronisingly tell me this, as though it were a novel discovery. Nonetheless, there are many similarities, and there is much that we can learn in relation to alcohol from the developments that have over time led to strong action on smoking.
One of the similarities is that the two industries are very closely linked – often indeed, overseen by the same people. As one example, for more than 30 years the Philip Morris company owned one of the worlds’ largest alcohol companies – Miller Brewing. Even now, Altria (the Philip Morris parent company) owns some 27% of SAB Miller Brewing (which in turn owns Fosters and Carlton United Brewing here in Australia). Altria/Philip Morris is well represented on the Miller Brewing Board – including the former Chairman and Chief Executive of Philip Morris, Geoffrey Bible who presided over the Philip Morris company over many years during which that company would have been responsible for millions of its customers’ deaths. This is but one example: the two industries are linked across various other companies, and there is clear evidence from once-confidential tobacco industry documents that the industries have worked together and learned from each other. And the linkages continue across industry organisations – for example, both the Australian Hotels Association and the Australian Liquor Stores Association are directly sponsored and associated with the global British American Tobacco company.
And here we see how both industries behave behind closed doors. This is from a previously confidential speech we obtained through tobacco documents – from the 80s, but there is no reason to believe that they think any differently now. Note too that this is from the Chairman and CEO of the Philip Morris company at a time when they owned not only one of the world’s largest tobacco businesses, but also in Miller Brewing one of the world’s biggest alcohol companies.
“Many of the threats to us, P.M. (Philip Morris), arise from concerns which have lost touch with common sense and reality. People (and politicians) to need causes, and in a world which is generally more peaceful and affluent than ever before, there’s a shortage of big causes. That’s why we hear so much about really rather little causes: smoking, drinking, dietary hazards……” (Hamish Maxwell, Chairman and CEO, Philip Morris, Washington DC, September 8, 1986)
(and here is how another company executive reportedly spoke even more frankly….)
“We don’t smoke that shit. We just reserve the right to sell it to the poor, the black, the stupid” (R. J. Reynolds executive)
There are various reasons for the battering that the tobacco industry has taken in public opinion – which in turn has helped to lead politicians to act on smoking. One of course is the lethal nature of the product. An important factor, however, in both constraining the activities of tobacco companies and impacting on its reputation has been the steady stream of legal actions taken against tobacco companies on a variety of grounds.
Tobacco companies have deep pockets and can afford as many expensive lawyers as it takes. At least partially for this reason, they have been able to fight off much of the legal action brought against them. Nonetheless, even where they have not lost, the publicity surrounding the actions and matters brought up in them has contributed to the industry’s loss of reputation.
Cases have been brought against tobacco companies either by individual smokers or in class actions. Such cases are difficult to bring and win (so much to prove, so complex, so difficult to demonstrate causality in individual cases where there may be – or may be alleged to be – other factors, so hard when smokers have died or are dying or they and their families can be caused further grief by tobacco company activities) – but even despite that, some have succeeded overseas, with substantial payouts, and concomitant negative publicity for the industry.
Tobacco companies have also been subject to successful actions around the world by relevant authorities for a range of offenses ranging from smuggling to racketeering.
But perhaps the most significant area in which legal action has been taken against tobacco companies is litigation by governments, particularly action now known as the Tobacco Master Settlement Agreement (MSA) of 1998 in which the Attorneys General of most of the states in the US settled lawsuits against the tobacco industry for recovery of healthcare costs caused by smoking – in response for specific commitments from tobacco companies. These included massive payments to the states (over $200 billion), some specific commitments in areas such as tobacco marketing, and, crucially, agreement from the tobacco companies to make available tens of millions of previously-confidential documents.
The reputation of tobacco companies suffered a further hammer-blow. Billions of dollars did indeed move across to the states – but it may indeed be that the single most important achievement was the MSA’s outcome that those tens of millions of internal documents had to be made available.
These documents go back decades. They cover all the major companies operating in the US (with much documentation relating to countries outside the US, such as Australia). They demonstrate beyond doubt that tobacco companies were guilty of everything we thought – and much more: they knew the evidence, they understood it, they marketed to children and other vulnerable groups, they paid enormous sums to politicians, researchers, anybody they could find who might help them, they lied, they deceived.
Publications from these documents continue to this day, as more gold is mined, and continues to demonstrate how nasty this industry is – all the while providing as much evidence as we could need to justify action. To take only one example, the case for tobacco plain packaging has been greatly strengthened by previously confidential tobacco industry documents, available through the MSA, showing how important packaging is to tobacco companies, and that even their own research demonstrates this in relation to both children and adults.
And so to alcohol.
As with tobacco, the problem is manifest. It is not that one problem is greater than the other: tobacco kills more people, alcohol causes more social problems. Both are massive community problems requiring community action – both are promoted by major industries which do everything they can to prevent action that might be effective.
The problems caused by alcohol are probably still not fully understood by the community.
There is awareness of immediate consequences (for example when there is violence in Kings Cross), but not of the sheer breadth of the problem. There is far from adequate understanding of the short term health consequences of risky drinking; longer term health consequences of harmful drinking; the social consequences; criminal and law enforcement consequences; drinking amongst children and young people; violence, domestic violence – and so on. And for all of these, there are clear and direct costs.
There are costs to individuals, to families and to communities arising from the harms and the tragedies. There are – as with tobacco – massive costs quite specifically to our state (and national) governments that have to address and pay for treatment for short-and longer term health consequences; policing and law enforcement – one Police Commissioner has estimated that 70% of the operational budget of the Police service goes to addressing problems caused by alcohol; social services; services for people with alcohol problems; and a range of other burdens on governments.
There is nothing new about problems caused by alcohol – as far back as the Old Testament, Noah is reported as having behaved inappropriately because of too much alcohol – and there is of course a history throughout the centuries and decades of drinking inappropriately. But I believe that in this era, some problems related to alcohol are of a different nature.
There appears to be an increasing acceptance that alcohol problems are part of our community.
We are seeing increasing levels of violence and antisocial behaviour related to alcohol.
Use of alcohol has become more widespread and acceptable over time for children and young people. Children are drinking younger, and there is a culture of drinking to get drunk amongst many. Many children and young people of course do not drink – but those who drink, drink more and wreak more havoc.
By contrast, we have more evidence than ever before about the dangers of alcohol – not only immediate, but the longer term harms to children and young people (for example in relation to the developing brain).
Also by contrast, we know more than ever about the action that can contain and reduce alcohol problems – but despite the political rhetoric, little of this actually occurs.
Problems related to alcohol are developing globally in ways that should be cause for major concern.
Alcohol is more widely promoted than ever before – in developed countries, in developing countries, to adults and young people, and with exposure to vast numbers of non-drinkers, including children. There is vastly more exposure of children and young people to alcohol promotion, including in my view advertising and promotional campaigns that clearly target young people. There are even products designed, developed, packaged and promoted to appeal to the young. The industry’s cynicism was revealed by internal industry marketing documents obtained two or three years ago by a British House of Commons Select Committee: one of these quoted a marketing executive speaking about young people and alcohol with the memorable phrase “They’ll drink bucket loads”. That is hardly surprising – the underage alcohol market brings in substantial profits for the industry – conservatively estimated as far back as 2005 at around $111 million.
And quite simply put, all this promotion and exposure normalises alcohol use for children and young people. The industry self-regulation codes are limited, ineffective and toothless, which is why we and other groups have recently established the Alcohol Advertising Review Board to provide an independent approach to setting standards and identifying breaches.
The alcohol industry has become ever-more adept at countering threats to its sales, and at working in a coordinated manner globally, rather than country-by-country; despite internal competition, the industry undoubtedly coordinates its promotional, lobbying and other activities globally better than ever before. It also has a long record of action to downplay health and other consequences of alcohol use, and to promote its own soft education and other activities in place of those that might have some real impact.
Its purposes were, however, clearly identified in this recent comment from a senior alcohol industry executive:
“We understand beer has been declining for a couple of years now, as is alcohol with its per capita consumption. I think the first thing is we need to find ways to work harder to make people drink more and drink at higher value…”
Peter Filipovic, CUB, Sales Director, The Shout, September 2012
The alcohol industry is clearly subject to much legislation – from licensing to taxation, some with clear legal implications if the industry or its component parts contravene this legislation.
And yet, this legislation is primarily about providing a framework within which the industry can operate, not generally seeking to constrain its activities.
Whatever we have, it is not sufficient to prevent the massive alcohol-related problems we currently see in Australia and elsewhere.
As I have indicated above, we know so much more needs to be done in relation to alcohol. Those who argue for action on alcohol do not seek to ban alcohol, to end all sensible use, or indeed to seek the end of civilisation as we know it. We do, however, seek a comprehensive approach to action on alcohol. The aim of health and other organisations in this area is to ensure as much as possible that alcohol use is sensible, informed, by those for whom it is appropriate and that it occurs without causing damage to either the drinker of those around them.
There is an enormous literature demonstrating what such a program should include. This was well summarised in the recent report of the National Preventative Health Taskforce –
- Improve the safety of people who drink and those around them.
- Increase public awareness and reshape attitudes to promote a safer drinking culture in Australia.
- Regulate alcohol promotion/
- Reform alcohol taxation and pricing arrangements to discourage harmful drinking.
- Improve the health of indigenous Australians.
- Strengthen, skill and support primary health care to help people make healthy choices.
- Build healthy children and families.
- Strengthen the evidence base.
There is no magic bullet. There is no single “solution” to the problem. But there are always arguments to be adduced against anything (especially by the alcohol industry). And there are those who demand proof positive of anything even before it has been tried for the first time.
(One of my favourite ******s shows a poster on display at a rally of health researchers. It says, “What do we want? Evidence-based policy? When do we want it? After peer review”. That is the light-hearted approach: the more worrying approach is that we get from alcohol and tobacco industry interests, who argue that nothing should ever be done until there is proof positive from experience of implementation that it will work – hence nothing should ever be done for the first time.
But the fact remains: there is a mountain of evidence in relation about what works and what does not work. We know what to do.
My purpose today is not to describe the extent of the alcohol problems we face. But I will remind you that there is massive evidence on the impacts of alcohol on our community. It is a health problem, a social problem, an economic problem, a law enforcement problem, a cultural problem…. It is a cause of death, injury, violence, domestic violence, child abuse, other crime, workplace losses, road crashes. It is a cause of harm both short term and long term, to those who drink and all too many others.
Up to 70% of all police responses are alcohol-related – more at certain times of day and night.
Alcohol affects people other than the drinker – over 42% of adult Australians reported being either verbally or physically abused or put in fear in the previous year by somebody under the influence of alcohol.
Alcohol consumption causes over 5000 deaths and 80,000 hospitalisations in Australia every year. It is a major cause of various conditions and diseases that people may often not associate with alcohol, such as cancer.
My particular concern is in relation to alcohol and young people. There is overwhelming evidence again that alcohol is the cause of significant harm among young people. One in five Australians aged 14 or more drink at short term risky or high risk levels at least once a month
And our children and young people are drinking younger, and drinking to get drunk. We need to emphasise over and again that young people should not be demonised. So many do the right thing.
But surveys of young people and those who drink show that 43% of 16-17 year olds say they drink to get drunk; two-thirds of 16-17 year olds think that “it is okay to get drunk occasionally”.
80% of alcohol consumed by young people aged between 16-24 is consumed at levels that puts them or others at acute risk of acute harm.
Over the past 10 years, about 15% of all deaths among 15-24 year olds were due to risky or high risk drinking.
And increasingly, there is evidence that – as advised by the NHMRC – for young people it is best not to drink under the age of 18.
So we have a problem. We know what to do. We see more and more headlines, front pages, shock and horror and concern expressed by politicians. Yet whatever we’re doing isn’t good enough. We are getting lip service and superficial action – even if that. Simply put, we have action that suits the drinks industry, not the community.
Why is this?
As with tobacco, there is an immensely powerful global industry opposing effective action. That is its role. That is what the company’s shareholders seek from them.
The alcohol industry is both massive and massively powerful. There are major companies, producers, retailers, supermarket chains that sell alcohol and many other supporters of associated industry. Together, they use all the apparatus of power and influence, from direct advertising to public relations and lobbying, and much activity that we probably don’t even know about.
Their role – their duty to their shareholders – is to sell as much as possible, to whoever will buy the product – adults, young people, people in developed countries, people in developing countries. We hear expressions of “corporate social responsibility” from the companies and those who support them – but the actions they support and implement are almost invariably ineffective - presented as alternatives to the action that will achieve outcomes, which they oppose vehemently.
The companies have also been adept at engaging support from those who profit either directly or indirectly from their products – from retailers and retail groups to recipients of sponsorship and other largesse, such as sports and arts organisations.
The world of alcohol in 2012 is not one where a few people drink a few beers in a few pubs owned by locals. This is a world where the alcohol industry in a country like Australia is almost entirely controlled by global companies, based outside Australia; and it is also a world where the vast majority of sales outlets are owned by a relatively small number of large groups.
These are the organisations that promote alcohol sales and oppose action that will reduce the harms.
I have made the case elsewhere that – even recognising the differences between the products – many of the alcohol industry interests are every bit as cynical and ultimately lethal as their tobacco counterparts. They develop, package and promote products such that they will be attractive to young people, including children. They promote their products knowing that children will be massively exposed to their advertising and promotion, linking alcohol with all that is best in sport and music amongst those idolised by children and young people.
Amazingly, given the harms caused by drink-driving, they even associate alcohol with fast cars. They price products in such a manner that they will be attractive to people with alcohol problems and young people. They promote in media that will appeal to young people – from Jim Beam on Campus to Facebook – even recently exposed, Jim Beam Racing clothing for children. In full awareness of the evidence on FASD, they promote products directly to women of childbearing age. They seek ever increasing numbers of sales outlets, often in places where the presence of alcohol sales outlets normalises alcohol for young people – and they use legal processes to make life difficult for those who oppose this approach.
They oppose action that might be effective: you name it, they oppose it:
- Proper curbs on alcohol promotion.
- Reform of the tax system so that we cannot buy alcohol cheaper than bottled water.
- Curbs on the ever-increasing numbers of sales outlets – often in places where the presence of alcohol sales outlets normalises drinking for young people.
- Legislation that might prevent secondary supply to children, or introduce controlled purchase to make life difficult for people selling alcohol illegally to kids.
- Effective warning labels that might have an impact – and so on….
So back to tobacco. Tobacco is a massive cause in health problems and costs – as is alcohol.
For tobacco we know the actions needed, as we do with alcohol.
Tobacco causes harm to non-users – as does alcohol (which perhaps causes even more – both health and social costs).
So what has made the difference?
Why are we seeing so much more progress in tobacco?
- Advocacy – especially by medical/health groups.
- Focus by these groups on key areas of action – with a consensus approach.
- Recognition of the need for a comprehensive approach.
- Growing public awareness – that this is a lethal industry.
- This industry then losing credibility by the day.
- Determination by health groups to engender action on tobacco as a high priority – and by some politicians that this action should occur.
But a crucial factor in enabling health groups to press for action has been the impact of litigation against tobacco companies.
The most important thus far has been the Master Settlement Agreement.
Why has this been?
- The case pitted the alcohol industry not against individuals, or even groups, but against the full resources of government.
- It showed that governments were absolutely determined to act, and would not be bullied or lobbied out of it.
- The industry lost – which itself encouraged further action.
- The documents made available as a result of this legal action – once confidential – showed beyond doubt that everything we had always thought about the industry was true and more: all our cynicism was justified. And the more we see of these documents the more we find that they are a gift that keeps giving in terms of information about the sheer nastiness of the tobacco industry.
Alcohol may be little different at base from tobacco.
The case is similar – maybe better, given that we have known for so long about problems caused by alcohol, and the magnitude and costs of the problems caused by alcohol extend so far beyond the health arena and the health of the individual.
The argument is not (as it is with tobacco) that we want to get rid of a lethal and evil industry. But it is that this industry, like the tobacco industry, must be held to account – and that governments and others must take all possible action to protect the community, consumers and children.
The alcohol companies seek to do many of the things that tobacco companies have sought to do.
They promote their products to young people. They encourage inappropriate use. They develop, package and promote products that will encourage inappropriate use – and use by young people. They oppose and undermine efforts to reduce problems arising from use of their product.
The reality of 2012 is that simply pressing for action in traditional ways will not get results. We will get some progress on a tortuously slow basis, but this global industry has endless patience, deep pockets, and a global strategy.
So is it time to sue the alcohol industry?
I am not talking here about action taken against individual hotel owners or bottle shop staff who commit breaches of licencing and related legislation. I do not want to be seen as attacking or demonising people who are doing a decent job to the best of their ability. I am talking about action that will hold this massive national and international industry to account for the human damage and economic costs faced by society. By the industry in this context I mean primarily the major global companies that dominate our market (as so many others).
As we have learned with tobacco, individual actions or class actions face innumerable difficulties. Legal action is hard for individuals and even groups, not least because of the issues around demonstrating causation, but even more because the industry has such deep pockets.
But there is and should be a public interest in litigation against the alcohol industry – both to hold them to account, and to recover some of the costs we face as a community.
While there has not been similar litigation in this country in relation to tobacco, this is in part because ironically programs to reduce the harms of smoking have been more effective than for alcohol – governments and health groups have not been motivated to prioritise this form of action. Further, while the broader economic costs of tobacco extend of course well beyond the health system, some of the harms caused by alcohol are more immediately evident (road crashes and violence as against lung cancer) and the costs of alcohol in areas outside health (such as Police) are more obvious.
Health care costs, policing costs and all the rest: a reasonable recent estimate is that the overall economic costs of alcohol to Australia are around 36 billion dollars a year.
Litigation takes time, especially in this sort of context, requires persistence, and is expensive.
At the end of the day, governments are the only sector likely to have the time, patience and money to take on the major alcohol interests.
But at the end of the day too, governments at federal and state levels are subject to greater costs than any other group in the community – incurred because of alcohol and its impacts.
These costs are far greater than the annual tax take from alcohol.
It would be foolish to suggest that the alcohol industry should be held to account for all the damage people cause to themselves or others because of inappropriate use of their product. There are many other factors involved – and where individuals transgress they should of course bear responsibility.
But every government in Australia is subject to massive costs because of harms caused by alcohol. Every government in Australia has to fund hospital and health care costs, emergency department costs, treatment and care costs, road trauma, counselling and other services, welfare costs, community services costs, policing costs, other aspects of law enforcement costs – and much more.
Our emergency departments – especially on Friday and Saturday nights – are filled to overflowing with people who would not be there but for alcohol. As I have already noted, the WA Police Commissioner is on record as noting that some 70% of the police operational budget goes to addressing problems caused by alcohol.
The alcohol companies are, as I have noted, of course not solely to blame for this.
But the alcohol industry has a record going back over decades of:
- Massive promotion of its product, with exposure to not only adults but also young people and children.
- Downplaying evidence on the harms of alcohol.
- Opposing virtually any measures that will be effective in reducing alcohol problems in our community.
Should this industry, then, not be held to account?
Should governments not seek to recover a least some of the costs incurred because of either action by these companies in promoting their products or inaction as a result of their opposition to measures that might be effective?
What costs should governments seek to recover? Given the industry’s history of both promoting use and opposing action that would reduce the harms, I would propose at least initially focusing on a proportion of the costs entailed in:
- Alcohol-related road trauma
- Other alcohol-related hospitalisations
- Alcohol treatment services
- Police and justice system activity
- Welfare costs related to alcohol.
Should we not recognise that there is an impact to the tsunami of alcohol promotion to which our children and young people are exposed; and that both the short- and longer-term consequences will bring both terrible social and economic costs with them?
The precedent from tobacco is encouraging. Once a substantial group of Attorneys General, representing their states, got together with determination, taking on the tobacco industry to recover costs to their jurisdictions because of the harms of smoking, the tobacco companies settled. The industry was held to account. The massive costs of tobacco were recognised; and the industry agreed to pay those jurisdictions billions of dollars.
Further, as a result of the litigation the tobacco industry agreed to make available tens of millions of documents – previously confidential – that provided yet further evidence of their ruthless and cynical approach over the years.
Litigation of this kind might also provide the resources with which governments could mount the kind of strong and effective public education programs that can play an impact in reducing the harms of alcohol at all levels in the community.
It should be recognised too that the primary focus of such litigation here would not – as might have been the case in bygone eras – be an industry comprised of Australian icons, but companies that are owned and controlled from overseas, whether the US, UK, Europe or Japan. They Australian icons are no longer Australian-owned – they are all owned and controlled from overseas.
As a public health advocate concerned to reduce the harms of alcohol and also to assist governments in ensuring that there are adequate resources to address problems caused by alcohol, I believe we should now be asking the question: is it time for the governments of Australia to sue the alcohol industry, in much the same way as tobacco companies have been successfully sued overseas?
Governments should seek to recover costs they incur as a direct result of harm caused by these companies’ products – at a time, as I have to keep stressing, when the companies promote inappropriately and oppose action that might reduce the harms and minimise the costs. The industry should be forced to reveal material about its activities in the same way that tobacco companies have had to do. And we, the community, are surely entitled to some recompense for the massive damage these companies can be seen as causing through their activities.
Mike Daube, Sydney, October 19, 2012