The High Court decision to reject Big Tobacco’s case against plain packaging was not a surprise – but it was nonetheless a stunning victory for the government and for public health. But there is still much work ahead, so where next?

Plain packaging is the tobacco industry’s worst defeat and worst nightmare. The pack, so crucial to its marketing, has changed from a glossy fashion accessory to an ugly container, designed to be as repellent as possible. Small wonder that tobacco companies have opposed the measure so ferociously, or that other countries waiting for the Australian judgement are now likely to follow.

The tobacco industry’s response has been limited to expressing disappointment, mutterings about unintended consequences such as “criminal gangs”, and threats to take action through international trade fora. These stand about as much chance of success as the case heard in the High Court, and in any case, they cannot prevent the introduction of plain packaging from 1 December.

Moves and counter-moves

We can now expect tobacco companies to try to undermine plain packaging, as they do all other effective tobacco control measures. Their activities will include promotion from overseas, for example, through films and the internet. They will lobby to prevent further action such as taxation, public education and measures to protect non-smokers.

They will continue to spend big on public relations; use loopholes in the advertising ban legislation (such as for “political” advertising); try to develop further in-store promotions; ensure the maximum number of sales outlets; re-name brands for further publicity; reduce prices in the short term, willing to take a loss in Australia to undercut plain packaging’s impact here and globally; claim that plain packaging has “failed” if all smoking has not disappeared by 2 December; beat up such illicit sales as they can find or generate; promote alternatives to conventional cigarettes that may still keep the industry in business and ultimately help to keep people smoking, such as e-cigarettes or snus; try to make the life of governments difficult with time-consuming activities like FOI requests; run sob-stories about retailers who can’t feed their children because cigarette sales are falling; and (as ever) look for creative ways to promote or maintain cigarette sales in what their own documents describe as the “dark market”.

We must be vigilant to ensure that we curb all their promotional activities and maintain our own efforts. Plain packaging will be a hammer-blow for the industry, but it is not a magic bullet. It is part of a comprehensive approach and must be complemented with continuing action at both federal and state level.

There has been much discussion in the tobacco control literature and the community about a range of approaches. These include:

• Extending restrictions on smoking in any environment so that it essentially becomes a practice only for consenting adults in private.

• Reducing the supply of tobacco in the market.

• Licensing schemes for smokers.

• Restricting cigarette sales to specific outlets, such as pharmacies.

• A government take-over of the tobacco industry.

• Banning tobacco sales to anyone born beyond a specific year.

• Manipulating the cigarette itself.

• Mandating reduced supply of tobacco into the market.

• Proper implementation of legislation banning sales to minors – and progressively reducing the number of tobacco sales outlets.

• Suing tobacco companies for the costs of harm caused by their products.

• Setting a date by which tobacco companies have to demonstrate that their products meet normal consumer standards. After that date cigarettes would simply not be permitted in the market.

• Progressively reducing the number of sales outlets.

All these ideas and others have passionate adherents, and most are worth considering over time as long as we don’t forget to do the things we know work, such as tax increases and strong mass media campaigns.

But should we go beyond these and ban smoking altogether?

Total ban

There may well be a time, possibly within a decade, when cigarettes are no longer sold from standard commercial sales outlets, or when (one of my preferred options) the number of sales outlets is severely limited.

A complete ban on smoking now, however, is neither realistic nor good health policy. Some of the reasons tobacco control campaigns have been successful are that they are science-based, evidence-based, realistic and amenable to implementation.

Despite punitive legislation and massive funding (far greater than that we devote to reducing smoking), we have not been able to get rid of illicit drug use completely. It is one thing to protect non-smokers from the harms of passive smoking, but banning someone from engaging in an activity in private falls into a different category.

We have to recognise that some smokers find it hard to quit, and a complete ban on smoking is a measure that could lead to legitimate counter-arguments. Proposals for a total ban on smoking would provide justification for hitherto unsubstantiated claims from tobacco companies and their fellow-travellers that tobacco control advocates are penalising and persecuting smokers, when the reality is that our activities are aimed at helping them, and preventing young people from starting to smoke.

We should undoubtedly be as hard as possible on an evil and lethal industry and its leaders who are knowingly trying to increase sales of a product that kills when used as intended. We should look for new approaches to curbing cigarette sales and discouraging smoking. We should maintain and increase our efforts, especially in areas where there is clear evidence of impact. And we should do all we can to expose and curb the tobacco holocaust facing developing countries as the tobacco industry focuses on promoting smoking there.

We should do everything necessary to protect non-smokers and we can reasonably aim to end the commercial sales of cigarettes. Then we should not need to worry about a blanket ban on smoking.

Read the argument for banning cigarettes