MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS ----------- TRAN NGOC LINH THIEN TOBACCO ADVERTISING AND PACKAGING UNDER AUSTRALIAN AND VIETNAMESE LEGISLATIONS – COMPARATIVE AND PRACTICAL PERSPECTIVES BACHELOR THESIS COMMERCIAL LAW MAJOR HO CHI MINH CITY – 2014 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS ----------- BACHELOR THESIS TOBACCO ADVERTISING AND PACKAGING UNDER AUSTRALIAN AND VIETNAMESE LEGISLATIONS – COMPARATIVE AND PRACTICAL PERSPECTIVES STUDENT: TRAN NGOC LINH THIEN CLASS: CLC35 STUDENT CODE: 1055010250 PROPOSED SUPERVISOR: DR. TRAN HOANG NGA HO CHI MINH CITY – 2014 I hereby declare that this thesis is my own work under the guidance of the supervisor. Where other sources of information have been used, they are duly acknowledged in the text and the list of references. Ho Chi Minh City, July 2014 Trần Ngọc Linh Thiện LIST OF ABBREVIATIONS ACCC The Australian Competition and Consumer Commission ACMA The Australian Communications and Media Authority AWOTE The Average Weekly Ordinary Time Earnings BIT bilateral investment treaties COP The Conference of the Parties of FCTC CPI Consumer Price Index FCTC The WHO Framework Convention on Tobacco Control GST Goods and Service Tax PMA Philip Morris Asia VAT Value Added Tax VINACOSH The Viet Nam Steering Committee on Smoking and Health WHO The World Health Organization TABLE OF CONTENTS LIST OF ABBREVIATIONS INTRODUCTION.
1 CHAPTER 1: OVERVIEW OF TOBACCO CONTROL AND REGULATIONS ON TOBACCO CONTROL IN AUSTRALIA AND VIETNAM .1 Overview of tobacco control .1 The necessary of tobacco control .1 Tobacco as a risk factor to health, social and economic costs .2 The global strategies of tobacco industry as a threat to public health worldwide .2 Role of WHO and FCTC on tobacco control .1 Role of WHO on tobacco control .2 Role of FCTC on tobacco control .2 Overview of regulations on tobacco control in Australia and Vietnam .1 A brief history of regulations on tobacco control in Australia and Vietnam .2 The meanings of FCTC for Australian and Vietnamese regulations on tobacco control .3 Main provisions of current regulations on tobacco control in Australia and Vietnam .1 National Tobacco Strategy.2 Measures relating to the reduction of demand for tobacco: Price and tax measures.3 Measures relating to the reduction of demand for tobacco: non-price measures.4 Measures relating to the reduction of the supply of tobacco. 22 Summary of Chapter 1. 24 CHAPTER 2: TOBACCO ADVERTISING AND PACKAGING UNDER AUSTRALIAN AND VIETNAMESE LEGISLATIONS - IMPLICATIONS FOR VIETNAM .1 Tobacco advertising under Australian and Vietnamese legislations .1 Regulations on tobacco advertising under Australian and Vietnamese legislations .1 Definition of tobacco advertising under Australian and Vietnamese legislations .2 Forms of tobacco advertising under Australian and Vietnamese legislations 26 2.3 Sanctions for violations of tobacco advertising under Australian and Vietnamese legislations .2 The implementation of tobacco advertising under Australian and Vietnamese legislations .1 The implementation of tobacco advertising under Australian legislation .2 The implementation of tobacco advertising under Vietnamese legislation .3 Remarks and implications for Vietnam.2 Tobacco packaging under Australian and Vietnamese legislations .1 Regulations on tobacco packaging under Australian and Vietnamese legislations .1 Main regulations on tobacco packaging under Australian and Vietnamese legislations .2 Sanctions for violations of tobacco packaging under Australian and Vietnamese legislations .2 The implementation of tobacco packaging under Australian and Vietnamese legislations .1 The implementation of tobacco packaging under Australian legislation .2 The implementation of tobacco packaging under Vietnamese legislation .3 Remarks & implications for Vietnam. 46 Summary of Chapter 2.
50 REFERENCES APPENDIX INTRODUCTION 1. The basis of this thesis Every 10 seconds, someone dies of a tobacco-related disease. Therefore, there are many countries over the world where committed individuals and governments have worked together to define, advocate, legislate and implement tobacco control policies. Advertising and promotion have been stopped.
Taxes and prices have been increased. Smoking has been banned in public places, etc. Among many tobacco measures used, tobacco advertising and packaging regulations are regarded as important instruments for the governments to reduce tobacco consumption and are actually what make the difference of tobacco control policy from policies on other products. Global tobacco control is considered a priority of World Health Organization (“WHO”).
The WHO Framework Convention on Tobacco Control (“FCTC”), the first international treaty negotiated under the auspices of WHO, which has been entered into force on 27 February 2005 provides new legal dimensions for member countries to develop new laws on tobacco control including restrictions on tobacco advertising and packaging. Vietnam became a party to the FCTC on December 17, 2004. On that note, a series of decrees and directives has been issued to implement the FCTC. Over the years, protections gradually expanded and were consolidated in Law No.
09/2012/QH13 dated June 08, 2012 of the Vietnamese National Assembly on Tobacco Harm Prevention (“Law on Tobacco Harm Prevention 2012”). The new regime significantly strengthened tobacco control policy in Vietnam. Accordingly, the regulations on tobacco advertising, packaging and label have had a remarkable change. However, the implementation of those regulations has been actually a struggle between the authorities and tobacco companies due to the gaps and ambiguousness of the new law.
It is supported by some commentaries that regulations on tobacco advertising and packaging should be considered as a violation of the basic rights of tobacco companies, retailers and customers in some regards. Firstly, tobacco products are legal products and tobacco companies are legal entities. This leads to the requirement of ensuring the legitimate rights of the enterprises by law. Those rights are, to name a few, the right to “communicate” to customers and the “freedom of expression”.
Secondly, as the consequence of the law of supply and demand, the restrictions on tobacco advertising, packaging must provide an 1 effective control for the customer to be able to get aware of and purchase the products as desiderated. As a result, the improvement of legislation, rather than stringent restrictions or outright prohibitions, is highly recommended. This is a big challenge in every country, especially in Vietnam, thus researching into this matter is meaningful and practically essential. The author chooses to approach the regulations on tobacco advertising and packaging in Vietnam by way of comparison with regulations in Australia.
The main reasons for this approach are: Firstly, comparing with other legal systems and international conventions is one of the routes to acquiring selective knowledge of how similar matters are governed in the other legal systems and the international conventions. Accordingly, lawmakers, experts, researchers, and law students review statutory provisions in Vietnamese law; Secondly, Australia is also a party of FCTC and thus many factors regarding the regulations on tobacco control are similar to those in Vietnam; Thirdly, Australian tobacco regulations are considered stricter and their implementation is more effective; Fourthly, there are a lot of cases and arguments between tobacco companies, retailers and the authorities have been used in Australian jurisdiction that make a vivid picture of the experiences in Australia while Vietnam has not had any major case till now. The above motives make the study of regulations on tobacco advertising and packaging valuable to the legislation and practice of relating area. In addition, it is of the author’s interest to learn more about these regulations and their implementation due to their special characteristics.
Therefore, the topic “Tobacco advertising and packaging under Australian and Vietnamese legislations - comparative and practical perspectives” is selected to be discussed in this thesis. Literature review In other countries, there are a large number of books, articles on the chosen research topic. They discuss different aspects of tobacco advertising and packaging, such as general principles, canons, outcomes, successes, setbacks and whether those regulations are unconstitutional, etc. In Vietnam, there are very few studies published on the regulations on tobacco advertising and no study on tobacco packing.
In Ho Chi Minh City University of Law, the works on tobacco policy can be counted on the fingers. The following ones are reachable by the author: Ngo Quy Linh (2004), Cong uoc khung ve kiem soat thuoc la va van de chong buon lau thuoc la bang chinh sach thue, Legal Sciences Journal No. 02/2004; 2 Ngo Quy Linh (2005), Tien toi thuc thi Cong uoc khung ve Kiem soat thuoc la cua To chuc Y te The gioi tai Viet Nam, Legal Sciences Journal No. 02/2005; Nguyen Thi Thanh Hang (2008), Thue tieu thu dac biet, cong cu phap ly huu hieu trong viec han che tieu thu thuoc la tai Viet Nam, graduate thesis.
The above researches discussed about some matters relating to tobacco control policy. However, they were conducted in the situation that the Law on Tobacco Harms Prevention had not been established in Vietnam. Till now there have not been any remarkable researches of the new regulations on tobacco advertising and packaging. Research objectives The research objectives of this thesis are tobacco control, tobacco control regulations and regulations on tobacco advertising and packaging.
Furthermore, this thesis covers the relevant regulations in FCTC, Australian and Vietnamese legislations. Research methodologies The author has adopted the method of dialectical materialism, the method of analysis and synthesis, statistical method and case method. Those methods are carried out at different parts of the thesis in order to achieve the purposes of the thesis. Contributions of this thesis First of all, this thesis provides an overview of tobacco control in the world, and a roadmap of regulations on tobacco control in Australia and Vietnam is introduced to provide a further understanding of the issue.
Secondly, this thesis deeply compares, assesses, analyzes the tobacco regulations on advertising and packing between Australia and Vietnam’s positions to draw implications for Vietnam. Thus, this thesis contributes towards further studies of tobacco advertising and packaging in particular, the tobacco control policy in general. Thirdly, new regulations, real-life stories, typical cases are clearly analyzed for the understanding and using of a wide set of readers fighting in the tobacco war, such as the legislature, executors, tobacco companies, retailers, people in non- governmental organizations, scientists, etc. 3 Overall, the author wishes to contribute to eliminate tobacco harms in Vietnam by advocating for the adoption and implementation of effective and equity laws.
Structure of this thesis This thesis has two chapters: Chapter 1: Overview of tobacco control and regulations on tobacco control in Australia and Vietnam. Chapter 2: Tobacco advertising and packaging under Australian and Vietnamese legislations - implications for Vietnam. At the end, the whole presentation is summarized in a short brief. 4 CHAPTER 1 OVERVIEW OF TOBACCO CONTROL AND REGULATIONS ON TOBACCO CONTROL IN AUSTRALIA AND VIETNAM 1.1 Overview of tobacco control 1.1 The necessary of tobacco control 1.1 Tobacco as a risk factor to health, social and economic costs (i) Health risks of tobacco use Tobacco use is addictive and very harmful.
Smokers start and continue for different reasons such as curiosity, risk taking, rebellion, parental and sibling smoking, peer pressure, the desire for weight control, the desire to look “grown up”, and the perception that tobacco use is normal or “cool”, etc. Human and animal studies have shown that nicotine is the substance in tobacco that leads to addiction and difficulty in quitting.1 Scientific evidence has conclusively shown that smokers are more prone to different types of cancer, particularly lung cancer. In addition, smokers are at far greater risk of developing heart disease, stroke, emphysema and many other fatal and non-fatal diseases. If they chew tobacco, they risk cancer of the lip, tongue and mouth.
In pregnancy, smoking to perinatal complications such as bleeding, which is dangerous for both mother and foetus. The harm from maternal smoking can extend beyond pregnancy, affecting the child’s growth and development.2 Smoking harms non-smokers, too. The first conclusive evidence of the danger of passive smoking came from a study carried out by Takeshi Hirayama, in 1981, on lung cancer in non-smoking Japanese wives married to men who smoked.