American Journal of Law & Medicine

Tobacco Control Lessons from the Higgs Boson: Observing a Hidden Field Behind Changing Tobacco Control Norms in Japan

I. INTRODUCTION

Despite the overall theme of this Issue being the future of global tobacco control, this Article is about Japan, with the conscious intention of presenting Japan as a demonstration of a different type of tobacco control environment. To be clear, I am not trying to suggest Japan is an unambiguously positive exemplar for other nations. Rather, it is with the idea that Japan's circumstances might be showing us that things are not always as bad as they might first appear. To quote Mick Jagger and Keith Richards, great philosophers of the twentieth century, "You can't always get what you want, but if you try sometimes, you just might find, you get what you need." (1)

Thus, in Part II of this Article, I will introduce the ostensibly poor circumstances of tobacco control law and policy in Japan over the past fifteen to twenty years. My first significant presentation on the subject was completed in the fall of 1996, (2) which precisely coincides with the peak of tobacco consumption in Japan that same year. The essential structures of tobacco control law and policy in Japan have remained virtually unchanged in the intervening years. For example, the Japanese government still owns a major interest in Japan's former tobacco monopoly, Japan Tobacco Inc., and it is still explicitly written into national law that the "sound development of our nation's tobacco industry" is a national legislative policy goal for two reasons: "to ensure stable fiscal revenues" and for the "sound development of the national economy." (3) As I have written previously, Japan's parliament "has formally recognized that tobacco is good business for the economy and good business for the government." (4)

Admittedly there have been some changes, mainly on the level of noncompulsory measures aiming to talk down tobacco use and encourage smoke-free environments, (5) as well as a recent tax and price jump and some local initiatives, but the big picture has been relatively constant. The tobacco industry and its political allies have been generally successful in holding the line on formal legislative policy change. Thus, aside from the nation's ratification of the Framework Convention for Tobacco Control (FCTC) in 2004, (6) when we look at the standard toolkit of mandatory smoke-free workplace laws, effective package warning labels, strict age control enforcement, substantial tax increases sufficient to make tobacco products expensive, or court orders mandating industry document disclosures and judgments awarding meaningful damages for death and disease caused by tobacco outlets, there is not much else to present in the legislative arena in terms of hard-wired changes in the law.

Nevertheless, from a tobacco control point of view, there have been great changes in Japan with regards to the bottom line results. This is the focus of Part III of this Article. Consumption has plunged, showing unrelenting and accelerating year-to-year drops for the past sixteen years. (7) The most recent annual consumption figure, released in November 2012 by the Tobacco Industry of Japan, (8) indicates 197.5 billion cigarettes sold, a number last seen in Japan in 1968 when the prevalence of adult male smoking was 78.5% and adult female smoking was 15.4%. (9) Prevalence has also made a steady downward progression. Using 1995 and 2011 data for comparison, male adult smoking fell from 58.8% to 33.7% and female adult smoking fell from 15.2% to 10.6%. (10) Moreover, smoke-free environments in both public and private spaces have become amply normed. (11) Just as in the United States, there are still many environments waiting for change, but it is fair to say that it is now possible for many of Japan's residents to go for days or weeks on end without being exposed to other people's smoke, in a way that was simply unimaginable at the turn of the millennium. (12)

This apparent conundrum of failed efforts in policy change coinciding with successful results in norms change leads to Part IV of this Article. It is seems as if hidden forces are positively driving social norms changes forward. Last summer, particle physicists in Europe had just announced the discovery of the Higgs Boson. (13) It struck me then that our investigation is analogous to their grand search for a hidden gravitational force. We might be humbled to remember that policy changes are merely an instrumental and intermediate means, a vehicle to achieve social norms change around manufactured tobacco products and their use. If other hidden forces can help further positive social norms changes, we should uncover and tap into their energy potential. That exploration is my aim here.

II. STUCK: JAPAN'S TOBACCO CONTROL POLICY ENVIRONMENT, 1996-2012

It will be difficult in this brief Article to give a thorough report of the past sixteen years of tobacco control laws and policies in Japan. In lieu thereof, this section has two parts--first, a look at important elements of some key tobacco control policies that have hardly changed, and second, a contemplation of what has changed, at least in measured steps and soft policy implementations.

A. THE MORE THINGS CHANGE, THE MORE THEY STAY THE SAME

As noted above, the fundamental intransigency in Japanese tobacco control policy is the Tobacco Business Act. This legislation declares a national policy choice favoring tobacco business and undergirds all other efforts to legislate change. (14) Despite the appearance of privatization for the tobacco industry in Japan, the Minister of Finance, on behalf of the government of Japan, is still Japan Tobacco's largest shareholder and beneficial owner of one third of the company's outstanding common stock. (15) Thus, the Tobacco Business Act reflects a political economy where tobacco interests have extraordinary control via sympathetic legislators and, more importantly, potent agency protection given by taxation and budgetary bureaucrats in Japan's Ministry of Finance. (16) The roster of Japanese government participants at the Fifth FCTC Conference of the Parties in November 2012 indicates how this remains an ongoing concern. (17) In blatant disregard of FCTC Article 5.3 and its implementing guidelines, (18) senior officials from the Ministry of Finance's tobacco and tax divisions served among the nation's seven-member delegation. (19)

Consequently, without a sufficient political infrastructure to drive tobacco control policy change forward, Japan basically lacks any law mandating broad protections of the public from exposure to tobacco smoke "in indoor workplaces, public transport, indoor public places, and, as appropriate, other public places" at the national or sub-national levels, or by administrative or executive orders, voluntary agreements, or otherwise. (20) Of course, and not surprisingly, this regrettable lacuna did not develop in a vacuum protected from noxious tobacco industry engagements. Rather, former secret tobacco industry documents expose tobacco industry "scientific and political efforts to stifle the development of clean indoor [sic] measures in Japan." (21)

There is no evidence of current progress in this regard. A recent legislative initiative to bring to Japan a mandatory clean-air law for many workplaces (notably excepting hospitality industry workplaces), the first of its kind, was stalled, diluted, and then allowed to die in the national parliament in 2012. After a landslide victory in the August 2009 election brought the Democratic Party of Japan (DPJ) to power, tobacco control advocates were heartened by the selection of Ms. Yoko Komiyama, perhaps Japan's staunchest tobacco-control-favoring parliamentarian, first to Deputy Minister of Health, Labour and Welfare, and then into the Minister's office. (22) Under her guidance, in April 2010, the Labor Standards Policy Commission proposed a revision to Japan's workplace safety laws that would have mandated smoke-free measures in workplaces outside of hospitality venues. (23) Despite its submission as a government bill in December 2011, opposition party strength in the upper house of the parliament allowed the Liberal Democratic Party (LDP) to block its movement. In April 2012, an agreement was reached between the DPJ and LDP to remove mandatory language and substitute in an "endeavor to provide" clean-air provision as in the Health Promotion Act, Article 25. (24) Even watered-down, the initiative was unable to move forward; it ultimately died in conjunction with the August 2012 dissolution of the parliament. Momentum was entirely lost owing to the DPJ's downfall in December 2012 and Ms. Komiyama's unfortunate defeat in the same election. (25)

Other well-recognized tobacco control policies (26) are virtually impotent in Japan. Although package warning label mandates were revised in 2004 in conjunction with Japan's FCTC ratification, (27) the current regime calls for 30% of the area on the front and back to contain in plain text, lengthy, fine-print technical warning language that seems designed mainly for obscurity and ineffectiveness in communicating with purchasers and users. (28) Moreover, no Japanese law prohibits advertising of tobacco products. Rather, restrictions on advertising exist in Japan only by "industry self- regulation" pursuant to a hortatory call for mindfulness and avoiding excess by advertisers in the Tobacco Business Act, and non-binding guidelines issued pursuant thereto. (29)

Given that tobacco taxation has only progressed slowly, tobacco products remain inexpensive in Japan. By simplest numeric measures, national and local taxes made up approximately 60% of the price of a pack of cigarettes in 1995. (30) As of 2012, the figure had only increased to 64.5%. (31) Retail prices, set by Japan's Ministry of Finance, have been stable as well. The retail price of a pack of JT's popular Mild Seven brand, soon to be known as Mevius, was [yen] 250 in 1995 and is only [yen] 410 today. (32)

Recent events concerning taxation and pricing also demonstrate tobacco policy dynamics in Japan. For years, it was impolitic for politicians to even suggest that a tax increase was motivated by public health concerns. (33) Tobacco taxes only inched upwards with modest increases resulting in a [yen] 20 per package price increase in December 1998, another [yen] 20 price increase in July 2003, and a [yen] 30 retail price increase in July 2006, which together brought tobacco prices still only to roughly [yen] 300 per package. (34) In 2008, tobacco control advocates began a push for meaningful increases, raising a higher profile for the issue. (35) This appeared to be making progress with agreement at the ministerial level before stalling in a sudden turnaround attributed to the then-ruling LDP leadership. (36) After the DPJ's landslide victory in the August 2009 election, talk of a substantial tax increase returned to the political discussion and again brought forward fierce oppositional rhetoric. (37) DPJ leaders raised taxes by [yen] 70 per package in December 2010, (38) which combined with an industry-chosen price increase, brought cigarettes to their current level that is centered around [yen] 410 per package. …

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