Wednesday 30 January 2013

Sugar is not evil, but hysterical, authoritarian journalists are

Those of you who don't have a subscription to The Times will be dismayed to hear that the nation's erstwhile newspaper of record is capable of publishing the same hastily knocked off, empty-headed, knee-jerk garbage as the rest of the media. I offer some choice cuts from Sarah Vine's article about sugar—titled 'Sugar is not evil — but marketing it to appeal to juvenile minds is'—as incontrovertible evidence.

... Of course sugar, per se, is not evil; but the overpromotion and overconsumption of it is. In Britain, every corner shop and supermarket is packed with the stuff. What’s worse, everything about the presentation and marketing of high-sugar foods is designed to appeal to the juvenile mind. Get them hooked young, and you’ll have loyal customers for life. And even if that life turns out to be foreshortened by obesity-related illness, no matter. Plenty more bringing up the rear.

All this talk of hooking 'em young and replacing those who die with fresh recruits beings to mind the rhetoric about the tobacco industry. Sure enough, Vine is quick to draw parallels. In fact, she reckons that those who make sweeties are even more depraved.

If the tobacco or alcohol lobby behaved in such a way, we would be justifiably horrified. But even those who make and sell alcopops to teenagers wouldn’t have the brass neck to push their products on primary school children. 

Could that be because they're completely different products, as evidenced by the fact that tobacco and alcohol can only be sold to those aged 18 or over? Vine is too busy playing the "think of the children" card to make such trivial distinctions. Not just the "think of the children" card, but also the "think of the parents" card.

Parents can only do so much. I can influence what my daughter eats at home, but in a few years she’ll be off to secondary school, and then who knows how many corner shops will enjoy her patronage on her way home? 

It's a chilling thought. If lured into a corner shop by the sugar industry and its unscrupulous allies, this poor teenager could be exposed not only to Curly Wurlies, but also to Kit Kats and Lion bars. Before she knows it, she could be experimenting with midget gems and liquorice all sorts. Clearly, what is needed here is government intervention and lots of it.

If sugar was more expensive, sweets would once again become what they ought to be: treats, to be consumed occasionally; and not, as they currently are, cheap and readily available empty calories that the young all too often eat in place of real food.

Yes, the government should make penny chews cost 2p, thereby completely pricing young people out of the market.

Dare to suggest such a thing to the food lobby, however, and they become as hysterical as a group of toddlers in a Haribo factory.

As opposed to your own calm and rational reaction to a press release from a single issue pressure group?

And when, yesterday, more than 60 organisations, including the Royal College of Paediatrics and Child Health, backed a recommendation by the food and farming charity, Sustain, for a tax on fizzy drinks in the next Budget, they really threw their toys out of their prams.

Did they really? This is the statement released by the British Soft Drinks Association. Which part of it is the hysterical, toy-throwing bit? The bit where they say obesity is "a serious and complex problem" or the bit where they say they "recognise our industry has a role to play in the fight against obesity"?

Their response reminded me of the head of the National Rifle Association, Wayne LaPierre, when he said that “the only way to stop a bad guy with a gun is a good guy with a gun”.

Tobacco, alcohol and now guns! Any other bogeyman you want to throw into the mix? Crack dealers, perhaps? Human traffickers? Paedos?

Seriously though, what was said that was hysterical?

They issued dire warnings, predicting “a disastrous impact” if the Government were to acquiesce, adding that it would affect: “the poorest families hardest at a time when they can least afford it”.

Oh, you must mean when the British Soft Drinks Association said "Putting up taxes even further will put pressure on people’s purses at a time when they can ill afford it." Yeah, that was real inflammatory stuff. You know what it reminded me of? That guy from the National Rifle Association saying he wanted to put armed guards in every school in America.

What nonsense. Last time I checked, tap water in Britain was still free and potable. No one is going to go thirsty if the price of a can of Coke doubles.

No one's saying that people are going to go thirsty—that's a straw man you just built. What people are saying is that indirect taxes on price inelastic goods are regressive. Do you know why? (The clue's in the elasticity part.) Because people are not going to stop drinking Coke and start drinking nothing but water.

The only people who would experience hardship would be the drinks manufacturers, who have been coining it for decades. 

Businesses turning a profit? Boo!

The Government should seriously consider these recommendations, not just for the good of the public purse, but also for the health of the nation.

And I should seriously consider cancelling my subscription to The Times, not just for the good of my bank account, but also for the good of my blood pressure.

Fizzy drink taxes

I debated fizzy drink taxes on Five Live last night with Tam Fry of the National Obesity Forum. Last time I debated with Mr Fry he was very keen indeed on taxing soft drinks, but he now seems to be against it.

Listen here from 52 minutes in.

I also have a blog post up at the IEA discussing the motivations of the various organisations who want to set up a whole new layer of bureaucracy with this tax.

The soda tax being mooted will simply turn a £6 billion cost into a £7 billion cost. Sustain do not even suggest that the £1 billion raised should go to the NHS. Instead, they want the money to go to organisations that will raise awareness of obesity - organisations like Sustain, for example. They also want to set up a new quango to implement and monitor the extensive bureaucracy that will be involved.

This is pure public choice theory in action: concentrated interest groups extracting rents from a large population in order to enlarge their own bureaucracy and enhance their own power and prestige. It comes as no surprise to find that Sustain is largely dependent on handouts from the state (mainly from the Greater London Authority and the National Lottery), as are dozens of the other groups who have joined the campaign.

Please read the whole thing.

Monday 28 January 2013

So long, suckers!

You know how some of the big pub chains, such as Greene King and Enterprise Inns, have declared their support for minimum pricing because they think it will bring people into pubs to make up for those who were driven away by the smoking ban?

For some reason they think that if people are forced to pay £1.10 for a can of beer instead of 80p, then they'll say "what the hell, I might as well go to the pub and pay £3.90".

This is an optimistic way of looking at the issue, to say the least. A more likely scenario is that minimum pricing will mean drinkers have less money to spend once they've bought their off licence alcohol and will therefore have less to spend in the pub.

Well, guess what? It looks like that's what's going to happen.

Introducing a minimum price of 45p per unit will deter four in 10 customers from pubs, according to a new poll by YouGov

Oh dear. I guess the temperance lobby isn't the publican's friend after all. Who knew?

The survey commissioned by drinks firm SABMiller questioned 1,261 people who had had an alcoholic drink in the last week.

It found that minimum pricing will have the biggest impact on those struggling to keep up with their outgoings, with 56% saying they are most likely to drink less in the pub.

However, it's not all bad news...

Of those who said they will drink less at home, 0.36% said they will drink more at the pub.

Sounds like they won't have a problem finding a seat.

"Irresponsible, ill-informed, and lazy journalism"

If you haven't seen this already, sorry to land it on you on a Monday...

E-cigarettes 'can cause more harm than smoking,' experts say

They are billed as a healthier alternative to smoking, yet experts now warn that electronic cigarettes may be more damaging than the habit they replace.

Who are these experts who defy sense and science by saying such inflammatory, irresponsible and downright dangerous things? Susannah Butler of the Mail on Sunday—for it is she—does not tell us. She only gives us a four word quote from someone in Germany...

This can cause ‘acute respiratory system irritation’, claims Dr Elisabeth Pott, director of the Federal Centre of Health Education in Cologne, Germany, who has studied e-cigarettes.

That's an itchy throat to you or me. Much worse than all the harm that smoking can do, I'm sure you'll agree.

Clive Bates has quite rightly sent a complaint to the Press Complaints Commission...

Complaint regarding Mail on Sunday article 27 January 2013: E-cigarettes ‘can cause more harm than smoking’, experts say

1. The headline and premise of the story is completely inaccurate – there are no circumstances in which e-cigarettes cause more harm than smoking. In reality they are are almost harmless – probably at least 99% less risky than cigarette smoking. No expert would say this and none has.

2. There is no fact or argument in the article to support the headline or its main premise. This is simply asserted by the by the journalist in the first sentence of the article, and in the headline. The fact that e-cigarettes ‘can cause acute respiratory system irritation’ in some users is barely relevant. An ‘irritation’ is a minor issue compared to cancer, heart disease and emphysema caused by smoking. It is these chronic conditions that do the most harm. Most e-cigarette users don’t experience this irritation and no figures are given on how many people are afflicted by this irritation or how severely. So even the one health impact that is mentioned is asserted without any quantification or sense of its seriousness. It certainly is not described in a way that justifies the headline or premise of the article. Inflammation and irritation of the respiratory tract is common in smokers (smokers’ cough) – as well as cancer, heart disease etc.

3. No experts are quoted in the article saying e-cigarettes ‘can cause more harm than smoking’ – yet this quote is used in the headline and is unattributed. No experts have said this because it is not true. The article doesn’t even support its own (false) premise.

4. There is implicit misleading scaremongering about ‘the chemical propylene glycol’ (why mention it otherwise?). In reality this is a largely benign substance used as a food additive and in medicines.

A grossly inaccurate story like this could have real impacts on human welfare if it discourages people from switching from smoking cigarettes to e-cigarettes. It is also unfairly damaging to numerous small businesses trying to grow the market for a much safer alternative to smoking. This is particularly irresponsible, ill-informed, and lazy journalism.

Well said. It's good to see that a director of ASH is so concerned about people's health that he took time out on a Sunday to respond to dangerously misleading journalism. Shame it's one who resigned ten years ago.

Sunday 27 January 2013

Gambling addiction soars?

From the Independent on Sunday...

Addiction soars as online gambling hits £2bn mark

As the online business business approaches the £2bn mark and bookies seek to lure in new punters, the number of Britons at risk of becoming addicted is growing rapidly.

Two claims are being made here: firstly, that the online gambling market is worth £2 billion and secondly—presumably as a result—gambling addiction has "soared". Both these claims are reasserted in the first line, except cause and effect are switched around and the future tense comes into play.

A huge increase in gambling addicts will make Britain's obsession with online betting a £2bn business.

So, what's the evidence for this?

New evidence reveals that the number of people in danger of becoming problem gamblers has reached nearly a million, while hardcore addicts have doubled in six years to almost 500,000.

Strange, because the British Gambling Prevalence Survey hasn't been published since 2010 and there won't be another one because the government has cut its funding. I discussed the results of these three surveys (1999, 2007, 2010) in my IEA report about casinos.

Despite predictions in the popular press that two per cent of the population would be “addicted” to gambling by 2007, the figure remained at around 0.6 per cent of the population between 1999 and 2007. Evidence from the the past five years is more equivocal, with one of the internationally recognised measures of problem gambling finding no statistically significant rise in prevalence between 2007 and 2010 (PGSI) and the other finding a rise from 0.6 per cent to 0.9 per cent that was on the margin of statistical significance (DSM-IV).

In terms of numbers, the British Gambling Prevalence Survey says:

This equates to somewhere between 342,000 and 593,000 adults according to the DSM-IV and between 254,000 and 507,000 adults according to the PGSI.

Assuming that the Independent on Sunday means "problem gamblers" when it uses the tabloid term "hardcore addicts", both sources allow the possibility that the figure is "half a million". The British Gambling Prevalence Survey has settled on a very rough estimate of 451,000.

But this is from a report published three years ago. The Independent on Sunday tells us there is "new evidence" that "hardcore addicts have doubled in six years to almost 500,000". Where is it?

Halfway down the page, after a load of editorialising about how ghastly the 2005 Gambling Act was, we finally get to it...

The Gambling Commission, set up under the Act to regulate gambling, carried out its most recent national survey in 2010. In addition to the 450,000 problem gamblers in the UK – up more than 200,000 since 2007, with an average debt of £17,500 each – the British Gambling Prevalence Survey (BGPS) found that another 900,000 people were at "moderate risk" of becoming problem gamblers, while 2.7 million more displayed "some risk factors".

Right. So the "new evidence" is a report that came out in 2010. It doesn't say that addiction has "soared" and it doesn't say the number of "hardcore addicts have doubled" (because the 2007 report never said there were 200,000 problem gamblers). What it says is this (PDF)...

DSM-IV problem gambling prevalence was higher in 2010 (0.9%) than in 2007 and 1999 (0.6% for both years). This equates to around 451,000 adults aged 16 and over in Britain. The increase was significant at the 5% level. However, the p-value was 0.049, showing that this increase is at the margins of statistical significance. Some caution should be taken interpreting this result as there may be some other underlying factor affecting estimates between survey years. Where possible, differences between the responding samples were taken into account and the result remained significant at the 5% level (p=0.046). Further surveys are needed to examine if this is evidence of an upward trend in problem gambling prevalence or simply random fluctuation in the data.

Not quite the terrifying picture painted by the tabloids, is it? The 2010 study also found that the proportion of adults in the UK who played online casino games, online bingo and/or online betting rose from 6 per cent to 7 per cent between 2007 and 2010. Again, hardly the last days of Rome, is it?

But you've got to love this line about the 2005 Gambling Act...

As with 24-hour drinking, few predicted the consequences.

No one correctly predicted the consequences, perhaps. I recall lots of people, including the Independent on Sunday, waxing hysterical about how we would become "a nation of gambling addicts" in the same way that virtually the whole of Fleet street confidently predicted that the Licensing Act ('24-hour drinking' in tabloid-speak) would lead to a massive rise in alcohol consumption and alcohol-related violence. None of it happened, but let's not allow the facts to get in the way of good story.

Saturday 26 January 2013

The fat and the poor

This week, lots of outraged people—mainly on the political left—got themselves in a tizzy when public health minister Anna Soubry pointed out that childhood obesity rates are disproportionately high amongst low income groups.

This fact has been taken as read for many years. In all the time I've been writing about these issues, I don't recall anyone in public health having challenged it. But because a Tory pointed it out, various "debunkers" leapt on the "gaffe" and tried to show that it was baseless prejudice.

At the New Statesman, Alex Andreou called it a "big fat lie" while the Joseph Rowntree Foundation put up a response titled 'Most obese people are not poor'. Both relied on the straw man claim that Soubry had said that most, or even all, obese people were poor. In fact, she had said that "that's where the propensity lies."

And she's right. The BBC's health reporter Nick Triggle did his best to muddy the waters, laughably describing the evidence as "hardly categorical" even while showing a graph that displayed an obvious correlation and a perfect dose-response relationship (see below).

Why the controversy? Soubry's greatest crime was to not use the most politically correct language. She used the word "poor" instead of "deprived" or "underprivileged". As Tam Fry of the National Obesity Forum said:

"It was the tone of what she said. It was arrogant and condescending."

As for the facts, he conceded:

"Yes it is true that the lower down the social scale you go the more likely people are to be obese."

On Twitter, big boned Labour MP Diane Abbott tried to whip up the mob. She reckons that pointing out the well known association between poverty and obesity amounts to "blaming the victim".

This is the same Diane Abbott who wrote in 2011:

Studies about the predictors of obesity in the UK have shown that the poorest are most likely to be obese.

I don't see fat people as "victims", nor do I feel the need to "blame" anyone for something that is none of my business. Even if I did, the incomes of those involved would have nothing to do with it.

Abbott, on the other hand, wants us to blame the food industry for making people like her grossly overweight. She won't take responsibility for herself and she doesn't expect anyone else to. As a state socialist, she holds institutions accountable for all human outcomes and believes that the only solutions lie in a more coercive government. Terrifyingly, this woman could be Britain's next health minister.

All this hand-wringing about "stigmatisation" and "victim blaming" is so much guff when you consider the campaign of "denormalisation" that has been waged against smokers and is gradually being waged against the fat. For a striking example of the latter, I recommend you read this new paper by the bioetheticist Daniel Callahan. He calls for a campaign of public shaming to complement other anti-obesity measures.

I believe only the government’s power to tax, to regulate, and on occasion to come close to mild coercion would be sufficient to make a difference.

... It will be imperative, first, to persuade them that they ought to want a good diet and exercise for themselves and for their neighbor and, second, that excessive weight and outright obesity are not socially acceptable any longer. They need as well to be mobilized as citizens to support a more invasive role for government. Obesity is in great part a reflection of the kind of culture we have, one that is permissive about how people take care of their bodies and accepts many if not most of the features of our society that contribute to the problem. There has to be a popular uprising when so many aspects of our common lives, individually and institutionally, must be changed more or less simultaneously. Safe and slow incrementalism that strives never to stigmatize obesity has not and cannot do the necessary work.

You can guess where he draws his ideas from...

When I was first drawn to think about obesity, I could not help thinking about the success of the anti-smoking campaign of recent decades. That campaign went simultaneously after the supply side (the tobacco industry) and the demand side (individual smokers). As a smoker, I was at first criticized for my nasty habit and eventually, along with all the others, sent outside to smoke, and my cigarette taxes were constantly raised. The force of being shamed and beat upon socially was as persuasive for me to stop smoking as the threats to my health.

All the usual propaganda can be found in this article, including the old "we have to expect liberty to be sacrificed when we're fighting a war" trope.

They no less need to understand that, whatever they may think about the power and excess of government, it is inescapable in this case, as much as with national defense.

Yes, we're all smokers now. If you can stomach it, go read the whole thing.

Thursday 24 January 2013

More great "evidence" that plain packaging works

Oh Lordy, has any barrel ever been scraped like this? The following headline comes from the Times of India which, for reasons that will soon be apparent, was one of the only news outlets to bother with tobacco control's latest piece of brilliantly inventive "science".

Plain packaging of tobacco cuts smoking

Cool. What's the evidence for that?

Experts believe that plain packaging of tobacco products would cut smoking, a new study has found.

And why is that?

Because Australia, the first country to implement plain packaging, only did so in December of last year there is no quantifiable evidence as of yet. 

Quite so.

Therefore, scientists have used the next best option, the expertise of internationally-renowned tobacco control specialists from around the world.

Ha ha! The next best option is asking the opinion of campaigners for plain packaging?! How very droll.

For the study, 33 tobacco control experts from the UK (14), Australasia (12) and North America (7) were recruited. Professionals in these regions were targeted because these countries are currently considering (or have recently implemented) plain packaging for tobacco products. They were then interviewed about how plain packaging – packaging without brand imagery or promotional text and using standardised formatting – might impact the rates of smoking in adults and children.

Please tell me you're not going to do what I think you're going to do.

The experts estimated that plain packaging would reduce the number of adult smokers by one percentage point (on average) two years after the introduction of plain packaging.

Oh God. I can't bear to watch.

More impressively, they believe that generic packaging would reduce the percentage of children trying smoking by three percentage points (on average) two years after plain packaging is introduced.

Hey, that is impressive. If the people who advocate the policy think it will work, what more proof could we ask for?

Professor Theresa Marteau, Director of the University of Cambridge’s Behaviour and Health Research Unit, who led the study, said...

Stop calling it a study! It's a small survey of your mates' partisan opinions.

“Currently, approximately 10 million adults in Britain smoke. A one percentage point decline – from 21% of the population to 20% – would equate to 500,000 people who will not suffer the health effects of smoking.”

There you have it. Plain packaging will make half a million people stop smoking. The science is settled.

I'm starting to feel embarrassed on these people's behalf.

Wednesday 23 January 2013

Fun with ASH and the Beeb

ASH Wales spent yesterday furiously tweeting in support of their own campaign to forbid actors to smoke on camera in film studios. Do these zealots really believe they are adding one iota to the sum of human health by stopping a handful of cigarettes being smoked each year in the barn-size environment of a studio? Perhaps they do, for they are so insane that they seriously suggest that animated cigarettes be placed on actors' mouths in post-production using CGI technology. This is the world we live in today, folks. The giant asteroid cannot come too soon.

I asked ASH if any member of the acting profession cared about this mole hill of an issue but, alas, supportive thespians can't take the heat and are too scared to speak out in public. I'm sure there's thousands of them cheering ASH on private though.

The beauty about this little battle is that ASH's Cardiff division has to take on their traditional friend and ally, the BBC. England's smoking ban allows smoking for theatrical purpose. Wales's does not. This has caused some problems for the BBC, such as having to redirect entire film crews from Cardiff to London. And so the Beeb wants an exemption along the English model, as does the rest of the Welsh TV and film industry.

ASH Wales will not be moved. The state-funded fake charity is battling over this trivial rule like Bloody Mary battled over Calais and, with the sweetest of ironies, has accused the BBC of bias.

It gets even better when you look at ASH's arguments for not allowing an exemption. Dick Puddlecote has had a lot of fun over the last year with ASH CEO Deborah Arnott's classic comment about the slippery slope AKA the "domino theory"—that once campaigners start on one industry, they soon move onto other industries. There is almost daily evidence that this is what happens—look at tobacco, alcohol, fizzy drinks and food—but ASH flatly dismiss such arguments as scare-mongering:

...the “domino theory” i.e. that once a measure has been applied to tobacco it will be applied to other products is patently false.

So what is ASH's objection to allowing a teensy-weensy exemption to the smoking ban for the TV industry?

"This, we would argue, is a matter of convenience for the television industry - and health legislation should not be amended on commercial grounds.

"What industry is going to come next?"

Yeah, you know what it's like. You make an exemption for theatrical productions and the next thing you know every industry gets an exemption and the whole ban gets dismantled. Just like in, er, England.

ASH give some rather interesting examples of which industry's would be in this domino rally and why...

"If this exemption is passed on the basis of commercially supporting a specific industry, we can expect a litany of requests from other industries such as pubs, clubs and the tourism industry for exemptions due to tough economic times."

As Nannying Tyrants has noticed, this sounds very much like an admission that the smoking ban hasn't worked out too well for pubs and clubs, despite all the promises from ASH. As indeed it hasn't.

And finally, the prize for using the word "industries" the most times in a single sentence goes to Cancer Research UK's "director of tobacco control", Jean King, who decided to stick her oar in.

"Our concern would be that other industries - and not just industries, but very powerful vested interests behind those industries - support those industries to get put forward cases."

You have to wonder how incoherent her interview was for the BBC to pick that out as her defining quote, but perhaps that's the old anti-ASH bias again. You can read more of the supposedly biased BBC coverage here and here. It is somehow both hilarious and deeply depressing at the same time.

Tuesday 22 January 2013

Asthma and the smoking ban: Find the decline

Yesterday I mentioned a study published in Pediatrics which claimed that childhood asthma rates fell after the English smoking ban was introduced in 2007. The study concludes:

The implementation of smoke-free legislation in England was associated with an immediate 8.9% reduction in hospitalizations for asthma along with a decrease of 3.4% per year.

The lead author is listed as Christopher Millett, an Australian social scientist who has worked in "obesity prevention" and assists Stanton Glantz's campaign to get smoking out of the movies. Glantz himself—founder of Americans for Nonsmokers' Rights and a veteran campaigner for smoking bans—is a co-author and the study should be seen as another entry in Glantz's unenviable canon of junk science.

First, it is necessary to understand a few things about asthma. Although many people intuitively believe that there is a close relationship between smoking and asthma, this is not borne out by empirical evidence. As the BMJ noted in 2005:

A broad consensus exists that in most Western countries the prevalence of asthma increased over the last four decades of the 20th century.

Rates in England and Wales are shown here:

This huge rise in asthma rates is totally inconsistent with the belief that smoking causes or exacerbates asthma, since we all know what happened to smoking rates in the last four decades of the 20th century.

Asthma rates go up and down quite inexplicably. After rising at an astonishing rate for years, there was a large drop in childhood asthma cases in the UK from the early 1990s until 2001, since when rates have stayed fairly flat. The reasons for this are not known, as the BMJ article says:

While theories abound, we must admit that neither the rise nor the recent flattening or fall in the prevalence of asthma can be explained on the basis of current knowledge. Any single explanation would need to account for both the rise and fall of the prevalence of asthma. A substantial change in prevalence would require a large change in an important risk factor to which a large proportion of the population was exposed. Various explanations have been proposed to explain trends and geographical variations in asthma, including air pollution, tobacco smoke, aeroallergens, diet, and infections in early life, but none has been shown by epidemiological studies to fit the above requirements.

In Canada, the number of children with asthma rose in the 1990s, but the number of childhood asthma attacks fell. Childhood admissions for asthma in Australia fell in the 1990s but rose in the 2000s, at a time when smoking bans were introduced (see below). Adult admissions continued to fall, however.

In America, rates of asthma—including childhood asthma—have been flat or rising slightly since 2001. And in the Netherlands there was a huge increase in childhood asthma prevalence in the 1980s and 1990s which ended around 1995. As authorities have noted, "there has been no satisfactory explanation for this observation."

What does any of this tell us? Not much, except that it's futile to predict whether rates of asthma will rise or fall in the future since the causes of the condition are not well understood. Asthma rates vary enormously between countries and fluctuate greatly over time, and no one really knows why. It also shows that if smoking (let alone passive smoking) has any impact, it is not big enough to show up in aggregate data. However, as we shall see, Glantz's new study relies on the conceit that asthma rates can be forecast with precision and that the effect of passive smoking can be identified and isolated in the aggregate data.

Although there is no link between smoking and asthma rates at the population level, some epidemiological studies have found a correlation between childhood asthma prevalence and smoking households, just as there is a correlation between asthma prevalence and income (and, perhaps tellingly, also between smoking and income; income may therefore be the third variable). But, as Statistics Canada notes:

...there was no difference in the rate of past-year asthma attacks between those in smoking and non-smoking households.

Between 1994/1995 and 2000/2001, in smoking households, the prevalence of asthma among children increased, but past-year attacks among those with asthma decreased. Curiously, only children in non-smoking households experienced an increase in the prevalence of wheezing or whistling in the chest. The presence of other allergenic factors in the home (pets, for instance), which was not assessed in the NLSCY, may be related to the increase in asthmalike symptoms among children in non-smoking households.

So what about Britain in recent years? After dropping off in the 1990s, asthma rates have varied only slightly from year to year since 2000 and there has been neither a rise or decline in the medium-term (which is a source of frustration for Asthma UK).

The graph below shows hospital admissions for asthma amongst 0-14 year olds in England (the group studied by Glantz and his team). It shows that the smoking ban had no effect on rates of asthma amongst this group (nor, as I showed in my previous post, did it have any effect on rates amongst all age groups.) The data come from HES England and cover all NHS hospitals in England. Note that these are financial years, but the smoking ban began in July (2007). The graph shows twelve years' data, whereas the Pediatrics study shows only 8.5 years. Click to enlarge.

Between 2000/01 and 2006/07, the average number of childhood hospital admissions for asthma was 23,747. Between 2007/08 and 2011/12, the average number of admissions was 23,851. In other words, the rate remained essentially the same before and after the smoking ban. Evidence from London below (red line) shows much the same picture for adults and there are similar statistics for England and the North West here.

Whichever dataset you use, it is apparent that the rate of hospital admissions for asthma was higher in 2006/07 than in any other year in the series, albeit only slightly. This is crucial for Glantz/Millett's hypothesis because it allows them to portray the rate as rising before the ban. No such claim can legitimately be made on the basis of a one-year peak (the data show several other peaks, for example in 2001/02 and 2008/09, which did not represent the start of a long-term rise).

Predicting the number of hospital admissions for asthma even one year in advance is a mug's game. Nevertheless, having asserted that numbers were on the rise, they make a post hoc quasi-prediction that the rate would have continued to rise had the ban not been introduced.

Finally, having observed that the rate did not rise in reality, they conclude that the ban resulted in there being 6,802 fewer hospital admissions for asthma than there otherwise would have been. Note that their methodology means that it is not necessary for the rate to decline at all after the ban for them to claim the smoking ban reduced asthma cases. It is only necessary for the number of admissions in Glantz's hypothetical parallel universe to be higher than the rate recorded by the NHS.

We estimated the number of admissions prevented in the 3 years after implementation of the law by estimating the number of admissions if there were no legislation (the counterfactual) using the coefficients estimated in the model using all the data but setting the law dummy and time after the law variables to 0 for the whole time period, then adding the differences in number of admissions each month between the actual admissions and counterfactual estimate.

This is sheer junk science, using a trick that we have seen used before for similar purposes. It's a heads-I-win, tails-you-lose fiddle. The only way the authors' hypothesis could be disproved was if asthma admission rates happened to soar up at an exceptional pace straight after the ban. Even that would probably not silence them since they would only say that, had it not been for the ban, the situation would have been still worse.

One only needs to look at the graph displayed in the study itself to see how fanciful it is to say, as the BBC did, that there was "a sharp fall in the number of children admitted to hospital with severe asthma after smoke-free legislation was introduced in England."* This chart (shown below) shows Glantz's prediction of what would have happened without the smoking ban (red) versus the actual data (blue). The red vertical line represents the smoking ban. Do the rates to the right of the line look lower than those on the left to you?

Find the decline

The "prediction" would have been more impressive if it had been made before the ban was introduced, rather than once all the data had been collected. Once they knew the outcome, the slightest adjustment could be used to show an effect from the ban.

How can you predict rates of a disease in a whole nation when you don't know what causes it and you don't know why the rate has risen and fallen in the past? You can't, and neither can Glantz. Instead he extrapolates from the ultra-short term to create unfalsifiable figures. That would be poor practice in any study, but when you don't have any variables and the long-term trend is downwards (see below), it is absurd. But he has to do so because if the data were allowed to stand on their own, it would be quite obvious to any observer that the asthma rate has ticked along in the usual way, unencumbered by Glantz's beloved legislation.

Returning to Glanz's graph, if one ignores the arbitrary "counterfactual" and looks only at what actually happened (in blue), the story seems to be one of continuation and moderate random fluctuation. The number of admissions rise or fall by between 3-15% every year, meaning that the 8.9% decline claimed in this study is by no means exceptional or unusual.

There is a clear pattern in each year. Rates hit an annual low in August before hitting an annual high in autumn. (When they say there was an "immediate" decline of 8.9%, please don't tell me they are comparing the June to August?! Surely no one would be that dishonest, but I have my suspicions.) You will notice that the high in 2006 lasted longer than usual—that's why the 2006/07 year was the peak year in the series. You will also notice that 2008 saw an unusually sharp rise in admissions—the authors make no comment about this.

Nor do they attempt to explain why, if the ban was responsible for the slightly lower rate of admissions in 2007/08, the benefits of the ban were not seen in subsequent years when the rate should have been equally low, if not lower. In fact, the press release that accompanied this study explicitly, and quite falsely, stated that a large initial decline in admissions was followed by further drops.

NHS statistics analysed by researchers at Imperial College London show a 12.3 per cent fall in admissions for childhood asthma in the first year after the law on smoking in enclosed public places and workplaces came into effect in July 2007. The researchers found that asthma admissions continued to fall in subsequent years, suggesting that the benefits of the legislation were sustained over time.

As bad as the study is, it does not claim there was a 12.3% decline in the first year nor does it claim the rate fell further thereafter. Imperial College should be ashamed for putting out garbage that the press has regrettably, but understandably, swallowed.

Is there anything useful to be taken from this piece of research? I'm afraid not. Recall that Statistics Canada found "no difference in the rate of past-year asthma attacks between those in smoking and non-smoking households". That being the case, the idea that there would be an immediate decline in asthma admissions is most unlikely. Even if there was a plausible mechanism, the idea that smokers immediately banned smoking in their own homes in July 2007 as a result of the government banning smoking in pubs is highly dubious and Glantz provides no evidence for it. Instead, he relies on a circular argument, saying:

The reductions in asthma admissions identified here are consistent with findings that smoke-free legislation may be associated with reductions SHS exposure in children due to an increase in voluntary smoke-free policies in the home or while traveling in a car.

What we have here is a study that claims to find a correlation between asthma rates and passive smoke exposure over time despite no correlation having ever been found with active smoking in the past (inverse correlations being much more common). It does not even attempt to show that children were "exposed" to less passive smoke after the ban was introduced; instead the authors infer from their own conclusion that they must have been. It uses a single year peak to wrongly imply a long-term rise which it then incorporates into a hypothetical model which uses no other variables.

As with previous efforts of this sort, the publicly available hospital admissions data speak for themselves. Trust the evidence of your own eyes, not manipulated graphs and speculative models.

There is a fundamental dishonesty in all this. Leaving aside the questionable assumptions and partisan biases of Glantz and his team when they were making their model, it remains a model and should be presented as such. The model cannot be allowed to unseat recorded, demonstrable facts. History—such recent history—cannot be allowed to be rewritten. That, however, is what is happening.

I suggest to you, dear reader, that most people who read about the "sharp fall in the number of children admitted to hospital with severe asthma" would have assumed that the number of children admitted to hospital with severe asthma fell sharply in an actual year, not in a hypothetical year which exists in the imagination of a man who Dick Puddlecote has described, with some justification, as "the foremost anti-smoking crank on the planet". But then maybe I'm very old fashioned.

* Stanton Glantz has since said: "The BBC did a nice story on the paper." You can always rely on them, Stan. Actually, the Beeb's report wasn't even the worst. Special mention should be given to the Daily Mail, the Telegraph and the Guardian, all of whom took more than three-quarters of their reports directly from the shoddy press release. Their scores are below...

Monday 21 January 2013

The English asthma miracle

The BBC has reported the latest heart-warming news about the English smoking ban...

There was a sharp fall in the number of children admitted to hospital with severe asthma after smoke-free legislation was introduced in England, say researchers.

A study showed a 12% drop in the first year after the law to stop smoking in enclosed public places came into force.

The implication is that this is the result of reduced secondhand smoke exposure. Of course, the smoking ban mainly affected places where children don't go, ie. workplaces, pubs and clubs, so the authors suggest that the smoking ban inspired people to make their own homes "smokefree" of their own volition.

The lead researcher, Prof Christopher Millett, said the legislation has prompted unexpected, but very welcome, changes in behaviour.

"We increasingly think it's because people are adopting smoke-free homes when these smoke-free laws are introduced and this is because they see the benefits of smoke-free laws in public places such as restaurants and they increasingly want to adopt them in their home.

"This benefits children because they're less likely to be exposed to second hand smoke."

Regular readers will know that studies of this sort have a tendency to be refuted by publicly available hospital admissions data. Actually, that's an understatement. In every single instance when the hospital admissions data are available, studies of this sort have not stood up. I'll discuss the mind-boggling methodology of this study (of which Stanton Glantz is an author) tomorrow, but for now here's the data from England's Hospital Episode Statistics which do not appear to support the claims being made.

Shown below are the number of hospital admissions for asthma (ICD code J45) since 2000/01. The figures shown are for the 0-14 year age group studied in the new study. The smoking ban began in July 2007. Click to enlarge.

Out of curiosity, I also looked at the number of asthma admissions for all age groups.

Regarding emergency admissions, it worth recalling the announcement from Asthma UK in 2010...

Asthma UK said the number of emergency admissions had remained unchanged for a decade

They were referring to Scotland in that instance, but that did not prevent claims of a Scottish asthma miracle being made. It may be that the situation in England is radically different from that in Scotland, and it may be that the trend in emergency admissions data differs radically from that of finished consultations. But, as we shall see tomorrow, it isn't.

(Please note that this post originally said the admissions were consultations. The graphs still do. In fact, the 0-14 year old graph shows admissions and the all ages graph shows emergency admissions. Thanks to BrianB for pointing out the error.)

Sunday 20 January 2013

Oxfam on inequality

Oxfam released a report yesterday (more of a press release, in truth). It calls for...

An end to extreme wealth by 2025. Reversing increasing extreme inequality and aim to return inequality to 1990 levels.

The trouble with this, aside from the fact that economics is not a zero-sum game, has been pointed out by Tim Worstall at the ASI...

Global inequality, the only form of inequality that a good little liberal should be concerned about at all, has fallen over the years.

But perhaps Oxfam are thinking mainly about the situation in the UK where inequality has presumably risen sharply since 1990. It must have done, because they say so in their report:

"In the UK inequality is rapidly returning to levels not seen since the time of Charles Dickens." 

No doubt many people believe this, but as this graph from the Office for National Statistics shows, the Gini coefficient, the standard measure of inequality, is not rising—let alone rising rapidly. There hasn't been any real rise in inequality for the best part of a quarter of a century and inequality is lower today than it was in Oxfam's hallowed year of 1990. Job done, then. Next.

You'd think that Oxfam would take five minutes to check widely available statistics before pontificating on a subject. I'm sure it was an honest mistake. The alternative explanation—that they made a conscious decision to mislead the public because they're a bunch of lying leftards—is too horrible to consider.

Friday 18 January 2013

Hurling brickbats

I'm always slightly taken aback when seemingly intelligent and well-informed people nonchalantly dismiss whole bodies of evidence as if they don't exist. Last year, I had a number of face-to-face discussions with people who had some authority in their field but who cheerfully denied the existence of facts which displeased them. Not denied knowledge of them, mind. They knew that they were generally regarded as facts, they just felt that if they said the facts were wrong then they were wrong. No evidence required.

Without naming names, the head of an addiction charity and a peer of the realm both blithely responded to the well-documented fact that alcohol consumption has, by any measure, fallen in the last decade, with words along the lines of "I don't believe it." On another occasion, a senior figure in public health asked if I really believed the Scottish government's own figures about how many drinks would go up in price under a minimum pricing regime (it was a very large percentage—why would they lie about that?). Similarly, I sat in rooms with a well-known TV doctor and the head of a relatively well-known public health association, both of whom flatly denied that there was any benefit to cardiovascular health from drinking moderate quantities of alcohol.

I hesitate to use the rather silly word 'denier', but these are issues about which the evidence could hardly be stronger. What all these examples have in common is that the facts are inconvenient to the person hearing them and so, rather than acknowledge reality, they simply shake their head and wish them away. In a pub conversation without access to Google, this is an effective way of shutting down debate, but I was surprised to find influential people—all of whom no doubt regard themselves as 'evidence-based'—being so badly informed/self-deluding. I suppose you can afford to be if you're in a position of power. Not a very comforting thought.

A couple of weeks ago, I wrote about the systematic review which found a slight reduction in mortality risk from being overweight. This, too, was dismissed with contemptuous insouciance. You may recall Walter Willett, an eager warrior in the battle against obesity, being so annoyed by the findings that he said: "This study is really a pile of rubbish and no one should waste their time reading it." Fine words from an academic. It reminded me of Stanton Glantz's response when the British Medical Journal published a passive smoking study that displeased him, conducted by two professors from UCLA. He said: "the science that the UCLA study did was crap" but did not feel he needed to explain in what way this was so. Later, the BMJ's editor, Richard Smith, said of the angry reaction to the study that it was "disturbing that so many people and organisations referred to the flaws in the study without specifying what they were. Indeed, this debate was much more remarkable for its passion than its precision."

This is often the way when research is deemed unhelpful to certain interest groups. Mud is slung and voices are raised. For the campaigner who is emotionally involved in the issue and has already made his mind up, substantive points are less important than creating the perception that the study in question has been 'debunked'.

There was a minor example of this in the Guardian this week when an unassuming little study about genetics was savaged by the postgraduate epidemiology student and award winning blogger Suzi Gage. The study found that people with certain genotypes are more likely to cut down or quit their tobacco use in response to higher tobacco taxes than are people with other genotypes. To put it another way, some people's genes make it harder for them to quit.

This is by no means a new discovery. It is very plausible that certain people get more pleasure from smoking than others and are therefore less willing, or less able, to quit, even with the strong disincentive of higher taxes. This may well be a genetic difference, as many other well-publicised studies have suggested.

This, however, was not a well-publicised study, so I was puzzled by why Gage bothered to write about it at all, let alone why she went at it with both barrels...

Poorly conducted research is a gift to the opponents of tobacco control

...this study is a gift to those who would like to prevent attempts to reduce levels of smoking. Tobacco control research is under huge amounts of scrutiny from those trying to undermine it. Poorly conducted experiments where the conclusions overstate the actual findings make public health's battle with vested interests all the more difficult.

Her wrath mainly seems to have been stirred by the study's title: 'Why Have Tobacco Control Policies Stalled? Using Genetic Moderation to Examine Policy Impacts'. You would think that this would be a question that those who want "to reduce levels of smoking" would be interested in. It is inarguable that the decline in smoking rates has slowed, stalled or even gone backwards in some countries in the last decade. It is self-evident that stop-smoking policies have not worked on everyone and it is an observable fact that there is a 'hardcore' of smokers who seem impervious to taxation, advertising bans, display bans, graphic warnings, smoking bans etc. Moreover, this 'hardcore' makes up a significant minority of the population—at least 20 per cent in most countries. It is worth asking why.

Gage thinks it is dangerous to even ask the question. She thinks the mere existence of this kind of research plays into the anti-anti-smokers' hands by casting doubt on existing policy and therefore needs a damned good debunking. This is despite the fact that the author of the study, from the Department of Health Policy at Yale, appears to have no axe to grind and concludes his study with these less-than-inflammatory words...

This is an important first step in future health policy efforts to further reduce adult smoking rates. Additionally, this study has begun a new examination of potential gene X policy (G X P) interactions that may have broad scope in learning why some policies are effective and others are not and also deepen our understanding of the genetic response to broad-based policy interventions.

This, apparently, is a "gift to those who would like to prevent attempts to reduce levels of smoking" and Gage goes on to provide some "alternative explanations" for the study's findings. Actually, she doesn't. She just offers various caveats and suggestions for future research that would normally fall under the heading of 'limitations' in your average epidemiological study. Some of it is relevant, some of it is nitpicking and some of it doesn't have much to do with the study at all. None of it justifies her claim that the research is "poorly conducted." It is rather like saying that an epidemiological study is "poorly conducted" because correlation doesn't equal causation. There are inherent limitations in some fields and there is usually room for more research. That doesn't make the current research worthless.

What surprises me about all this is that Gage thinks that this little study is such a potential hand-grenade that it needs to be eviscerated in the popular press. I freely admit that I am one of the "opponents of tobacco control" insofar as I think the movement is on the wrong track and often does more harm than good. It is not just that it isn't conducive to liberty, but that it doesn't work even on its own terms. If one is serious about reducing the damage to health of cigarette smoking—which can be the movement's only justification for its existence—then the promotion of e-cigarettes, snus and other alternative nicotine delivery devices could make the whole smoking issue yesterday's news within a decade. Unfortunately, the tobacco control movement has become so caught up in vested interests, self-interest and self-righteousness that it pursues increasingly trivial and useless policies ("let's make the warnings bigger!") while blocking the effective remedies that stare them in the face.

But although I am one of those "opponents", it never occurred to me to exploit this particular piece of research, nor has anyone else in the media or blogosphere as far I know. At the most, the author of the study is saying that other anti-smoking policies need to be implemented in addition to Pigovian taxation. Who in tobacco control does not agree with that? The aim of Gage's piece is not to challenge a claim that has been made by the study's author, nor is it to torpedo claims made by someone who has latched onto it. Rather it is to destroy the credibility of a modest piece of research on the off-chance that someone in the future may use it to challenge the orthodoxy of tobacco control.

It takes extreme hyper-sensitivity to throw brickbats at a fellow scientist because his research might inspire someone to question whether every political action you support is 100% effective on 100% of the population. Let's not forget—as Gage apparently did—that there is an academic behind this study who wasn't expecting his work to be maligned just because he dipped his toes into the paranoid world of tobacco control. His name is Jason Fletcher and he is not best pleased, as his comments at the Guardian reveal...

17 January 2013 1:32 AM

What about a poorly conducted blog post incorrectly describing the study?

As one of many examples:

"Perhaps even more importantly, there is such a distance between individual genetics and state-wide policy, that to say one affects the other is to ignore a huge amount of influence that happens between the level of the cell and that of the population."

This is not at all what is being examined in the paper (genetics affecting state policy or vice versa). Perhaps before writing this type of critique you might ask the author for clarification or response?

You might also clarify precisely what overstatements were made in the paper when writing: "Poorly conducted experiments where the conclusions overstate the actual findings...'

Jason Fletcher (Study Author)

17 January 2013 11:48 AM

Jason, thanks very much for your comment.

If your paper is not examining the relationship between genotype and a state level policy (in this case, tobacco taxation), I am very sorry that I've misunderstood it. Please could you correct me?

The overstatements I believe the paper makes are mentioned in the article. In particular, the title of your paper is 'why have tobacco control policies stalled?', which suggests you're going to answer this question, yet your study doesn't look at how policy affects quit rate; you don't investigate either the impact of a change in policy, or indeed the number of people successfully quitting.

I am sorry if there is a negative tone in the headline. I think that ascertaining why tobacco control policies do not work for everyone is really important and useful research. I am not sure that genotype is the best method for choosing sub populations for targeted interventions.

17 January 2013 1:48 PM

@soozaphone - But your language is very precise in the article:

"Poorly conducted experiments where the conclusions overstate the actual findings...'

What CONCLUSIONS in the article overstate the actual findings?

Secondly, if you are unsure you understood the article, perhaps you would want to retract your blog post?

Sadly, Gage left the discussion at that point so we may never know the answer.


The Guardian has given Fletcher the right to reply. He makes the point I make above very neatly, saying: ""Imperfect" research is not the same as "poorly conducted" research. Most research is imperfect and some research is indeed poorly conducted." He concludes by saying:

First, just because a finding can be used for evil by industry does not mean we should censor or question the finding, as implied by Gage's description of my research as a "gift". Some well done science will be used by "evil corporations".

Second, it is truly frustrating and disappointing that such an inflammatory headline ("poorly conducted research") was used in the Guardian to describe my paper without any discussion with me (or any others with relevant expertise as far as I can tell) to clarify the various mistakes and points of contention that Gage makes in her post. The headline was an affront to my professional reputation as a researcher and the post was an affront to the perceived quality of the Guardian.

Thursday 17 January 2013


I've got a blog post up at the IEA about Anna Gilmore's latest stab at economics. She still doesn't understand what 'market failure', 'monopoly' or 'profit' mean, but she does want more money.

A curious little idea was reported by the BBC and the Telegraph this week, when two academics from Bath University called for the UK’s tobacco industry to be ‘regulated like water companies’. Anna Gilmore of the UK Centre Tobacco Control Studies - a campaign group based at the University - came up with the ruse in 2010, but it got no media attention until it was repackaged this month with the fictitious ‘Ofsmoke’ added to the mix as a potential regulator...

Do go have a read.

Wednesday 16 January 2013

Banned advertising

Nicolites have had their television (?) advert banned because it was unable to prove its claim that e-cigarette vapour is 100% safe. Fair enough. They shouldn't have made the claim; even nicotine patches don't claim to be 100% safe (nicotine affects the heart rate). I'm surprised they didn't get their script checked over more thoroughly, but I'm sure they'll be back on the telly (?) soon.

It did, however, remind me to tell you about the temperance lobby's obsessive complaints to the Advertising Standards Agency. In 2011, Alcohol Concern set up a front group called the Youth Alcohol Advertising Council which has been bombarding the Advertising Standards Agency with frivolous complaints ever since. The project has not been terribly successful, as their presentation at last year's Al Con conference shows. These are the three case studies they highlighted...



In the ad Bacardi facilitates the young men to meet the young women and ultimately sexual success, which is not explicitly portrayed but is obviously alluded to throughout, in breach of the spirit if not the wording of the code.

ASA's response

‘Whilst we appreciate your concern... We do not consider the ad is likely to suggest sexual success as a result of alcohol consumption.... The ad showed a group of adult friends on a night out in a bar and covered later activities over an extended time.’



The ad, clearly targeted at female consumers communicates the message that drinking enhances confidence. YAAC particularly objected to the ‘I am what I am’ scene which linked alcohol with improved self- confidence.

ASA's response

‘Whilst we appreciate your concern... No one in the ad was seen drinking... The message consumers were likely to take was that people like those in the ad, who were a little extrovert, were likely to enjoy the product’



The message ‘Don’t wait for an extraordinary night, make one” - followed by lingering shots of Smirnoff - strongly implied alcohol was essential for a special night out.

ASA's response

‘Whilst we appreciate your concern... None of the characters were seen drinking...the references to alcohol were brief and were unlikely to be interpreted as key to the social events portrayed.’

It seems that this band of fresh-faced Mary Whitehouses have had little success getting alcohol adverts off the telly, so it's all been a waste of Comic Relief's money (for it is they who fund it). But the story has a punchline. At the same Alcohol Concern conference, the temperance quango Balance NorthEast gave a presentation about its 'See What Sam Sees' campaign which campaigns for a ban on alcohol advertising.

Balance NorthEast is one of the country's most flagrant examples of a government sock puppet. Entirely taxpayer-funded, it engages in blatantly lobbying, campaigning and petition-gathering whilst pretending to be an independent organisation. Following the anti-tobacco blueprint to the letter, it takes the "population level de-normalisation approach" and aims to "follow success and learn lessons from the regional tobacco control office, Fresh."

See What Sam Sees was an expensive attempt at government-lobbying-government which included a television ad. But guess what...

An advert highlighting the dangers alcohol advertising poses to youngsters in the North East has been banned from being aired on television.

Oh woe, why so?

The regulator says...

TV scripts viewed as "campaigning"

Rejected under Rule 7 BCAP code

The Communications At 2003 prohibits political advertising.

(7.22 b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory

(7.22c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere

What a pity.

Friday 11 January 2013

Pub closures and the smoking ban

The BBC is running an article about pub closures in Britain. In typical fashion, Auntie blames supermarkets and taxation while studiously avoiding the massive elephant in the room that is the smoking ban. No doubt excessive alcohol duty has exacerbated the situation for many boozers, and there is a longterm decline in pub numbers going back over a hundred years, but there can be no doubt that forcing many of their best customers out into the cold has been devastating for much of the UK pub trade.

I recently obtained the statistics showing the number of pubs in operation from the British Beer and Pub Association. Shown below, a picture is worth a thousand words...

A popular excuse of anti-smoking campaigners (who, let's not forget, predicted that pubs would benefit from a huge influx of nonsmokers) is to blame the post-2007 decline on the recession. But as you can see from the graph, not only did the big drop-off begin before the recession started, but the previous recessions of the early '80s and early '90s (shown as shaded areas above) did not lead to pubs closing at a faster rate. In fact, the data support the traditional view that pubs are 'recession-proof'.

Supermarkets did not suddenly start selling alcohol in 2007 and beer duty did not suddenly jump up. Something else must have happened in 2007 to cause this unprecedented decline in pub numbers. Something that happened on the same scale in Ireland when it began in 2004. Something that the pub trade has identified as the killer blow. Something that most publicans, even five years laters, still want to get rid off. Ooh, whatever could it be?

Wednesday 9 January 2013

The Sock Doctrine

Yesterday in Parliament (from Hansard)...

Mr Kevan Jones: To ask the Secretary of State for Communities and Local Government with reference to item 37 of his Department's document, 50 Ways to Save: Examples of Sensible Saving in Local Government, what he meant by (a) sock puppet and (b) fake charity; and which local authorities have entered into arrangements with such organisations. [135443]

Brandon Lewis: As 50 Ways to Save explains, the footnote source referenced is the Institute of Economic Affairs' Discussion Paper, “Sock puppets: How the government lobbies itself and why”, June 2012, This can be found online, and it includes definitions of such arrangements and case studies.

50 Ways to Save also references the Taxpayers' Alliance research paper, “Taxpayer funded lobbying and political campaigning”, which includes further examples.

To assist the hon. Member in his visualisation of a sock puppet, I would observe that DCLG Ministers in the last Administration authorised £38,200 of taxpayers' money to bankroll lobbyists, LLM Communications; in turn, LLM then ran the supposedly independent 'Campaign for More and Better Homes' which campaigned in favour of the last Administration's Regional Spatial Strategies, and issued press releases praising the (then) Government's policies and attacking the Government's critics.

Stanley Cohen RIP

The sociologist Stanley Cohen died yesterday. Cohen coined the term 'moral panic' in his 1972 book Folk Devils and Moral Panics (1972). Frank Furedi offers a few thoughts about his legacy—and contemporary panics—over at Spiked....

Unlike the conventional moral panics, which were directed against clearly recognisable folk devils, twenty-first-century anxieties tend to focus on less tangible phenomena, which, we are told, could have catastrophic consequences. The current catastrophic imagination also informs us that there is a growing range of ‘conditions’ that threaten human life. Outwardly at least, fearmongering about global terrorism, superbugs or climate change appears very different to the old panics about traditional targets such as juvenile delinquents, drug addicts and single mothers. Lacking moral depth, today’s panics are depicted as responsible reactions to objective, measurable, real-world conditions. So-called scientific claims stand in for old-style moral condemnation.

...Modern-day fearmongering is still oriented towards regulating personal behaviour, and it is frequently as prescriptive as the traditional moral crusades were. Indeed, today’s fear entrepreneurs frequently assert the moral authority of their enterprise. Public-health campaigns against obesity are a good example of how modern crusades turn a physical condition into a moral threat. This is a crusade that openly boasts of its mission to alter people’s personal behaviour.

Also at Spiked, be sure to read Timandra Harkness's article about obesity.

Tuesday 8 January 2013

The youth of today

From the NME:

Justin Bieber fans self-harm in 'protest' against his alleged marijuana smoking

Seriously, what is the matter with kids these days?

Saturday 5 January 2013

E-cigarettes in The Guardian

An absolutely superb article in The Guardian on the subject of e-cigarettes by Lionel Shriver. It mentions the Tobacco Products Directive...

Why did the EU's tobacco product directive released last month propose effectively banning any e-cigs that deliver remotely enough nicotine to make them an attractive alternative to tobacco? Isn't a "tobacco product directive" reaching beyond its remit by seeking to regulate a product containing no tobacco?

It touches on the self-righteous morality of the anti-nicotine extremists...

For anti-smoking fanatics, e-cigs must be enraging. They can't clamber on to that handsome high horse, because what's to get upset about? Those plastic vapour sticks aren't gunking anyone's lungs or even stinking up the drapes. And those dreadful cheats seem to be enjoying themselves! They're getting away with something horrid scot-free! It isn't fair! They should get cancer! Imagine the dizzy swoon of indignation deprivation: what's upsetting is there's nothing to get upset about.

It even discusses the role of the pharmaceutical industry...

The pharmaceutical industry profits from popular but far less effective methods for quitting tobacco such as patches and gums, and spends more than €40m a year lobbying the EU. In the UK in 2011, nicotine replacement therapies were worth £117m in turnover, largely due to NHS freebies. It's in Big Pharma's interest to quash the e-cig, now that 7% of Europeans have tried one and in 2013 they are expected to attract more than a million Britons.

And it concludes:

You want real evil? What's truly evil is attempting to deny people addicted to a profoundly damaging substance the opportunity to transfer that addiction to a product most medical professionals rate as 99% harmless. The gathering European opposition to electronic cigarettes is the result of kneejerk cultural prejudice, puritanical vindictiveness, corporate collusion, and the unconscionable greed of tax authorities that won't be able to heap the same punitive, confiscatory, opportunistic duties on a product that doesn't hurt anyone.

Spot on. Well done to the Guardian for publishing this. We need to hear much more of the same over the next year or so if the EU is going to be brought to its senses.

Friday 4 January 2013

Minimum pricing is illegal - the details

As I have said repeatedly for the last few years, minimum pricing is almost certainly illegal under EU law. The temperance lobby acts as if this is a minor inconvenience that can be overcome in the all-conquering name of 'public health' (it is even described as a "myth" by the Department of Health sock puppet Balance North East), but it remains a fact.

The most recent confirmation of this came in late November with a Communication from the European Commission (download as PDF). It discusses case law for minimum pricing, not only for alcohol but for fuel and tobacco, and makes it quite clear that it breaches the EU's free trade rules.

The document is currently only available on the website of the medical temperance group Eurocare. I've copied it below for the record.


1. MSG 315 IND 2012 0394 UK EN 27-12-2012 26-09-2012 COM 9.2(2) 27-12-2012
2. Commission
3. DG ENTR/C/3 - BREY 08/94
4. 2012/0394/UK - C00A
5. article 9, paragraph 2, second indent of Directive 98/34/EC
6. In the framework of Directive 98/34/EC, on 25 June 2012 the UK authorities notified to the Commission the draft Alcohol (Minimum Price per Unit) (Scotland) Order 2013.

According to the notified draft order, an alcohol product must not be sold to consumers at a price below a minimum price. The legislation prescribes a formula to calculate the minimum price of each product, which is MPU x S x V x 100; where MPU is the minimum price per unit (specified by order), S is the strength of the product (actual ABV or “declared” ABV) and V is the volume of the product in litres (S x V x 100 calculates how many 10 millilitre units of pure alcohol the product contains). The draft order sets up a minimum price per unit of 50 pence.

The notification message explains that the minimum pricing aims to reduce alcohol consumption across the Scottish population to improve public health and attain social benefits in the areas of crime, public services, productivity and the economy as a whole. In particular, it aims to target a reduction in consumption of cheaper alcohol products relative to their strength because the evidence shows that this type of product is more likely to be favoured by hazardous and harmful drinkers, and they are likely to benefit most from a reduction in alcohol-related harms. 

A summary of the policy and the evidence behind it can be found at the beginning of the accompanying Business and Regulatory Impact Assessment. It is further pointed out that minimum pricing is a key part of a wider strategy. The Scottish Government’s alcohol strategy (“Changing Scotland’s Relationship with Alcohol: A Framework for Action”, published in 2009) sets out over 40 measures aimed at addressing alcohol-related harm and is closely aligned with the World Health Organisation’s Global strategy to reduce harmful use of alcohol.
Pursuant to Article 9(2) of Directive 98/34/EC, examination of the draft has prompted the Commission to deliver the detailed opinion set out below.

Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU) 1. A measure of equivalent effect to a quantitative restriction

As regards minimum pricing, the EU secondary legislation, especially Council Directive 92/83/EEC on the harmonization of the structures of excise duties on alcohol and alcoholic beverages, does not prohibit Member States from setting minimum retail prices for alcoholic beverages. However, any such national measure and its effects still need to be compatible with other provisions of EU law, including the Treaty’s rules on the free movement of goods (Articles 34-36 TFEU).

The case-law of the Court of Justice of the European Union ("Court of Justice") is unequivocal to the effect that national legislation imposing minimum pricing in respect of particular products falls within the ambit of the Article 34 TFEU (prohibition on measures having the equivalent effect of impeding imports of products). According to the 'Dassonville formula':

"All trading rules enacted by Member States, which are capable of hindering directly or indirectly, actually or potentially, intra-EU trade are to be considered as measures having an effect equivalent to quantitative restrictions."

The Court of Justice has ruled that national rules fixing retail prices for alcoholic beverages could constitute measures having an equivalent effect to quantitative restrictions on imports contrary to Article 34 TFEU. This would be the case if, for example, prices were set at such a level that imported products were placed at a disadvantage in relation to identical domestic products, either because they could not profitably be marketed in the conditions laid down or because the competitive advantage conferred by lower cost prices was cancelled out. In other words, a minimum price fixed at a specific amount may, according to the circumstances, have an adverse effect specific to the marketing of imported products and thus constitute an obstacle to the free movement of goods within the Internal Market.

In the case Van Tiggele (Case 82/77, ECR 1978, p. 25) the Court decided that "a fixed minimum price which, although applicable without distinction to domestic products and imported products, is capable of having an adverse effect on the marketing of the latter must be considered as a measure having an effect equivalent to a quantitative restriction in so far as it prevents their lower cost price from being reflected in the retail selling price."

In the case Keck and Mithouard ("Keck") (joined cases C-267/91 & C-268/91) the Court of Justice restricted the scope of Dassonville finding that that:

"... the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgement (Case 8/74[1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States ".

Furthermore, the Court of Justice stated that:

"51. For that reason, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the case-law flowing from Dassonville, unless those provisions apply to all relevant traders operating within the national territory and affect in the same manner, in law and in fact, the selling of domestic products and of those from other Member States. The application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is by nature such as to prevent their access to the market or to impede such access more than it impedes the access of domestic products (see, to that effect, Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR1-6097, paragraphs 16 and 17, and Commission v Italy, paragraph 36) ".

Thus the ruling in case Van Tiggele still stands.

It follows from this case-law that minimum prices do not fall under Article 34 unless they discriminate against imports.

Unlike a prohibition on resale at a loss or an obligation to apply certain profit margins (Keck and Mithouard supra, and Belgapom), minimum prices do not take into account the costs of
imported products which have lower prime costs than the equivalent domestic products.
imported products which have lower prime costs than the equivalent domestic products. Consequently, there is a risk that minimum prices might discriminate against imports, depending on the level at which they are set. For example, in recent proceedings relating to minimum prices for tobacco products, Advocate General Kokott, said that:

“Where a minimum price is set by a Member State there is a danger that manufacturers from other Member States who wish to obtain a competitive price advantage on the market by charging lower maximum retail selling prices will be placed at a disadvantage. Fixing a minimum price would cancel out the competitive advantage deriving from the lower production cost of the imported product.”

In the case Leclerc the Court considered the effect of measures by the national authorities in France to set minimum prices for fuel. The Court confirmed that minimum prices discriminate against imported products vis-a-vis equivalent domestic products, because imported products with a lower cost base than the equivalent domestic products are deprived of their competitive advantage.

As regards the draft order at issue, the Scottish Government’s Regulatory Impact Assessment indicates that with a minimum unit price of £0.50 per unit, 73%/66% of alcohol measured in natural volumes sold in off-trade retail premises will be affected and will have to increase in price. Hence, domestic as well as imported products will be affected by the minimum pricing at issue. However, it does not follow that the imported and domestic products will be affected in the same way.

For example, as regards spirits, the price of French Brandy, sold by all the major supermarket chains would have to increase. The competitive advantage in the costs of French Brandy production (which is only required to mature for one year/6 months, depending on the size of the cask) as compared to Scotch Whisky (which is required to be matured for at least 3 years) is removed by minimum pricing. The minimum price of a 70cl bottle of both products, sold at 40% vol, will be £14.00. 82% of French Brandy is currently sold at a price lower than 50 pence per alcohol unit and only 3% of malt whiskey is sold at a price lower than 50 pence per alcohol unit, which indicates a restrictive effect of the measure on foreign produced spirit in comparison to Scotch Whisky.

Another effect of the policy is to create a barrier to entry into the Scottish market. Goods seeking to enter the market, and which could be sold (even if only initially) at a price below the proposed MUP to encourage supermarket listing and consumer trial, are denied the opportunity to do so.

The effect is particularly important because new entrants into a market, particularly a differentiated products market, typically need to offer discounts to consumers in order to induce consumers to try the new product(s). Such discounting is, however, impossible when it would imply retail prices below that implied by MUP. An example of the impact on potential new entry can be seen in relation to the cider market in the UK, where domestic producers have a strong market position. In order to enter this market, foreign suppliers – particularly from Ireland and Sweden – have used various pricing strategies such as discounting and multi-pack offers. These pricing strategies, which may be seen as necessary by the importing companies to establish a foothold in the UK cider market, will no longer be possible under a policy of MUP. More general economic evidence and experience indicates very wide recourse to such strategies in consumer goods markets, suggesting that their effective elimination could substantially raise barriers to entry into the Scottish market.

Consequently, the measure at issue, although applicable without distinction to domestic products and imported products, is capable of having an adverse effect on the marketing of the latter and should be considered as a measure having an effect equivalent to a quantitative restriction in so far as it prevents their lower cost price from being reflected in the retail selling price.

2. Justification for the measure – the proportionality of the measure

Restrictive measures can be justified on the basis of Article 36 TFEU or on the basis of one of the overriding requirements in the public interest recognized by the Court of Justice. However, the Commission draws the attention of the UK authorities to the fact that in order to justify the measure, the Member State has to prove that such restrictive measure is necessary to achieve legitimate objectives and is proportionate to this aim i.e. the objective cannot be achieved by any other means less restrictive of intra-Union trade (Case C-104-75, De Peijper, [1976], ECR 613 and Case C-50/83, Commission v Italy [1984] ECR 1633, point 17). Moreover, according to Article 36 TFEU the measure shall not constitute a means of arbitrary discrimination.

The measure at issue is aimed at reducing alcohol consumption across the Scottish population and thus improving public health and attaining social benefits. In particular, it aims to target a reduction in consumption of cheaper alcohol products relative to their strength because the evidence shows that this type of product is more likely to be favoured by hazardous and harmful drinkers.

The Scottish authorities justify the restrictions on imports on the grounds of protecting the health and life of humans by reducing the overall consumption of alcoholic beverages. The scale and nature of alcohol-related health and social harm in Scotland is described in detail in the Scottish Government's Regulatory Impact Assessment (RIA). One example which illustrates why decisive action is called for is that over the last 30 years Scotland has had one of the fastest growing rates of chronic liver disease and cirrhosis in the world, whereas the rates are falling in many Western European countries.

Alcohol consumption in Scotland has remained at a high level since 2005, at around 12 litres of pure alcohol per year per every person aged over 16 years. This is in contrast to England and Wales where alcohol consumption has fallen somewhat from the same level as in Scotland around 2005. Although there has been a slight fall in the reported volume of alcohol consumed in Scotland too over the past year or two, the high level of drinking continues to cause harm. The number of alcohol-related discharges from general hospitals has declined from around 42 000 to around 39 000 per year. Despite the decline, alcohol-related discharges are fourfold the level in the early 1980s. Alcohol-related mortality rates, despite some fluctuation, have more than doubled since the early 1990s. More than 100 000 GP visits per year relate to an alcohol-related admission and 11% of accident and emergency admissions are alcohol related. It is estimated that 65 000 children live with a parent with an alcohol problem. In this context, the Commission fully understands and acknowledges the public health and social reasons that call for decisive action to reduce alcohol consumption in Scotland.

The Scottish Government's minimum pricing policy has a dual goal: (1) to contribute to a reduction in alcohol consumption across the Scottish population to improve public health; (2) to target, in particular, a reduction in the consumption of alcohol which is cheap relative to its strength.

The minimum pricing policy contributes to a reduction in overall alcohol consumption, and thereby to improve public health as one component in a comprehensive national alcohol strategy (Changing Scotland's Relationship with Alcohol: A Framework for Action, 2009 ). This strategy includes 40 separate measures, builds on and adds to measures already implemented and is underpinned by wider policy initiatives across sectors such as health, education and justice.

It is worth noting that total alcohol consumption is a key health indicator in the EU (ECHI 46) as a proxy for the level of alcohol related harm in a Member State.

The second goal is based on research showing that the high sales of alcohol in Scotland are to a large extent driven by high sales of cheap alcohol primarily through the off-trade.

The effects of alcoholic beverage prices on alcohol consumption and related harm and of taxation as the main instrument for controlling price levels have been researched more extensively than any other area of alcohol policy. (Summarised for example in: Anderson & Baumberg 20068; WHO 20099; Babor & al 201010; WHO 2012) When other factors remain unchanged, an increase in alcohol prices generally leads to a decrease in alcohol consumption, and vice versa, although the effects in general vary in strength between beverage categories. All alcohol consumers respond to price changes, heavy drinkers included, but in particular young people. Increasing the price of alcohol reduces both acute and chronic harm.

The study carried out by RAND Europe on behalf of Directorate-General "Health and the Consumers" of the European Commission in 2009 shed further light on this area. The study focussed on the affordability of alcoholic beverages, a function of alcohol price and consumer income. Alcoholic beverages have become more affordable in most EU countries since the mid-1990s. Of this increase, 84% was driven by increases in income, and only 16% by changes in alcohol prices which remained relatively stable or decreased. The study showed that the real value of the EU alcohol minimum excise duty rates and of Member States' alcohol taxation has decreased since the mid-1990s in most EU countries.

The Commission is fully aware of the importance of reduction of alcohol consumption among the population as a whole and in particular among the harmful drinkers. The Commission further acknowledges that the measure proposed is within Member States' competence and - from a public health point of view - within the scope of the goals and objectives of the EU strategy to support Member States in reducing alcohol related harm (COM(2006)625 ). While identifying priority themes for action which are relevant in all Member States and for which action and coordination at EU level has an added value, the strategy highlights that Member States have the main responsibility for national alcohol policy and that Member States are implementing, based on their particular cultural contexts, a range of specific measures to reduce alcohol-related harm.

However, the measure at issue raises doubts as to its compatibility with the principle of proportionality, therefore the Commission would like to concentrate on it and the possibility to achieve the objective by other means less restrictive to intra-EU trade.

Keeping in mind that most of the studies prove and there is a general agreement that affordability does have effect of drinking patterns, the question is only about the best way to exploit this tendency. Hence, the Commission does not disagree with the proposition that increases in the prices of alcoholic drinks could, other things being equal, be expected to lead to reduced demand for those drinks. The focus in this opinion is rather on whether a MUP policy, which would lead to higher prices of many alcoholic drinks and hence to an expectation of reduced consumption, is likely to be the least market distorting policy that could be introduced to produce such an outcome.

If the goal is, for health policy reasons, to reduce alcohol consumption via increasing the prices of alcoholic beverages, that goal can be achieved by raising alcohol taxation across the board. The price of alcohol would thus increase without causing the market distortions that, as shown above, can be expected to flow from MUP. It is the Commission's view that there is at least one alternative, regulatory option to MUP that is less restrictive of trade and less distorting of competition in relevant drinks markets.

The Court mentioned in the case Commission v Greece (Case C-216/98, [2000] ECR I-8921) that concerned tobacco pricing and in which article 36 TFEU was invoked: "In this case it must
be observed that the objective of protecting public health may be adequately attained by increased taxation of manufactured tobacco products, which would safeguard the principle of free formation of prices."

It could also be mentioned that in the RAND study commissioned for Directorate-General "Health and Consumers" of the European Commission it was stated that the "increases in taxation at the national level could be an effective strategy to reduce alcohol-related harms". Indeed it seems that an increase in existing excise duty would be a better option to address the alcohol consumption problem without having the adverse effects as it would impact all products equally.

Furthermore, policy-wise the raising of duties might be a better solution because it might help to reach the goals without leading to the negative effects that MUP might have. This result feeds into further economic distortions that might arise as a consequence of the MUP. These potential distortions arise because the MUP will create greater incentives for retailers and supermarkets in particular, to sell more alcoholic beverages as a result of the fact that they will make higher margins on products affected by the policy. This will give retailers incentives to allocate increased resources to the sale of products affected by the MUP compared with what could be expected to be the case if, for example, similar average retail price increases were caused by an across-the-board increase in duty, which is an alternative policy option for reducing consumption. In economic terms, this makes MUP a less effective means of reducing consumption than duty increases.

Indeed, Union legislation provides the Member States with the possibility to control the prices of alcohol and hence choose their level of health protection by setting the excise duties. The Scottish government provided explanations in the Regulatory Impact Assessment in page 46 of why the taxation alternative was not considered as the best option.

The Commission would like to address them accordingly at the same time stressing that raising of alcohol duties is probably the more suitable measure:

1) As regards the statements that the increase of duties will affect all alcohol on the market and not only cheap alcohol and will also affect the on-trade sales, the Commission would like to note that the objective of the measure at issue is to reduce overall drinking that is shown by the chosen level of the minimum price that will affect 73%/66% of the off-trade market. Accordingly, the raising of duties option seems to be the most suitable to achieve that goal without providing any adverse effects on competition. Furthermore, the negative effects on the on-trade market can be reduced by adjusting the taxation system accordingly.

2) The Scottish authorities also claimed that increases in taxation of alcohol will not necessarily result in a proportionate or indeed any increase in the price of alcohol, as alcohol tax and duty increases are not always reflected in the price the consumer pays as some retailers engage in below cost selling to varying extents.

To this effect, it could be mentioned that the second study of RAND 2012 carried out for the Commission examined to what extent changes in alcohol taxes are passed through to consumer prices. The findings indicate that changes in consumer prices depend to a large extent on reactions in the retail sector. Sufficient data for analysis was available from four countries. The pass-through is full when for example a €1.00 increase in excise duty for a product is associated with a €1.00 increase in the consumer price (or a duty reduction is similarly associated with a drop in the price). More than full pass-through means that the price increases more than that needed to cover the duty raise. Less-than full pass-through means the price increases less, as retailers cover the tax raise from other sources. In the countries studied, pass-through in the off-trade for changes in beer duties was less than full in two cases, and more than full in two cases. There was similar variation in the pass-through for changes in spirits duties. Comparison between off-trade and on-trade was possible for one country: there was no marked difference in between off-trade and on-trade was possible for one country: there was no marked difference in the pass-through for beer, but for spirits the pass-through was more than full in off-trade and less than full in on-trade.

Hence, the Commission would like to note it is not definite that the rise in prices will not be passed through as showed by the examples.

Furthermore, in the case Commission v Hellenic Republic (C-216/98) the Court addressed that question stating that "The ability of manufacturers and importers not to pass on increases in excise duty on their products is in any event limited by the extent of their profit margin, with the result that excise duty increases are sooner or later incorporated in retail selling prices".

3) According to the Scottish authorities, the Regulatory Impact Assessment observes that increase in duties will not affect the low-priced products because Directives 92/83/EEC and 92/84/EEC make provision for minimum rates of excise duty on alcohol and specify methods for calculating the rate of duty. These Directives mean a rate of duty for wine needs to be based on the range of the alcoholic strength of each particular wine, rather than on the actual alcoholic strength of the wine and so prevent there being a scheme of taxation levied on a unit of alcohol.

The Commission observes that the Directives at issue provide a degree of discretion to the Member States (but at the same time observing the minimum rates) to allow them to formulate their alcohol fiscal policies. In addition, it has to be observed that in the Regulatory Impact Assessment the Scottish authorities claim that in determining the effect of the measure by modelling, the modelling does not distinguish by different types or strengths of products within a category.

To that effect, the increase of excise duty appears to be a better option to reach the goals sought.
Moreover, there are other additional measures which the Scottish Government could adopt. For instance, according to information available health related harms are concentrated in particular areas of Scotland. Measures which are specifically targeted at these areas are likely to be more effective than measures aimed at the total population.

Following the above observations the Commission concludes that the draft at issue may create obstacles to the free movement of goods within the internal market contrary to article 34 TFEU and appears to be disproportionate under article 36 TFEU. The UK authorities are invited to abstain from adopting the draft legislation at issue.

For these reasons, the Commission delivers a detailed opinion provided for in Article 9(2) of Directive 98/34/EC to the effect that the draft regulation in question would be in breach of Article 34 TFEU were it to be adopted without giving due consideration to the above remarks.

The Commission would like to remind the UK Government that under the terms of Article 9(2) of the above mentioned Directive 98/34/EC, the delivery of a detailed opinion obliges the Member State which has drawn up the draft technical regulation concerned to postpone its adoption for six months from the date of its notification.

This deadline therefore comes to an end on 27 December 2012.

The Commission further draws the attention of the UK Government to the fact that under this provision the Member State which is the addressee of a detailed opinion is obliged to inform the Commission of the action which it intends to take as a result of the opinion.

Should the text of the draft technical regulation under consideration be adopted without account
being taken of the above-mentioned objections, the Commission may be compelled to send a
being taken of the above-mentioned objections, the Commission may be compelled to send a letter of formal notice pursuant to Article 258 of the Treaty on the Functioning of the European Union. It also reserves the right to send a letter of formal notice should it not have received the response of the UK Government by the time of adoption of the draft technical regulation in question.

The Commission invites the UK Government to communicate to it on adoption the definitive text of the draft technical regulation concerned. Failure to communicate this text would constitute an infringement of Article 4, paragraph 3 of the Treaty on the European Union as well as of Article 8(3) of Directive 98/34/EC, in respect of which the Commission reserves the right to take proceedings.

Catherine Day General Secretary European Commission
Contact point Directive 98/34 Fax: (32-2) 296 76 60 email: