Regulatory Chill: Learnings From New Zealand’s Plain Packaging Tobacco Law

Abstract

Australia’s precedent-setting Tobacco Plain Packaging Act 2011 (Cth) took two and a half years from its public announcement to come into force. The fact that New Zealand’s almost identical legislation was still not in force six years after it was first mooted suggests it was subject to regulatory chill through both specific threats and systemic influences within the policy making process. This article examines the hypothesis that three elements associated with New Zealand’s free trade and investment treaties combined to chill a National government that was already luke-warm on a plain packaging law: perceived risks from litigation; associated arguments pressed by politically influential industry lobbyists; and the bias in the regulatory management regime that favours minimal intervention and empowers the tobacco industry, consistent with contemporary trade agreements. It concludes that these mutually reinforcing factors delayed the passage of New Zealand’s legislation, but did not see it abandoned. This suggests that health policies supported by public opinion, international health obligations, and precedents from other countries can withstand regulatory chill. But the difference from Australia also highlights the need to pay more attention to ways of neutralising those factors if a Smokefree Aotearoa New Zealand, and similarly ground-breaking public health policies, are to be achieved.