ALEC - A Blunder Down Under

ALEC 1975 By Laws

ARTICLE II

PURPOSES

Section 2.01 The purposes and objectives of ALEC shall be to work in cooperation will the private sector to promote individual liberty, limited government and free enterprise.

To achieve such goals ALEC shall:

1. Assist legislators in the states by sharing research information and staff support facilities:

2. Establish a clearinghouse for bills at the state level, and provide for a bill exchange program;

3. Disseminate model legislation and promote the introduction 'of companion bills in Congress and state legislatures;

4. Improve communications between state legislators and Members of congress;

5. Formulate legislative action programs;

6. Strengthen the position of state and local government relative to the federal governments; and

7. Develop liaison with legislators in other countries on problems of mutual Concern.

Nothing there about international stuff..

2010 ALEC Audited Financials

1.  Organization and Summary of Significant Accounting Policies

Organization

The American Legislative Exchange Council (ALEC) is a non-profit educational entity incorporated in December 1975, under the laws of the States of Illinois.  Its mission is to assist State Legislators, Members of Congress, and the general and business public by sharing research and educational information.  These activities are funded primarily through sponsorships and contributions from the private sector and membership dues.

Nothing there about international stuff..

From the cover of the ALEC 2011 report - The State Legislators Guide to Repealing ObamaCare

The American Legislative Exchange Council (ALEC) is the nation’s largest nonpartisan individual membership association of state legislators, with nearly 2,000 members across the nation and more than 100 alumni members in Congress. ALEC’s mission is to promote free markets, limited government, individual liberty, and federalism through its model legislation in the states.

Nothing there about international stuff..

2012 Mission Statement

Mission Statement

The American Legislative Exchange Council’s mission is…

To advance the Jeffersonian Principles of free markets, limited government, federalism, and individual liberty through a nonpartisan public-private partnership among America’s state legislators, concerned members of the private sector, the federal government, and the general public.

To promote these principles by developing policies that ensure the powers of government are derived from, and assigned to, first the People, then the States, and finally the Federal Government.

To enlist state legislators from all parties and members of the private sector who share ALEC’s mission.

To conduct a policy making program that unites members of the public and private sector in a dynamic partnership to support research, policy development, and dissemination activities.

To prepare the next generation of political leadership through educational programs that promote the principles of Jeffersonian democracy, which are necessary for a free society.

Nothing there about international stuff..

Enough – enough

Nothing there about international stuff - you get it

Just had to make my point

I never know where I am going to end up when I start researching – today it was five hours of work and a mini-thesis.  But that’s what the universe gave me today.

So grab a cup of coffee – if you are so disposed and read a lot about a little story down under.

Today while doing research on something else I ran into the American Legislative Exchange Council and Australia - again  - and that meant it was time to write about it.

This is a two year saga - 2010 and 2011

Yep – Australia.

ALEC’s “newly-formed International Relations Task Force” came about "just in time" to interfere with Australia's plain packaging of tobacco products..

In 2010 Australia was considering the :

Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill – Bill 2009, which is currently pending before the Community Affairs Legislation Committee.

In 2010 Australia was exploring the possible legislation that would introduce plain packaging:

What is plain packaging?

Plain packaging, also known as generic, standardised or homogeneous packaging, refers to packaging that has had the attractive promotional aspects of tobacco product packaging removed and the appearance of all tobacco packs is standardised. Except for the brand name (which would be required to be written in a standard typeface, colour and size), all other trademarks, logos, colour schemes and graphics would be prohibited. The package itself would be required to be plain coloured (such as white or brown) and to display only the product content information, consumer information and health warnings required by law.1

What plain packaging looks like.

The report I read went on to say that:

The current position Plain packaging has not yet been put into effect in any jurisdiction, although it was first proposed by the Canadian government in the 1990s. Legislation is currently being considered by the Australian Government for introduction in 2012 and other governments, such as New Zealand, have expressed an interest in introducing a similar ban. In the UK, the Government’s tobacco control plan2, published in March 2011, included a commitment to consult on plain packaging during 2011, to determine “whether the plain packaging of tobacco products could be effective in reducing the number of young people who take up smoking and in supporting adult smokers who want to quit”. Plain packaging has been supported by the (former) Chief Medical Officer and many other experts and international bodies3. The European Commission is exploring the merits of introducing plain packaging as an amendment to the Tobacco Products Directive.4,5

Similar legislation has been or will be considered in/by

Canada, Australia, New Zealand, UK, European Commission  ... 

Also Belgium, Turkey and France from another study

BUT – NOT in the US.

Haven’t heard about pending legislation in the US have you????

Why – because this is where ALEC lives and works behind the scenes and out of the eye of the general public.

As a matter of fact in the August 5, 2010 minutes of the the ALEC International Relations Task Force found on the Common Cause webpage you will find this legislation proposed – look at the submission person!

        Resolution Urging Congress to Pass a Ban on “Plain Packaging”

        Submitted by: Ms. Brandie Davis (Philip Morris International)

AND – they had the chutzpah to send the version “subsequently approved by the Board of Directors”  to the Australian government and the final title?

        Resolution Urging the Obama Administration to Protect
        Intellectual Property Rights and Oppose Plain Packaging
        Initiative Proposed by Trading Partners Worldwide.

A little history – this is not the first time ALEC has been involved in tobacco wars.  They are/were a major mover and shaker for the tobacco industry, since the mid 1990's with the tobacco settlements and on to today.

Why was ALEC messing around in Australia?

2010

In February 2010 - then national Chair – Tom Craddick  wrote a letter on ALEC letterhead to the Senate Standing Committee on Community Affairs - Parliament House - Canberra ACT 2600 Australia [sic]

I am using this letter for snips – because when compared to another ALEC letter written a year later  - this one is more true to the ALEC agenda – whereas the 2011 letter is much more cautious in the way that they word the letter.

This is a significant loss to our private sector members who hold IP rights that are significant assets for their companies. Their logos allow consumers to differentiate between their products and materially inferior ones, and their trademarks protect the reputation of their products. Because of the importance of the trademark in doing business, the protection of the IP rights of our private sector members is a priority for us, and our newly-formed International Relations Task Force committed early on to working on this issue at the international level.

Oh – significant loss to ALEC private/profit sector members.

Protection of the rights of ALEC private/profit  sector members

BUT – according to another Australian report Craddick’s whining about IP right for ALEC private sector members is unfounded:

As explained at the seminar and expanded on in an article in the Australian Intellectual Property Law Bulletin, governments are permitted to amend their intellectual property laws to protect public health. Plain packaging does not equate to acquiring the intellectual property of tobacco companies. Governments do not intend to use the logos and tobacco companies will still maintain full rights to their logos and brand imagery; they will simply no longer be able to use these marketing tools on cigarette packages.[120]

So – evidently – ALEC is just making sure they are there for their private/profit sector members – whether they need to be or not.

Back to Craddick 

There is no meaningful evidence that plain packaging leads to a reduction in the initiation of tobacco use, overall tobacco consumption or quitting relapses. This conclusion is supported by a series of studies conducted by Dr. Jorge Padilla and Dr. Nadine Watson, “A Critical Review of the Literature on Generic Packaging for Cigarettes” (November 18, 2008). There is, however, evidence suggesting that Bill 2009 could lead to an increase in tobacco use.

“an increase in tobacco use”

But wouldn’t that be a good thing for ALEC’s profit sector members?

Wouldn’t it?

Nope, cause here’s ALEC’s concern:

The brown matte packaging and standard typeface mandated in this bill, would likely occasion an uptick in counterfeit cigarettes, as it is easier to manufacture “plain-packaged” products.

Counterfeit cigarettes?

Does that mean that someone would produce a cigarette that is not a cigarette and sell it as a cigarette?

Fake cigarette – filled with what – oregano?  I think people would figure it out and not buy that brand again.

Counterfeit – isn’t that just an imitation – isn’t that just a new brand – wouldn’t that the  infamous ALEC  free market at work?

Is Craddick suggesting  that the Australian government is so dumb it would not be able to regulate their own cigarette industry?

In Australia – counterfeit cigarettes are referred to as “illicit tobacco products” and as you can see , we’re not talking a huge loss of market here:

the Government’s National Drug Strategy Household Survey in 2007[136] found that only 0.2% of Australians — that equates to 1.2% of current smokers—used illicit tobacco products half the time or more. Even allowing for illicit users smoking somewhat more than average, this would make illicit tobacco about 2–3% of the total market—

So, ALEC is just making sure they are there for their private/profit sector members – whether they need to be or not.

But then 2- 3 % loss of revenues by ALEC profit/private sector members might lead to a reduction in “sponsorships and contributions from the private sector and membership dues” for ALEC.

Nope not really.  Here’s the issue - Back to Craddick

The competition from contraband cigarette companies as well as an inability to differentiate their products from others on the market will force legitimate tobacco companies to lower their prices.

Oh, yeh – PROFIT.

After all ALEC is commenting on behalf of their profit sector members.  That is the ONLY reason they are making a case before the Australian government is on behalf of their profit sector members.

BUT again – other sources note there is no proof to support this

This would occur due to reduced product differentiation and the entry of unbranded products. The Europe Economics study by contrast predicted that prices would fall only for premium brands, with growing and niche brands likely to be hit the hardest. Little information is available internationally about what happens to consumption of tobacco products when prices fall. This has been a rare occurrence over the past four decades.

Again, ALEC is just making sure they are there for their private/profit sector members – whether they need to be or not

2011

MAY 2011  ( I tried – but I can’t find the actual report released in Australia – but, I did find a one page article in the May 2011 issue of Inside ALEC that has the exact phrases shown in the article below.  “Plain Packaging: A Government Seizure of a Company’s Most Valuable Asset”)

From: The Australian May 28, 2011

This week a US think tank, the American Legislative Exchange Council, published a paper claiming the move "threatens to dismantle over a century of international intellectual property rights protections". It raises the spectre of counterfeiting and piracy.

"Although this ill-considered legislation targets tobacco packaging, the alarm over the policy relates to the effects it will have on international intellectual property rights and protections," the paper reads. "Australia's plain packaging policy will send the wrong message to the developing world where IP co-operation is already difficult to obtain."

JUNE

In June 2011 a letter was sent by the past ALEC chair Noble Ellington to Assistant Secretary, Drug Strategy Branch - Attention: Tobacco Reform Section - Department of Health and Ageing - Canberra, ACT 2606 Australia opposing “Tobacco Plain Packaging Bill 2011”

This letter by Ellington sounds less like a lobbying letter and nowhere does he use the phrases that were found in the Craddick letter.  The language is more sterile – ambiguous about intent while being direct in content.

It is possible that after a year of feedback – they realized people were not reacting well to ALEC’s interference in Australia .  But he still does spend a lot of time on the hysteria of IP and trademark protection – which they probably have found is the only thing that they can write about.

But wouldn’t what Craddick proposed in his ALEC letter  be lobbying?

Well Craddick says in the opening sentence that he is:

On behalf of the American Legislative Exchange Council (ALEC), I respectfully submit these comments

Oh, yeh – comments

Respectfully submitted comments

– that’s not lobbying, right?

But the closing paragraph Craddick says this:

While ALEC understands the motivations behind the Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill, we believe that it will undermine the international system of intellectual property rights protections setting in motion a precedent that could ultimately devitalize the free market system while aggravating the very problem it purports to address.

Which seems to fit Australian law regarding the definition of lobbyist:

Lobbying activities means communications in an effort to influence Government decision-making.

That is what this seems like to me – lobbying

BUT

Oh, yeh –

ALEC is a U.S. nonprofit and nonprofits in Australia are “not considered a lobbyist under the Lobbying Code and are not required to register” [as lobbyists]

Or they could be viewed as a “Members of foreign trade delegations” which also aren’t considered lobbyists in Australia.

And ALEC has members in Australia.

So folks, the moral of the story -

ALEC’s stated mission might be

promote free markets,

limited government,

individual liberty, and

federalism through its model legislation in the states.

But it appears their real mission is

      promoting ALEC private sector member PROFITS.

And the rest of the world doesn’t like ALEC “butting” into international affairs

– as demonstrated by a letter sent by the Physicians for a Smoke-free Canada to the Assistant Secretary, Drug Strategy Branch - Attention: Tobacco Reform Section - Department of Health and Ageing - CANBERRA, ACT 2601

You may also find it helpful to regard with healthy suspicion lobbying opposed to the plain packaging initiative from sources apparently independent of the tobacco industry. Frequently, such sources are not independent at all, but avatars of the tobacco industry. Here is an example. It was reported in The Australian of May 28, 2011 that the American Legislative Exchange Council (ALEC) “threatens to dismantle over a century of international intellectual property rights protections.” ALEC arguments have no basis in fact. Moreover, ALEC is not very far removed from the tobacco industry. Representatives of two American tobacco companies are members of its Private Enterprise Board of Directors.

And yes,

Australia doesn’t appreciate the interference of ALEC in their politics.

And at least one Australian legislator, Christine Milne was willing to speak out before the bill passed!

I think that it is much more interesting to look at the wholesale adoption by Senator Bernardi of the policy agenda of the extreme US radical Right and the policies that he brings to the coalition in Australia.

Disgraced Liam Fox was a former minister in the UK who was forced to resign because of his association with a Mr Werritty. Mr Werritty was one member of the American Legislative Exchange Council. It is fascinating to see that the Australian representative of the American Legislative Exchange Council is none other than Senator Bernardi. The American Legislative Exchange Council is backed by big oil, big tobacco, the National Rifle Association, the climate change deniers and the defence hawks in the US.

I note with interest than on 2 June this year the American Legislative Exchange Council wrote to the Department of Health and Ageing opposing plain packaging and making a strong case, on behalf of big tobacco, against plain packaging. Among the people they copied it to was none other Senator Bernardi, their Australian representative. You have to wonder about the extent to which Senator Bernardi has adopted their agenda and, indeed, the agenda of another US right-wing radical organisation, none other than the Heartland Institute. We recall that Senator Fielding went across to the US at the expense of the Heartland Institute and came back and told us that global warming was not real and was to do with solar flares et cetera.

And yes – if you prefer hearing it - she is still speaking out about ALEC.

Australia doesn’t appreciate the interference of ALEC in their politics.

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Oh yeh – the continuing saga of the ALEC plain packaging story:

November 2011

Parliament Passes World First Plain Packaging of Tobacco Legislation

The Australian Parliament has passed the Australian Government’s world-leading tobacco plain packaging legislation, meaning all tobacco products sold in Australia will need to be in plain packaging from 1 December 2012.

November 2011

Cigarette giant Philip Morris sues Australian government for billions over plain packaging law

The Australian government is facing a lawsuit that could cost billions after tobacco giant Philip Morris instigated legal action over the incoming law forcing cigarettes to be sold in plain packaging.

The controversial law, which comes into effect from late next year, is being closely watched by other governments in Europe, Canada and New Zealand as they consider similar moves.

But the legislation change has angered tobacco firms who are worried that it may set a global precedent and by infringing on trademark rights as all images and logos are wiped off the packets. 

April 2012

Australia tobacco plain packaging case in court 

The world's biggest tobacco firms are challenging the Australian government in court over a law on mandatory plain packaging for cigarettes.

The suit, led by British American Tobacco, is being watched around the world as a test case.

Australia last year passed legislation requiring all tobacco to be sold in plain packets with graphic health warnings from 1 December 2012.

It is the first country to pass such stringent packaging legislation.

The proceedings, being heard before the High Court in Canberra, are scheduled to run until Thursday. It is not clear when a decision might be reached.

And I’m sure the American Legislative Exchange Council will find a way to stick their nose into Australia's business again and probably file an amicus brief in the lawsuit.

UPDATE - August 15, 2012

By ROD McGUIRK

updated 8/15/2012 12:22:56 AM ET

CANBERRA, Australia — Australia's highest court upheld the world's toughest law on cigarette promotion on Wednesday despite protests from tobacco companies that argued the value of their trademarks will be destroyed under new rules that will strip all logos from cigarette packs.

The decision by the High Court means that starting in December, tobacco companies will no longer be able to display their distinctive colors, brand designs and logos on cigarette packs.