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

Published online by Cambridge University Press:  06 January 2021

Mark A. Levin
Mark A. Levin*
Affiliation:
William S. Richardson School of Law
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Extract

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

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Article
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American Journal of Law & Medicine , Volume 39 , Issue 2-3 , June 2013 , pp. 471 - 489
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Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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References

1 MICK JAGGER & KEITH RICHARDS, You Can't Always Get What You Want, on LET IT BLEED (London Records 1969).

2 Levin, Mark A., Smoke Around the Rising Sun: An American Look at Tobacco Regulation in Japan, 8 STAN. L. & POL’Y REV. 99 (1997)Google Scholar. My ongoing appreciation goes to James Sterngold of The New York Times for first introducing to me how Japan's heavy smoking rates and high consumption were intended results of government policy choices and not merely cultural anomalies. Sterngold, James, When Smoking is a Patriotic Duty, N.Y. TIMES, Oct.17, 1993, at C1Google Scholar.

3 Tabako jigyō hō [Tobacco Business Act], Law No. 618 of 1984 (Japan). In 1993, the Japanese Supreme Court upheld the constitutionality of the economic restrictions established by the Tobacco Business Act. Saikō Saibansho [Sup. Ct.] June 25, 1993, Hei 3 (gyotsu) no. 148, N.B (Japan). The law has been given a variety of titles in translation by myself and others; the choice here is drawn from Japan's Ministry of Justice. Japanese Law Translation, JAPANESE LAW TRANSLATION, www.japaneselawtranslation.go.jp (last visited Mar. 23, 2013).

4 Levin, supra note 2, at 100.

5 The most important legislation in this regard was Article 25 of the Health Promotion Act of 2002. See Levin, Mark A., Tobacco Industrial Policy and Tobacco Control Policy in Japan, 6 ASIAN-PAC. L. & POL’Y J. 44, 49-54 (2005)Google Scholar (extensively detailing the political dynamics leading up to the enactment of Article 25); infra text accompanying notes 47-49; see also Feldman, Eric A., The Culture of Legal Change: A Case Study of Tobacco Control in Twenty-First Century Japan, 27 MICH. J. INT’L L. 743, 775-78 (2006)Google Scholar; Mary Assunta Kolandai, The Tobacco Industry in Japan and Its Influence on Tobacco Control 259-65 (Aug. 2007) (unpublished Ph.D. dissertation, University of Sydney), available at http://tobacco.health.usyd.edu.au/assets/pdfs/AssuntaPhD.pdf.

6 WHO Framework Convention on Tobacco Control, opened for signature, June 16, 2003, 2302 U.N.T.S. 166 [hereinafter WHO FCTC]. Japan signed the FCTC in March 2004 and approved it in June of that year. TOBACCO PROBLEMS INFORMATION CENTER (TOPIC), JAPAN: FACTS ABOUT TOBACCO 20 (2010) [hereinafter, TOPIC REPORT, 2010 ed.]. In an important work, Drs. Mary Assunta and Simon Chapman have precisely documented the Japanese government's efforts to weaken FCTC provisions during the treaty development process. See generally Assunta, Mary & Chapman, Simon, Health Treaty Dilution: A Case Study of Japan's Influence on the Language of the WHO Framework Convention on Tobacco Control, 60 J. EPIDEMIOLOGY & COMMUNITY HEALTH 751 (2006)Google Scholar. See also Kolandai, supra note 5, at ch. 7.

7 TOBACCO INST. OF JAPAN, NENDOBETSU HANBAI JISSEKI ITEN ICHIRAN [LIST OF TOBACCO SALES DATA BY YEAR] (Japan), available at http://www.tioj.or.jp/data/pdf/120420_01.pdf.

8 Id. In per capita consumption, this equates to 1780 cigarettes per year (population fifteen years and older).

9 MINISTRY OF HEALTH, GOV't OF JAPAN, KITSUEN TO KENKŌ [SMOKING AND HEALTH] 268 (1st ed. 1987) (historical consumption figures, 1960-1992). Per capita consumption in 1968 was 2560 cigarettes per year (population fifteen years and older). Id. Thus, in light of the intervening population growth, 2012 figures represent a 30% drop in per capita consumption.

10 JAPAN TOBACCO INC., ANNUAL REPORT 2012, at 173 (2012), available at http://www.jt.com/investors/library/annual_report/pdf/annual2012_E_partition04.pdf; Levin, supra note 2, at 99 n.10 (citing Kitsuen jinkō wa 3,491 man nin [Smoking Population is 34,910,000], TABAKO SANGYŌ, Nov. 1, 1995, at 1 (1995 figures)). Of course, serious problems remain. For example, the latest Ministry of Health survey figures on young adult smoking suggest that progress in reducing consumption has stalled. MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN, KOKUMIN KENKŌ EISEI CHŌSA [NATIONAL HEALTH AND WELLNESS SURVEY] (2011) [hereinafter NATIONAL HEALTH AND WELLNESS SURVEY 2011], available at http://www.mhlw.go.jp/bunya/kenkou/kenkou_eiyou_chousa.html (last visited Mar. 23, 2013); MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN, KOKUMIN KENKŌ EISEI CHŌSA [NATIONAL HEALTH AND WELLNESS SURVEY] (2010), available at http://www.mhlw.go.jp/bunya/kenkou/kenkou_eiyou_chousa.html.

11 See infra Section III.B.

12 In a November 2011 nationwide survey inquiry on exposures to secondhand smoke in the previous month, respondents experiencing clean air (i.e., no exposures or only minimal exposure) were 80.3% at home, 59.5% in the workplace, and 78.8% in restaurants and bars. NATIONAL HEALTH AND WELLNESS SURVEY 2011, supra note 10, at 13. For government and medical offices, over 98% of respondents reported no or only minimal exposures. Id.; see also explanation and discussion infra note 92 and accompanying text.

13 Paul Rincon, Higgs Boson-Like Particle Discovery Claimed at LHC, BBC NEWS, July 4, 2012, http://www.bbc.co.uk/news/world-18702455. Apparently, confirmation of the discovery cost Professor Stephen Hawking $100 in a lost wager. Id.

14 Levin, supra note 5, at 58-59.

15 Japanese law obligates the Minister of Finance to maintain at least one-third ownership of all issued shares. Nihon tabako sangyō kabushiki kaisha hō [Act on Japan Tobacco Inc.], Law No. 89 of 1984, art. 2 (Japan). The law's minimum ownership level was amended from over 50% mandated ownership to over one third mandated ownership in April 2004. The government maintained its holdings over 50% until March 2013, owing to political economics for tobacco agricultural interests and pragmatic market pricing circumstances. In the spring of 2013, the government sold down to one-third ownership, raising approximately $7.8 billion for reconstruction costs of the 2011 triple disaster in Tohoku. Tom Brennan, S&C, Simpson on $7.8 Billion Japan Tobacco Share Sale, ASIAN LAWYER (Mar. 21, 2013), http://www.americanlawyer.com/PubArticleAL.jsp?id=1202592994143&SC_Simpson_on_78_Billion_Japan_Tobacco_Share_Sale&slreturn=20130312182647. For a deeper history of Japan Tobacco, its nationalized predecessors, and privatization dynamics, see Levin, supra note 2; Levin, supra note 5.

16 See generally Levin, supra note 2; Levin, supra note 5.

17 WORLD HEALTH ORG., FIFTH SESSION OF THE CONFERENCE OF THE PARTIES TO THE WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL: LIST OF PARTICIPANTS 8 (2012), available at http://apps.who.int/gb/fctc/PDF/cop5/FCTC_COP5_DIV1_Rev1.pdf.

18 “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.” WHO FCTC, supra note 6, at art. 5.3; see also WORLD HEALTH ORG., GUIDELINES FOR IMPLEMENTATION 12 (2011), available at http://whqlibdoc.who.int/publications/2011/9789241501316_eng.pdf (“Parties should ensure that representatives of State-owned tobacco industry do not form part of delegations to any meetings of the Conference of the Parties, its subsidiary bodies or any other bodies established pursuant to decisions of the Conference of the Parties.”).

19 The Ministry of Health, Labour and Welfare was represented by three of the seven delegates, including the deputy chief delegate, Dr. Yumiko Mochizuki, who is surely the most knowledgeable official in the Japanese government concerning tobacco control. Nevertheless, the chief delegate was dispatched from the Ministry of Foreign Affairs, and the one remaining delegate was from the National Fire and Disaster Management Agency. WORLD HEALTH ORG., supra note 17, at 8.

20 MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN, REPORTING INSTRUMENT OF THE WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL 23 (2012) [hereinafter GOJ FCTC Report 2012]. At the sub-national level, Kanagawa Prefecture enacted a limited ordinance in 2009 and this was replicated by Hyogo Prefecture in 2012. These are the only smoke-free mandates legislatively enacted in the entire nation. Compare infra text accompanying notes 68-72, with infra text accompanying note 47 (paying particular attention to Article 25's non-binding terms).

21 Stella Aguianaga Bialous et al., Courtesy and the Challenges of Implementing Smoke-Free Policies in Japan, 8 NICOTINE & TOBACCO RESEARCH 1 (2006). They also expose efforts by U.S. tobacco industry executives to bribe “one of Japan's most powerful political insiders and a close confidant of then Prime Minister Yasuhiro Nakasone.” Levin, Mark, Lighting Up the Foreign Corrupt Practices Act: A Case Study of U.S. Tobacco Industry Political Influence Buying in Japan, 34 N.C. J. INT’L L. & COM. REG. 471, 473 (2009)Google Scholar.

22 Pu-ro-fi-ru [Profile], KOMIYAMA YŌKO OFFICIAL WEBSITE, http://komiyama-yoko.gr.jp/main/?page_id=144 (last visited Apr. 9, 2013) (Japan).

23 Shokuba no jyudō kitsuen bōshi wa “jigyōsha no gimu”: kōrōshō kentōkai ga hōkokusho [Workplace Passive Smoking Prevention “An Obligation for Employers”: Ministry of Health and Labor Study Group Report], SANKEI SHIMBUN (Japan), Apr. 28, 2010.

24 Jyudō kitsuen bōshi taisaku “dōryoku kitei” ni [Efforts to Prevent Passive Smoking Regulations], MAINICHI SHIMBUN (Japan), April 24, 2012.

25 Himawari news [Blog], KOMIYAMA YŌKO OFFICIAL WEBSITE, http://komiyama-yoko.gr.jp/main/?cat=5 (last visited April 9, 2013) (Japan).

26 For example, the WHO MPOWER initiative, launched in 2008, presents “a package of the six most important and effective tobacco control policies;” Monitor tobacco use and prevention policies, Protect people from tobacco smoke, Offer help to quit tobacco use, Warn about the dangers of tobacco, Enforce bans on advertising, promotion, and sponsorship, and Raise taxes on tobacco. WORLD HEALTH ORG., WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC 8-10, 2008: THE MPOWER PACKAGE (2008).

27 MINISTRY OF FINANCE, GOV't OF JAPAN, SEIZŌ TABAKO NI KAKARU KŌKOKU WO OKONAU SAI NO SHISHIN [GUIDELINES FOR CARRYING OUT ADVERTISING CONCERNING TOBACCO PRODUCTS] (2004).

28 For example, a recently purchased package of Marlboro Ultra Lights presents in 3-mm print on the front side: “Smoking becomes a risk factor for lung cancer for you. [Then in 2-mm print:] According to epidemiological statistics, mortality from lung cancer becomes 2-4 times greater for smokers than non-smokers. (For details, please see the home page of the Ministry of Health, Labour and Welfare, http://www.mhlw.go.jp/topics/tobacco/main.html.)” And in 4-mm print on the rear side: “The degree varies from person to person but, smoking becomes addictive owing to nicotine.” But see Health Effects – Death, TOBACCO LABELING RESOURCE CENTER, http://www.tobaccolabels.ca/healthwarningimages/theme/health_effects_death (last visited Mar. 20, 2013) (exhibiting a variety of bold, graphic health warning images with large text warnings (e.g. “SMOKING KILLS”) seen on cigarette packages in various countries). See generally CANADIAN CANCER SOC’Y, CIGARETTE PACKAGE HEALTH WARNINGS (3d ed. 2012), available at http://global.tobaccofreekids.org/files/pdfs/en/WL_status_report_en.pdf (discussing various national requirements for warnings on cigarette packages).

29 “Persons carrying out advertising relating to tobacco products shall give consideration to the prohibition of smoking by minors and to the connection between the consumption of tobacco products and health, while making efforts that their advertising not be excessive.” Tabako jigyō hō [Tobacco Business Act], supra note 3, at art. 40; see also MINISTRY OF FINANCE, supra note 27. The guidelines include a major loophole explicitly allowing “advertisements that advocate smoking prevention in minors, smoking etiquette, and corporate activities to discourage smoking.” Tabako jigyō hō [Tobacco Business Act], supra note 3, at art. 40 para. 4; see also Levin, supra note 2, at 100; TOPIC REPORT, 2010 ed., supra note 6, at 10; GOJ FCTC Report 2012, supra note 20, at 33.

30 JAPAN TOBACCO INC., supra note 10.

31 Id.

32 Id.

33 The increase enacted in January 2003 was the first time that an increase was explicitly justified in the name of reducing tobacco consumption. Levin, supra note 5, at 63-64.

34 JAPAN TOBACCO INC., supra note 10, at 174.

35 In yet another demonstration of the “tobacco industry scream test,” opponents expressed themselves with strident vehemence. See, e.g., Tairon: tabako ippaku sen-en no zehi [Debate: the Pros and Cons of 1000 Yen Per Pack of Cigarettes], HOKKAIDO SHIMBUN (Japan), July 20, 2008 (Dokkyo Univ. Professor Takurō Morinaga versus Representative Seiji Maehara). Among Professor Morinaga's arguments in opposition to a tax increase was a claim that Adolf Hitler had been reported as the first advocate of a smoke-free national policy. In another writing, Professor Morinaga, a “JT official-turned economist,” assailed a tax increase as an “act of violence” against smokers and “anti-smoking fascism.” Maya Kaneko, Lawmakers Seek Sweet Spot in Tobacco Tax Debate, JAPAN TIMES (July 11, 2008), http://www.japantimes.co.jp/news/2008/07/11/news/lawmakers-seek-sweet-spot-in-tobacco-tax-debate/#.UTKxSDB23YQ. But see Mark A. Levin, Supporting a Tobacco Tax Hike, JAPAN TIMES, (July 20, 2008), http://www.japantimes.co.jp/opinion/2008/07/20/reader-mail/supporting-a-tobacco-tax-hike/#.UTKxXjB23YR (“Tobacco marketing is the real act of violence… . Every increment of advertising and business promotion that lures young people to smoke, or pulls back would-be quitters from freedom, injures and kills.”).

36 Tabako zōzei no hōkō de gōi, zaimu rōdō ryōsō [Health and Finance Ministers in Agreement on Tobacco Tax Increase], HOKKAIDO SHIMBUN, Dec. 4, 2008; LDP Rules Out Tobacco Tax hHike in Fiscal 2009, JAPAN TIMES (Dec. 12, 2008), http://www.japantimes.co.jp/news/2008/12/12/news/ldp-rules-out-tobacco-tax-hike-in-fiscal-2009/#.UTDyp6VmafR. It is unclear what transpired behind the scenes to bring about this sudden turnaround.

37 A prominent journalist at the time, Naoki Inose, presented himself as one of the most visible opponents to the proposed tax increase. Aiming to protect the “traditional Japanese cultures” of tobacco and alcohol, he had no qualms branding his opponents as fascists. Naoki Inose, Tairon: Zōzei subeki ka tabako [Debate: Should We Increase Tobacco Taxes?], SHIZUOKA SHIMBUN (Japan), Nov. 22, 2009 (“Being for consumers is the thinking of a market[-driven] society; to disagree with that is fascism.”). Yet as a sort of inverted specter of Michael Bloomberg in tobacco control policy, Inose also entered urban politics of one of the largest cities in the world. His strong opposition to smoke-free workplace laws was openly part of his campaign program. Regrettably, in December 2012, Mr. Inose handily won election to become the governor of Tokyo. Jun Hongo, Tokyo Gubernatorial Election a Three-Horse Race, JAPAN TIMES (Nov. 30, 2012), http://www.japantimes.co.jp/news/2012/11/30/national/tokyo-gubernatorial-election-a-three-horse-race/#.UTDysaVmafR; Inose Cruises to Victory in Tokyo Governor's Race, JAPAN TIMES (Dec. 17, 2012), http://www.japantimes.co.jp/news/2012/12/17/national/inose-cruises-to-victory-in-tokyo-governors-race/#.UUHq_Bxcha4.

38 Tobacco control advocates from civil society were actively engaged in this effort, which included a full-page advertisement run in national print media in November and delivering a petition with over 20,000 signatures. Interview with Manabu Sakuta, M.D., Chairman, Japan Society for Tobacco Control, in Honolulu, Haw.(Feb. 9, 2012).

39 JAPAN TOBACCO INC., supra note 10, at 174.

40 Health Side of Tobacco Tax, JAPAN TIMES (Sep. 27, 2011), http://www.japantimes.co.jp/opinion/2011/09/27/editorials/health-side-of-tobacco-tax/#.UTDyfaVmafR (proposed increase); Natsuko Fukue, DPJ Shelves Tobacco Tax Hike to Appease Opposition, JAPAN TIMES, Nov. 11, 2011, http://www.japantimes.co.jp/news/2011/11/11/national/dpj-shelves-tobacco-tax-hike-to-appease-opposition/#.UTDyhKVmafR.

41 See Pu-ro-fi-ru [Profile], supra note 22.

42 The DPJ's ouster also idled a legislative initiative by tobacco control advocates to reconstruct tobacco industry and tobacco control law and policy in Japan. In addition to the contemplated tax increase, their spring 2010 proposals set out a visionary road map for the future, including draft bills for structural reform of Japan Tobacco's ownership and transfer of administrative authority to the Ministry of Health, Labour and Welfare, and a genuinely comprehensive national smoke-free work-place law. See Tabako kisei 4 hōan seitei oyobi jyudō kitsuen bōshi hō seitei no seigan [Petition for Four Tobacco Control Laws and a Passive Smoking Protection Law], JAPAN SOC’Y FOR TOBACCO CONTROL, http://www.nosmoke55.jp/action/1006ban.html (last visited Feb. 22, 2013).

43 Lou Reed, What's Good, on MAGIC AND LOSS (Sire Records 1992). This song, where Reed hauntingly describes the experience of watching a loved one's suffering, is said to have been drawn in part from watching his friend and musical mentor Doc Pomus (Jerome Felder) die of lung cancer. Carmen, John, Legit Reviews: Lou Reed, VARIETY, May 6, 1992Google Scholar; Stephen Holden, Jerome (Doc) Pomus, 65, Lyricist for Some of Rock's Greatest Hits, N.Y. TIMES (Mar. 15, 1991), http://www.nytimes.com/1991/03/15/obituaries/jerome-doc-pomus-65-lyricist-for-some-of-rock-s-greatest-hits.html.

44 In technical terms, Japan became a party to the FCTC by approving the treaty with the same legal effect as ratification. Parties to the WHO Framework Convention on Tobacco Control, WORLD HEALTH ORG., http://www.who.int/fctc/signatories_parties/en/index.html (last visited Feb. 20, 2013). See generally United Nations Treaty Collection, Glossary of Terms Relating to Treaty Actions: 2. Acceptance and Approval, http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml (last visited Feb. 20, 2013).

45 See infra text accompanying notes 67-71.

46 In contrast, for example, to the comprehensive re-visioning of tobacco industry and tobacco control policy reflected in the 2010 proposals discussed, see supra note 42.

47 Kenkō zōshin hō [Health Promotion Act], Law No. 105 of 2002, art. 25 (Japan).

48 See generally Levin, supra note 5. Ms. Yoko Komiyama was instrumental in founding and building this organization. Thus, one can appreciate the excitement for tobacco control advocates in Japan when Ms. Komiyama first became Vice-Minister of Health, Labour and Welfare in September 2010 and then rose to Minister of Health, Labour and Welfare one year later. Conversely, one can appreciate the movement players’ disappointment following Ms. Komiyama's electoral defeat in 2012. See supra note 29; see also E-mail from Manabu Sakuta, M.D., Chairman, Japan Soc’y for Tobacco Control, to Mark A. Levin, Professor of Law, Univ. of Haw. at Mānoa William S. Richardson Sch. of Law (Jan. 8, 2013, 1:10 pm) (on file with author).

49 Levin, supra note 5, at 61-62.

50 WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, WORLD HEALTH ORG., HISTORY OF THE WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL 40-41 (2009), available at http://whqlibdoc.who.int/publications/2009/9789241563925_eng.pdf.

51 Id. at 27. In July 2003, I had the privilege to participate in a workshop in conjunction with the 12th World Conference on Tobacco or Health in Helsinki, Finland to support legislative advocacy capacity building for Japanese tobacco control leaders. My Japanese companions were cautiously optimistic with regards to moving Japan forward toward ratification, but certainly no one appeared confident of rapid success. Nevertheless, they achieved their goal in less than one year.

52 See generally Information Page About Tobacco and Health, MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN http://www.mhlw.go.jp/seisakunitsuite/bunya/kenkou_iryou/kenkou/tobacco/index.html (last visited Mar. 23, 2013).

53 For example, information on the FCTC is the top presentation of the Ministry of Health, Labour and Welfare's online tobacco information page, with over a dozen links to supporting documents and materials. Id.

54 See supra note 18 and accompanying text.

55 Another complete failure in Japan concerns Article 4.2(c). Despite the important presence of the Ainu, a people recognized as indigenous by the government of Japan, there appears to have been no measures taken to promote Ainu people's participation in tobacco control programs that are socially and culturally appropriate to their needs and perspectives. As best as I know, only one investigation has disaggregated epidemiological surveillance data to assess the impact of tobacco upon the Ainu community and, not surprisingly, uncovered substantially higher levels of tobacco smoking prevalence and use (number of cigarettes smoked per day). In particular, heavy smoking prevalence among Ainu women registered more than three times that of Japanese women overall. Hiromi Shinagawa & Rika Onodera, Health Risk Factors and the Present Situation, in HOKKAIDO UNIVERSITY CENTER FOR AINU AND INDIGENOUS STUDIES, CONDITIONS AND CONSCIOUSNESS OF PRESENT-DAY AINU 79-84 (Toru Onai ed., 2011). No such research efforts or data are reported. GOJ FCTC Report 2012, supra note 20.

56 WHO FCTC¸ supra note 6, at art. 5.2.

57 Id. at art. 11 and implementing guidelines. However, the current warnings are woefully inadequate and of questionable compliance with treaty obligations, particularly in light of the guidelines. See supra notes 28-28 and accompanying text.

58 WHO FCTC¸ supra note 6, at art. 12. Another mixed achievement is Japan's regular reporting pursuant to Article 21. The reports have been generally thoughtful, but one can question the accuracy, candor, and completeness of many of the responses provided. See, e.g., GOJ FCTC Report 2012, supra note 20.

59 For developments prior to 2003, see Levin supra note 5.

60 MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN LABOR STANDARDS BUREAU, NOTIFICATION NO. 0509001, SHOKUBA NI OKERU KITSUEN TAISAKU NO TAME NO GAIDORAIN NI TSUITE [GUIDELINES ON SMOKING COUNTERMEASURES IN THE WORKPLACE] (2003) (Japan). These were amended in 2010 to add the outdoor vicinities of building entryways as an important location for smoke-free policies. MINISTRY OF HEALTH, LABOUR & WELFARE, HEALTH SERVICES BUREAU, JYUDŌ KITSUEN BŌSHI TAISAKU NI TSUITE [CONCERNING PASSIVE SMOKING PREVENTION MEASURES] (2010) (Japan).

61 MINISTRY OF HEALTH, LABOUR AND WELFARE, GOV't OF JAPAN LABOR STANDARDS BUREAU, NOTIFICATION NO. 0513001, SHOKUBA NI OKERU KITSUEN TAISAKU NO TAME NO KYŌIKU NO JISSHI NI TSTUITE, [ABOUT IMPLEMENTING EDUCATION TO PROMOTE SMOKING COUNTERMEASURES IN THE WORKPLACE] (2004) (Japan).

62 Jyudō kitsuen bōshi taisaku no arikata ni kan suru kentōkai hōkokusho [Investigative Commission Report on the State of Passive Smoking Prevention Measures], JYUDŌ KITSUEN BŌSHI TAISAKU NO ARIKATA NI KAN SURU KENTŌKAI [INVESTIGATIVE COMMISSION ON THE STATE OF PASSIVE SMOKING PREVENTION MEASURES], Mar. 24, 2009 (Japan).

63 MINISTRY OF HEALTH, LABOUR AND WELFARE, HEALTH SERVICES BUREAU, NOTIFICATION NO. 0225/2, Feb. 25, 2010 (Japan); see also, e.g., Exposure to Tobacco Smoke, JAPAN TIMES (Mar. 12, 2010), http://www.japantimes.co.jp/opinion/2010/03/12/editorials/exposure-to-tobacco-smoke/#.UU4UXxlrVxU.

64 Penalty provisions in the contemplated legislation were withdrawn weeks after the proposal was officially raised, suggesting mandated smoke-free or divided smoking areas for most workplaces. In any case, the hospitality service sector would only be called upon to lower measurable exposures to tobacco smoke. See Shokuba no tabako ‘kitsuen shitsu igai dame’ gimuka-an bassoku wa miokuri [Proposal to Mandate Workplace Smoking to “No Smoking Outside Smoking Rooms,” Penalties Get Put Over], ASAHI SHIMBUN (Japan), Dec. 11, 2010. For a copy of the complete report, see MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN, RŌDŌ ANZEN EISEI HŌ NO ICHIBU WO KAISEI SURU HŌRITSU-AN YŌKŌ [OVERVIEW OF A PROPOSAL TO REVISE IN PART THE INDUSTRIAL SAFETY AND HEALTH ACT] (2011), available at http://www.mhlw.go.jp/stf/houdou/2r9852000001slsj-att/2r9852000001slu9.pdf.

65 In February 2000, numerical targets had been eliminated from the first generation of this report owing to pressure from pro-tobacco interests. See Levin, supra note 5, at 58.

66 MINISTRY OF HEALTH, LABOUR AND WELFARE, GOV't OF JAPAN, KENKŌ NIPPON 21 (DAI NI JI) (TABAKO) [HEALTHY JAPAN 21, 2ND GENERATION, TOBACCO], available at http://www1.mhlw.go.jp/topics/kenko21_11/pdf/b4.pdf; Program Targets 12% Smoking Rate, JAPAN TIMES (June 9, 2012), http://www.japantimes.co.jp/news/2012/06/09/national/program-targets-12-smoking-rate/#.UU8-rhlrVxU;.

67 According to Kashiwabara et al., over 100 cities had implemented anti-street-smoking ordinances by the end of 2009, infra note 69, at 1909. The trend may also be spreading in East Asia. Smoking on Seoul's lively Gangnam Street, a location made famous by the phenomenally popular online dance video, became banned from June 2012. Kim Rahn, Smoking to Be Banned Along Gangnam Street, THE KOREA TIMES (S. Kor.), Feb. 13, 2012.

68 The “sky is falling” reference is explained infra note 107.

69 KANAGAWA KEN KŌKYŌTEKI SHISETSU NI OKERU JYUDŌ KITSUEN BŌSHI JYŌREI [KANAGAWA PREFECTURAL ORDINANCE ON PREVENTION OF EXPOSURE TO SECONDHAND SMOKE IN PUBLIC FACILITIES] (2009), available at http://www.pref.kanagawa.jp/uploaded/life/23022_165417_misc.pdf (Japan). See generally Mina Kashiwabara et al., Kanagawa, Japan's Tobacco Control Legislation: a Breakthrough?, 12 ASIAN PAC. J. CANCER PREV. 1909 (2011).

70 KANAGAWA KEN KŌKYŌTEKI SHISETSU NI OKERU JYUDŌ KITSUEN BŌSHI JYŌREI [KANAGAWA PREFECTURAL ORDINANCE ON PREVENTION OF EXPOSURE TO SECONDHAND SMOKE IN PUBLIC FACILITIES], supra note 69.

71 JYUDŌ KITSUEN NO BŌSHI TŌ NI KAN SURU JYŌREI [ORDINANCE CONCERNING THE PREVENTION OF PASSIVE SMOKING, ET CETERA], HYŌGO PREFECTURE ORDINANCE NO. 18 (Japan) available at http://web.pref.hyogo.lg.jp/kf17/documents/03jourei.pdf (Japan); see generally, WORLD HEALTH ORGANIZATION, CTR. FOR HEALTH DEV., HYOGO PREFECTURE's SMOKE-FREE INITIATIVE: STAKEHOLDER DISCUSSION FOR A STEP TOWARDS HEALTHIER ENVIRONMENTS available at http://www.who.int/kobe_centre/interventions/smoke_free/List-11_APOCP_poster_Hyogo_final_.pdf.

72 The December 2012 gubernatorial election of Naoki Inose in Tokyo, defeating former Kanagawa Governor Matsuzawa whose campaign promises included progress towards smoke-free workplaces, bodes especially poorly for millions of Tokyo residents and for the nation as a whole. See discussion supra note 37.

73 E.g., WORLD HEALTH ORG., supra note 26.

74 Keeping in mind that nobody is perfect, I should be cautious before proclaiming a global champion. But at the time of this writing, one can't help but to thank the national home of the kookaburra and the emu for leading the way with plain packaging legislation.

75 Lou Reed, What's Good, on MAGIC AND LOSS (Sire Records 1992).

76 TOBACCO INST. OF JAPAN, supra note 7. These figures, based upon industry reports, are presumably accurate. I have never heard any discussion of there being a significant problem concerning illicit tobacco products smuggled into Japan. In any case, the government of Japan has not invested significant resources into this issue. GOJ FCTC Report 2012, supra note 20, at 15 (only 43 cases of counterfeit cigarettes seized in 2009; no estimates of smuggled products in the national market).

77 See TOBACCO INST. OF JAPAN, supra note 7.

78 KITSUEN TO KENKŌ [A REPORT ON TOBACCO SMOKING AND HEALTH PROBLEMS], MINISTRY OF HEALTH AND WELFARE, GOV't OF JAPAN 268 (1st ed. 1987) (stating the historical consumption figures between 1960 and 1992). And again, 2012 figures represent a 30% drop in per-capita consumption (population fifteen years and older). See supra note 9.

79 Cigars and other tobacco products, at least presently, are only miniscule fraction of tobacco use in Japan, and thus not included in this analysis.

80 Measured in five-year intervals, the average decline was 1.8% per year between 1998 and 2002, 3.4% between 2003 and 2007, and 6.5% per year between 2008 and 2012.

81 See generally Symposium, The End of Tobacco? The Tobacco Endgame, 22 TOBACCO CONTROL (SUPP. 1) 1 (2013), available at http://tobaccocontrol.bmj.com/content/22/suppl_1.toc.

82 If the decline trend continues to accelerate, there will be even speedier results.

83 GOJ FCTC Report 2012, supra note 20, at 13. Dr. Tomotaka Sobue of the National Cancer Center has estimated a much higher figure of 196,000 individuals (estimating deaths for year 2005). TOPIC REPORT, 2010 ed., supra note 6, at 16.

84 E.g., JAPAN TOBACCO INC., supra note 10, at 173. In recent years, the Ministry of Health, Labour and Welfare has been carrying out its own independent surveys with modestly different figures, but comparable trending. Kokumin Kenkō Eisei Chōsa [National Health and Wellness Surveys], MINISTRY OF HEALTH, LABOUR AND WELFARE, GOV't OF JAPAN, http://www.mhlw.go.jp/bunya/kenkou/kenkou_eiyou_chousa.html (last visited Feb. 22, 2013).

85 See supra note 78 and accompanying text.

86 By one measure, a prefecture-wide survey carried out Kanagawa Prefecture in October 2007 revealed nearly 90% public support for an ordinance mandating smoke-free public places. Kashiwabara et al., supra note 69, at 1911.

87 See supra Part II.B.

88 HEISEI 22 NEN KOKUMIN KENKŌ EISEI CHŌSA NO GAIYOU [NATIONAL HEALTH AND WELLNESS SURVEY SUMMARY 2010], 26 (Japan), available at http://www.mhlw.go.jp/stf/houdou/2r98520000020qbb-att/2r98520000021c19.pdf. Although game centers, which includes arcades, pachinko gambling parlors, and racetracks, did not have significant improvements, relatively few respondents reported visiting such establishments. Id.

89 Id.

90 Id.

91 MINISTRY OF HEALTH, LABOUR & WELFARE, GOV't OF JAPAN, HEISEI 23 NEN KOKUMIN KENKŌ EISEI CHŌSA NO GAIYOU [NATIONAL HEALTH AND WELLNESS SURVEY SUMMARY 2011] 13, available at http://www.mhlw.go.jp/stf/houdou/2r9852000002q1st-att/2r9852000002q1wo.pdf. N.B. “Minimal exposure” represents my paraphrasing of “around 1x per month.”

92 Id.

93 For example, nearly all means of public transport, most major hotels, and major enterprises such as Shiseido Cosmetics and Sagawa Kyubin delivery services (Japan's counterpart to Fed Ex or UPS) have decided to establish and maintain smoke-free environments for their customers and, increasingly, employees. In another realm of public spaces, see, for example, Detention Facilities to Go Smokeless, JAPAN TIMES (Dec. 21, 2012), http://www.japantimes.co.jp/news/2012/12/21/national/detention-facilities-to-go-smokeless/#.UUCnduPZ9mk.

94 Handout from Takushi zenmen kin’en tassei arigatou kinen foramu [Celebration of All Taxis Being Smoke-Free] 5-7 (Feb. 25, 2011) (on file with author).

95 Id.

96 Id.

97 Id.

98 Id.

99 Id.; Telephone interview with Bungaku Watanabe, Dir., Tobacco Problems Info. Ctr. (Jan. 10, 2013).

100 Interview with Shane Kawenata Bradbrook, Dir., Te Reo Mārama, in Honolulu, Haw. (July 10, 2012). Shane also deserves credit for the clever phrasing of “lore” and “law.” Id.

101 This is best demonstrated in per capita consumption figures.

102 The final footnote in my 1997 article conveys a prediction made by Japan's National Cancer Research Center that lung cancer deaths in Japan would double or triple from 1995 to the year 2015. Sadly, this has already happened for the 1990 to 2010 time frame. Lung cancer deaths for both men and women in absolute numbers as well per capita almost precisely doubled in that brief interval. Levin, supra note 2; National Cancer Center, Center for Cancer Control and Information Services, CANCER STATISTICS IN JAPAN ‘11 tbls.1, 3, http://ganjoho.jp/public/statistics/backnumber/2011_en.html (last visited Feb. 20, 2013).

103 Regrettably, broadcast media coverage of tobacco-control-related issues remains limited. Tobacco control activist friends attribute this to the ongoing economic power of the tobacco industry as a major advertiser, maintained mainly through the “manner campaign” loophole. See supra note 29.

104 I am tremendously pleased for my friend Mr. Bungaku Watanabe and his monthly publication, Kin’en Journal, which recently received a great recognition: the inaugural Association Award from the Japan Association of Medical Journalism.

105 The reference is to the classic folk tale, also known as Henny Penny, for “people accused of being unreasonably afraid, or those trying to incite an unreasonable fear in those around them.” Henny Penny, WIKIPEDIA: THE FREE ENCYCLOPEDIA, http://en.wikipedia.org/wiki/Henny_Penny (last visited Feb. 22, 2013). Wikipedia indicates that versions of this story go back more than twenty-five centuries. Id.

106 Feldman, see supra note 5, at 815. Feldman presents this dynamic as being central to Japan's tobacco control “landscape” and attributes policy change to an underlying culturally generated “conformity norm.” Id. at 796-810. I appreciate that international pressures can work as leverage mechanisms for both policy and norms change, see, e.g., supra text accompanying note 53 (regarding deployment of the FCTC as a framing mechanism in public discourse in Japan), but I think these are more peripheral and just one among many operating forces. The stories of working women and whales demonstrate the Japanese government's easy willingness to buck international pressures when it wishes to. Where Feldman's perspective appears to downplay the agency of engaged domestic players, such as Japan's tobacco control NGO's and their allies in government, I contend their work represents the principal factor in bringing about the many recent changes in norms relating to tobacco and smoking in Japan described in this Article.

107 Just as I have suggested a “hidden force” in Japan, a questioner at the Fifth FCTC Conference of the Parties asked attorney Koki Okamoto to explain Japan's “magic” in reducing tobacco use despite minimal policy accomplishments. Interview with Koki Okamoto, Attorney, Okamoto Sogo Law Office, in Honolulu, Haw. (Nov. 23, 2012).

108 Pharmaceutical businesses have an obvious desire for tobacco control policies that will increase quit attempts and thus increase use of their tobacco cessation products. Nonetheless, their interests may at times be incongruous with tobacco control advocates’ aims. Debate on this issue has been vibrant in the United States, but less visible in the Japanese setting.

109 See Eddie Landsberg, Japan's ‘Polite’ Tobacco War Rages On, JAPAN TODAY (Feb. 7, 2012), http://www.japantoday.com/category/opinions/view/japans-polite-tobacco-war-rages-on.

110 Full disclosure: I served as a paid consultant for Pfizer Inc. on two occasions between 2005 and 2008. I also indirectly benefitted from pharmaceutical industry support for the Tobacco Free*Japan project in 2000-2004 and in association with my participation in World No-Tobacco Day events in Tokyo, May 2010.

111 The changes demonstrated in the data cited supra notes 12, 88-92 are especially compelling.

112 Interview with Jay Klaphake, Assoc. Professor, Ritsumeikan Univ., in Honolulu, Haw. (Feb. 12, 2013) (noting that smoking has “gone out of fashion” among his students in Japan); see Interview with Koki Okamoto, supra note 107 (sharing a Japanese zeitgeist phrase “kūki ga kawatta” (“the air has changed”)); Interview with Dr. Manabu Sakuta, Chairman, Japan Soc’y for Tobacco Control, in Honolulu, Haw. (Aug. 31, 2012) (also sharing a Japanese zeitgeist phrase “kūki ga kawatta” (“the air has changed”)).

113 Over 60% of College Students Would Not Marry Smokers: Survey¸ NEWS ON JAPAN (Dec. 2009), http://newsonjapan.com/html/newsdesk/article/78381.php. Thanks to Jay Klaphake for introducing me to this survey report.

114 See generally MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE (2002).

115 See, e.g., Kristen Scholly et al., Using Social Norms Theory to Explain Perceptions and Sexual Health Behaviors of Undergraduate College Students: An Exploratory Study, 53 J. AM. COLL. HEALTH 159 (2005).

116 See supra note 106.

117 My astute colleagues Dr. Kristen Scholly and Lisa Kehl, health educators at the University of Hawai‘i regularly use this kind of social norming messaging for their efforts to reduce tobacco use and alcohol abuse. Examples include: “9 out of 10 UH Manoa students choose to be tobacco-free,” “[o]ver 2/3 of UH Manoa students wish our campus was tobacco-free,” and “[o]ver 90% of UH Manoa students prefer to date a non-smoker.”

118 Thus, I differ here with the primacy of allegedly Japan-specific cultural factors in Feldman's analysis, Feldman, supra note 5, Part III.B.

119 See Levin, supra note 5.

120 Full Disclosure: I have served as an unpaid Honorary Advisor for international and domestic policy to the Japan Society for Tobacco Control since its founding year in 2006. The Japan Society for Tobacco Control has grown to over 3000 members, produces important books and reference materials, serves as an international liaison from Japan with the Framework Convention Alliance, and publishes the Japanese Journal of Tobacco Control.

121 Specifically,

JTI operates in 120 countries and controlled 10.4% of the global cigarette market in 2009 … . [It] is the third most profitable publicly traded tobacco company following [Philip Morris International] and [British American Tobacco]… . During 2008, JTI was the first or second leading tobacco business in eleven major markets, including Russia, Ukraine, Japan, and the United Kingdom.

121 Specifically,

JTI operates in 120 countries and controlled 10.4% of the global cigarette market in 2009 … . [It] is the third most profitable publicly traded tobacco company following [Philip Morris International] and [British American Tobacco]… . During 2008, JTI was the first or second leading tobacco business in eleven major markets, including Russia, Ukraine, Japan, and the United Kingdom.

CAMPAIGN FOR TOBACCO-KIDS, JAPAN TOBACCO INC. AND JAPAN TOBACCO INTERNATIONAL 1 (2011), available at http://global.tobaccofreekids.org/files/pdfs/en/Japan_Profile.pdf (internal citations omitted).