Wednesday will be a milestone in the war against tobacco in Israel. That’s the day when the third phase of restrictions on the marketing of tobacco products goes into effect. It will require cigarettes and e-cigarettes to be packaged in a box of a single color without a logo or other trademarks. They will no longer be displayed on shelves at retail outlets.
The third and final vote on legislation enabling all this to happen occurred on the last day of 2018, just before the 20th Knesset dispersed and following years of campaigning by health activists. In addition to the restrictions on packaging and retailing, the law also banned tobacco advertising and marketing. It makes no distinction between ordinary and electronic cigarettes.
Yet one gaping hole in the crackdown on tobacco marketing remains: Makers and importers have been able to continue advertising in the print media. Indeed, since the advertising ban went into force a year ago, print media is the industry’s only advertising outlet left.
The exemption is regarded by health activists as well as many Knesset members as a huge stain on the law, and many blame Health Minister Yaakov Litzman for it. TheMarker reveals here how the exemption came to be during the deliberations leading up to the law’s passage two years ago, Litzman’s role in ensuring it and the alleged conflicts of interest involved.
Yehuda Glick, then a Likud MK and the initiator of the legislation, recalled the key moment, in December 2017, ahead of the first vote on the law in the Knesset. He was called to the Prime Minister’s Office for a meeting with Likud coalition leader David Bitan and two of Prime Minister Benjamin Netanyahu’s advisers.
“In the discussion, I was told they wanted to support my request [to back the law], but they needed the approval of the health minister. For this purpose, they got Motti Babchik, an aide to Deputy Health Minister Yaakov Litzman, and he asked that they provide him with a [legislative] alternative,” said Glick.
Litzman, who belongs to the ultra-Orthodox United Torah Judaism party, was deputy health minister at the time, but effectively ran the ministry.
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“Babchik listened and said the deputy health minister was interested in supporting the law banning advertising and marketing of smoking products, but he had certain reservations. ... An hour later I was called back to the PMO to meet with the same people and this time with Babchik. At this meeting, Babchik said Deputy Minister Litzman is ready to support the advertising ban on tobacco products on one condition – an exception for the print media,” Glick recalled.
Glick’s statement about the events of that night was part of a petition to the High Court of Justice by the nonprofit organization Smoke Free Israel. The appeal was rejected last November.
Glick’s statement makes clear Litzman’s role in ensuring the print media exemption despite the apparent conflict of interest he had due to his affiliation with the Haredi newspaper Hamodia.
Glick had initially proposed a more draconian version of the law that would have banned sales of tobacco products to anyone under age 21, but he failed to win the support of the government. However, when Glick threatened to vote against the government’s bill restricting retail operations on Shabbat and Jewish religious holidays, the sides reached compromise legislation that would restrict tobacco advertising and marketing.
It was at this stage that Litzman’s office entered the picture, as Glick recounted it. After the meeting with Babchik, Litzman himself spoke with Glick by telephone and agreed to support the bill so long as the drafting process was coordinated with the ministry. The bill was combined with a similar one sponsored by Eitan Cabel, then a Labor MK, and the ministerial legislative committee then gave its approval, with the proviso that print media would be exempt.
The legislation took all of 2018 to finally win approval amid opposition from the tobacco and e-cigarette industries. In the end, thanks to the persistence of the law’s backers and support from health organizations, the legislation passed by a wide majority.
Israel thus joined a global crackdown on tobacco marketing, with the one unusual exception that cigarette companies can continue to advertise in newspapers and magazines. Litzman had an interest in that exception because Hamodia is published by his Agudat Yisrael party, which is part of UTJ. The newspaper is Litzman’s house organ and employs his wife. A ban on tobacco advertising would have cut into the paper’s revenues.
Under the law, not only is there no ban on tobacco advertising, but each ad that does appear must be matched in the newspaper with an equivalent-sized ad warning about the dangers of smoking, paid for by tobacco advertisers.
It should be noted that Yedioth AhronothGroup newspapers accounted for 55.3% of all tobacco advertising in the March-November 2019 period, according to data obtained by TheMarker from the advertising market research firm Ifat. That was equal to about 6.5 million shekels ($1.9 million). The freebie daily Israel Hayom accounted for 8.4%, the second-largest share, and Haaretz/TheMarker for 4.6%, the fourth largest,
Hamodia captured 2.3%, worth about 272,000 shekels.
The MKs voting on the legislation all knew who was really behind the exemption and why, as the minutes of the Knesset committee deliberating it reveal. They also knew there was nothing they were about to do to remove the exemption.
For instance, in April 2018, MK Yael German (Yesh Atid) noted: “When I was health minister, I brought to the Knesset economic committee chaired by [Avishai] Braverman a law that would have imposed a blanket ban. Who opposed it? Take a guess.” Yitzhak Keinan (Shas) answered: “Today’s health minister.”
German responded: “Very nice. The deputy health minister, who was then a member of the opposition. ... He created a coalition around himself of opposition MKs and lobbyists who scampered around like mice and whispered to MKs that, God forbid, a really good law would be passed that calls for no advertising – not on the internet and not in newspapers.
Vive la difference
“Why is there an exception for newspapers? Why are newspapers different? Apparently, there’s a worry that a deputy minister is connected to a certain newspaper in which cigarette advertising appears,” said German.
A little over three months after the law cleared its final vote in December 2018, Deputy Attorney General Dina Zilber signed off on a conflict of interest declaration for Litzman. Among other things it notes that due to his affiliation with Hamodia, if he is engaged in matters that would significantly affect the newspaper and/or its interests, he must get approval from the attorney general.
As to the law’s exemption for newspapers, Zilber said the legislation had already been approved and was not relevant to the declaration.
A month after the conflict of interest declaration was issued, Smoke Free Israel turned to the High Court to have the exemption rescinded on conflict of interest grounds. Attorney Effi Michaeli asked the court to enter Glick’s testimony as part of the organization’s appeal, but was turned down by the judges.
When they finally rejected the appeal altogether, they did so on the grounds that even if it had been proven that Litzman had a conflict of interest, it would not affect the validity of the law.
“It should be noted that the legislation was presented as a private member’s bill and approved by the Knesset by a wide majority in three votes, after no fewer than eight hearings of the Economics Committee, during which the issue of the printed press exception was discussed and justified,” the judges said in their ruling.
In response, Litzman’s office noted that the exemption included a requirement for equal advertising space for anti-smoking ads in a way that would provide readers with continuous warnings. It said the new law strengthened restrictions on print advertising.
“The legislative process was conducted according to the law at every stage and monitored and approved by Knesset committee and Health Ministry legal advisers,” his office said.
“The claims of conflict of interest between Litzman and Hamodia have been refuted time after time. These repeated claims have no basis,” the office said, noting the High Court’s rejection of Smoke Free Israel’s petition.