Havana Horror

In the early seventeenth century, Tsar Michael of Russia decreed that subjects caught smoking tobacco were to be condemned to death. In 1634, the punishment had been revised to a mere vertical slitting of tobacco smokers' noses by knife. In 1604, the slightly more civilised King James I of England declared, "Is it not both great vanity and uncleanliness that at the table, men should not be ashamed to sit ... making their filthy smoke and stink ... and infect the aire, when very often, men that abhorre it are at their repast?" In 1605, the first tobacco tax came into being.

In 20th and 21st century New Zealand, the persecution of smokers continues. The New Zealand Herald reported on the 19th of January that a Christchurch cigar shop had been fined $750 for breaching the Smoke-free Environments Act 1990. Cubana Cigars in New Regent St was prosecuted for "failing to remove strips on its front window displaying the names of various Cuban cigar brands." Crown Public Health officer Peter Burt said that the prosecution sent a clear message to tobacco retailers that "any breaches of the act will be dealt with fairly seriously."

As unjust as this prosecution is, it pales when compared to the ordeal suffered by Havana House in Customs St, Auckland. Few know more about the Smoke-free Environments Act than Havana House General Manager, Tony Hart who wrote in the December edition of Cigar Aficionado:

"With great regret, we have to inform you that due to government intervention, we are unable to continue selling Cigar Aficionado magazine.

"After months of breaking our national law, we are now having legal action taken against us, by our government, for contravening our Smoke Free Act of 1992 [sic*], with amendments of 1996 [sic*] ...

"Our government's Ministry of Health has harassed us over the past two years for different infringements, including the removal of 'branded' accessories, i.e. T-shirts, pens and hats, etc.. D-Day was yesterday, when in a meeting with our lawyers and the Ministry of Health, they demanded (!) that we remove our web site. Sheer ludicrousness! ...

"... Meanwhile, we will endeavor to do what we do best, which is selling fine premium cigars both nationally and internationally. Until round two..."

The Ministry of Health was shamelessly cooperative when asked for their position on this issue. In response to a request for information, I received a seven-page fax including relevant sections of the act and a two-page "fact sheet about the dangers of cigar smoking and some recent information on cigar smoking rates in the United States and the increasing number of young people smoking cigars." The Ministry writes:

"The Ministry has previously considered issues around Cigar Aficionado ... The Ministry concluded that ... [t]he magazine as a whole, and components of it, are likely to promote smoking behaviour. Those selling the magazine are 'publishing' a tobacco product advertisement ... and bringing it to the notice of the public of New Zealand."

The letter reads like a judge's ruling. Has the Ministry not heard of the separation of powers?

But the health ministry's harassment doesn't stop at Cigar Aficionado. Hart believes that the Ministry of Health regularly sends stooges into his store asking to purchase items branded with cigar imagery in attempt to catch him out notwithstanding his undertaking not to stock them. He also suspects that the ministry sends under-age 15 to 17-year-olds into his store in a similar amateurish attempt to entrap him under section 30 of the act — sale of tobacco products to persons under 18. Hart rightly believes that there are a lot of people employed by the Ministry of Health with very little to do.

In September of last year, Havana House was instructed to remove the sign located on the street outside the shop not because it featured a cigar, but because the image of the cigar on the sign featured a band of a cigar manufacturer — Cohiba. More recently the ministry has demanded that they remove or cover up the classic cigar logos of traditional manufacturers that featured on Havana House's shop window. The prohibitive cost of removing the expensive printed glass and replacing them with inoffensive non-cigar-branded plates did not occur to the health ministry bureaucrats, so Havana House have resorted to covering the prestigious logos with ugly, coarse brown paper.

This draconian piece of legislation affects not only the way Havana House does business with its customers but also its relationship with the media. Until April of last year, Hart wrote cigar reviews for Auckland's Metro magazine until editor Bill Ralston was visited by a Ministry of Health official. The rest is history — the bureaucrat threatened to prosecute the magazine under the Smoke-free Environments Act should Ralston continue to print the reviews. A cigar review, in the ministry's opinion, constitutes a "tobacco product advertisement" under section 22 of the act. Section 22 states:

"[N]o person shall publish any tobacco product advertisement in New Zealand [including] any book, magazine or newspaper printed outside New Zealand [if] the principal purpose of the book, magazine, newspaper ... is the promotion of the use of tobacco products."

"Tobacco product advertisement" is defined by the act as:

"[A]ny words ... and any pictorial representation ... used to encourage the use or notify availability or promote the sale of any tobacco product or to promote smoking behaviour;"

Shortly after the threats against Metro were made public, Havana House offered to advertise in the New Zealand Herald's 'Gifts for the Family' supplement prior to Christmas. Knowing that they could not advertise actual cigars, Havana House planned to feature cigar paraphernalia as potential 'Gifts for Dad.' The Herald replied, given the recent Metro blow-up, that they "would not touch [Havana House] with a barge pole." Hart expects the Kristalnacht of cigar retailers to commence any day now.

The prospect of fighting a legal battle with the government must be truly daunting to any tobacconist merely trying to run a business. But they have only their own silence and capitulation to blame for the assaults on their liberty. When put to Hart that his ordeal is merely a precursor for worse things to come, he says that there will come a point where the health ministry will be forced to prosecute him. Although he may lose $10,000 in fines, he intends to do his darndest to make $100,000 in publicity out of the case. Hart's fighting spirit has not been dampened — it's still smoking.

* The actual legislation is the Smoke-free Environments Act 1990 and the Smoke-free Environments Amendment Act 1997.

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