The World Health Organization Framework Convention on Tobacco Control

Allyn L. TaylorGeorgetown University Law Center

Time Time MagazineMagazine

Rationale for an International Legal Strategy for Global Tobacco Control

Global burden of disease

Globalization of the tobacco epidemic

Tobacco Control is an International Legal Tobacco Control is an International Legal Concern: Global Burden of DiseaseConcern: Global Burden of Disease

Tobacco use kills 5.4 million people a year.

Based on current trends, tobacco will cause 8 million annual deaths by 2030, with 80% of those deaths occurring in developing countries.

By 2020, it is estimated that only 15% of the world’s smokers will live in developed countries.

WHO

Global Perspective: Tobacco Pandemic

Industrialized NationsTobacco-Related Death is a Major “Epidemic” in Developed

Nations50 Year Estimates, Death From Smoking 1950-2000

Developed Countries Only

Age at Death Male Female

35-69 33 million 4.8 million

70+ 19 million 5.7 million

Total 52 million 10.5 millionPeto and Lopez

Public Health Campaigns

Legislation for Tobacco Control

Fiscal measures (taxes and subsidies) Discouraging consumption by young people

(including access and appeal of tobacco) Environmental tobacco smoke measures Packaging and labeling of tobacco products Measures to control advertising, promotion

and sponsorship Mandatory health education Measures to control smuggling Treatment of tobacco dependence Regulation of the tobacco product Ruth Roemer, JD

1918-2005

Why is Domestic Legislation Important?

“Legislation can express government policy on the production, promotion and use of tobacco; emphasize government’s commitment to combating smoking by allocating resources to effective anti-tobacco programmes; launch governmental and voluntary anti-smoking activities; encourage smokers to stop smoking and dissuade potential smokers from starting to smoke; protect the rights of non-smokers from passive smoking; and contribute to a climate of opinion and social pressure in which smoking is unacceptable.” Source: Ruth Roemer

Globalization of the Tobacco Epidemic: The Contribution of International

Lawmaking to Global Tobacco Control

Globalization of the Tobacco Epidemic: The Contribution of International

Lawmaking to Global Tobacco Control

The tobacco epidemic is being spread and reinforced through complex mix of factors that transcend national borders

Globalization of the epidemic restricts the capacity of countries to regulate tobacco through domestic legislation alone

Impact of International Trade Liberalization on Tobacco Consumption

The recent trend towards the increased liberalization of trade in most good and services has significantly reduced high-tariff and non-tariff barriers to trade in tobacco and tobacco products and contributed to the sharp increase in tobacco use in many low-income and middle income countries.

(Taylor, Chaloupka, Guindon & Corbett, 2000)

Transnational Dimensions of Tobacco Control

Taxes and prices Smuggling Advertising and

sponsorship Tobacco package design

and labeling

Tobacco and agricultural policy

Testing, reporting and regulation of toxic and other constituents

International cooperation and information sharing

Duty free tobacco products

Transnational Dimensions of Advertising and Promotion: Spillover

Cable and satellite television

Movies and films Foreign newspapers

and magazines Internet Product promotion

Global Dimensions of Illicit Trade in Tobacco Products

Illicit trade in tobacco – smuggling, counterfeiting and other illegal manufacture as well as bootlegging - is a major international problem.

In 2006 it was estimated that illicit trade accounts for 10.7% of global cigarette sales or almost 600 billion cigarettes.

Illicit trade deprives governments of US$ billions in taxation, fuels organized crime and undermines tobacco control efforts.

Global Tobacco Control in the

21st Century

A WHO Framework Convention on Tobacco

Control

Framework Convention-Protocol Approach A Dynamic Model of Global Standard-Setting

No technical legal meaning

Step 1: Framework Convention International cooperation in achieving broadly stated

goals and institutions for global governance. Future Steps: Protocols

Specific measures designed to implement goalsof the framework convention or add further institutional commitments.

Treatment of tobacco dependence

Possible Protocols to the FCTC

Agricultural policies

Environmental Tobacco SmokeHealth Education & Research

Testing and reporting of ingredientsProduct regulation

Advertising and sponsorshipProtecting children and adolescents

Illicit Trade

Duty-free salesTobacco

taxes/price

Examples of the Framework Convention- Protocol Approach

UNEP Regional Seas Agreement (e.g., Barcelona Convention 1976)

Long-Range Transboundary Air Pollution Convention (1979)

Vienna Convention for the Protection of the Ozone Layer (1985)

Framework Convention on Climate Change (1992)

European Convention on Human Rights and Biomedicine (1997)

Protocols on specific problems (oil spills, ocean dumping, protected areas)

Protocols on specific pollutants

Montreal Protocol on Substances that Deplete the Ozone Layer (1987)

Kyoto Protocol (1997)

Protocols on human cloning and transplantation of human organs and tissues (1999)

WHA Resolution 49.17: A Framework Convention for Tobacco Control (1996)

The World Health Assembly called upon the Director General of WHO to

initiate development of a framework convention in accordance with Article 19 of the WHO Constitution to: deal with aspects of tobacco control that

transcend national boundaries

include a strategy to encourage member nations to move progressively towards adoption of comprehensive tobacco control policies

A WHO Framework Convention: From Rationale to ‘Ripeness’

Evolution of WHO’s traditional organizational culture:

Election of Dr Gro Harlem Brundtland

Limitations of traditional public health measures

Tobacco litigation in the US: Evolution of public

image of industry Damage awards

FCTC Timeline•First Session of the INB (October 2000) Chair’s Text: January 2001

•First Session of the INB (October 2000) Chair’s Text: January 2001

•Second Session (April 2001)

•Third Session (November 2001)

•Fourth Session (March 2002)

•Fifth Session (October 2002)

•Sixth Session (February 2003)

•Second Session (April 2001)

•Third Session (November 2001)

•Fourth Session (March 2002)

•Fifth Session (October 2002)

•Sixth Session (February 2003)

•Adoption (May 2003)•Entry into Force (February 2005) •Adoption (May 2003)•Entry into Force (February 2005)

Substantive and Procedural Limitations of the FCTC: Challenges of Global Lawmaking

(with thanks to Jackson Pollock)

Framework Conventions: General Obligations

National measures to combat the problem Education, training, public awareness Cooperation in scientific research Financial and technical assistance

The FCTC: A Catalog of Substantive Obligations

General Obligations (Art. 5). Measures Relating to Reduction of Demand (Arts. 6-14).

Price and tax measures; environmental tobacco smoke; regulation of tobacco product contents; tobacco product disclosures; packaging and labelling; advertising, and; cessation.

Measures Relating to Reduction of Supply (Arts.15-17). Protection of Environment (Article 18). Scientific and Technical Cooperation and Communication

of Information (Articles 20-22).

Article 16: Sales to and by minors

1. Each Party shall adopt and implement effective, legislative, executive, administrative or other measures at the appropriate government level to prohibit the sales of tobacco products to persons under the age set by domestic law, national law or eighteen. These measures may include…

2. Each Party shall prohibit or promote the prohibition of the distribution of free tobacco products to the public, especially minors.

Article 16: Sales to and by minors

3. Each Party shall endeavor to prohibit the sale of cigarettes individually or in small packets which increase the affordability of such products to minors.

6. Each Party shall adopt and implement effective legislative, executive, administrative or other measures, including penalties against sellers and distributors , in order to ensure compliance with obligations contained in paragraphs 1-5 of this Article.

The FCTC: A Limited Institutional Framework

Scienceadvisory

body

Implementationbody

Financial mechanism

Meeting of the contracting parties

Secretariat

Challenges to Global Tobacco Lawmaking: The Tobacco Industry

Economic interests: tobacco tax revenue.

Industry ‘interference’ with international negotiations.

Role of industry on governmental delegations.

Liberty: WHO and the ‘Nanny State.’

The Tobacco Industry and Liberty

Smoking is a civil right,Those who don’t should join the fight.For if one right does disappear.The loss of others may be near….Too many calories can cause you to die,So let’s have a ban on apple pie.Once a government restricts a right,The end will never be near in sight.There is a lesson here and it is no joke, I once had the

right to smoke!Philip Morris Magazine

Lessons From the FCTC Process: Challenges to Tobacco Lawmaking

Powerful industry opposition to tobacco control.

Lack of strong international NGO presence.

Inexperienced secretariat.

Failure of nations to “take tobacco control seriously.”

The Final FCTC Text: Challenges in Promoting The Final FCTC Text: Challenges in Promoting Treaty ComplianceTreaty Compliance

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The impact of the FCTC and FCTC negotiation process on global tobacco control: the ‘power of the

process’

The sheer process of negotiating an international instrument can stimulate national action and international cooperation long before instrument is adopted:

Negotiation process can bring an issue to the global stage.

Negotiation process can bring together different ministries within national governments to forge national solutions.

Negotiation process can encourage the development of national coalitions and international partnerships.

Negotiation process can promote the development and coordination of civil society, nationally and internationally.

The Contribution of FCTC to Global Tobacco Control: Creation of a Global Forum to Highlight Tobacco Control

•Entry into Force (February 2005)

•First Meeting of the Conference of the Parties (February 2006)

•Second Meeting of the COP (June 2007) •Third Meeting of the COP (November 2008)

• 3 Sessions of INB on Protocol on Illicit Trade (July 2007, October 2008 and July 2009)