Philip Morris agreement with Spanish police: undermining the FCTC?

On 29 October, Philip Morris Spain signed an agreement with the Spanish police to fund equipment including underwater cameras, night vision systems, and scanners for verifying authentication and tracking of tobacco products. The agreement also includes support during inspections and seizures of counterfeit products to assess possible illegal activities regarding the entire production and distribution chain, as well as research and studies about illicit tobacco.

The agreement takes place against the backdrop of a hotly contested battle for the European Commission’s approach to track and trace technology to meet the requirements of the revised European Tobacco Products Directive (TPD). Unlike the WHO protocol to Eliminate Illicit Trade in Tobacco Products (which the EU has signed, but not ratified), the TPD doesn’t exclude the tobacco industry from a central role in fighting illicit tobacco. The track and trace system supported by the TPD also doesn’t require secured markings on tobacco packages.

The tobacco industry is arguing for its own technology Codentify – a system developed by Philip Morris and licenced at no cost to BAT, Imperial Tobacco Group and Japan Tobacco International – against a Swiss company SICPA. Officials at the European Anti-Fraud Office, OLAF, have already thrown support behind Codentify and expressed concern that the SICPA technology may be incompatible with working agreements currently in place with the tobacco industry to combat smuggling.

OLAF’s support ignores significant concerns about the adequacy of Codentify, particularly its use of relatively unsecured equipment and potential for codes to be used more than once. Use of Codentify also opens up the possibility that investigations and inquiries could be transparent to the tobacco industry, and therefore potentially beneficial in shaping its reponse.

OLAF has noted that efforts to disrupt illicit tobacco rely on the input of the industry, a situation created by anti-smuggling agreements between tobacco companies, the EC and EU member states. The agreements were enacted with companies from 2004, following a case in the 1990s in which cigarettes were legally exported from the US and later appeared on the black markets of countries such as Italy, Spain and other European countries. The anti-smuggling agreements, due to expire in 2016, require tobacco companies to control their supply chain and set penalty payments for cigarette seizures. The agreements have generally been ineffective due to a range of loopholes, particularly because customs officials rely on industry to determine counterfeit cigarettes.

In the mid 1990s, it was estimated that 16% of the Spanish cigarette market was illegal. This was reduced to 2% in 2001, following a focused operation which included inter-jurisdictional cooperation, coordinated customs activity and participation in the EU investigation of cigarette smuggling by transnational tobacco companies. The main source of illegal cigarettes had been products from transnational tobacco companies supplying Spain via seaports. A 2014 OLAF report suggests that the illicit tobacco market in Spain has re-emerged and is fuelled by contraband originating in Gibraltar.

There is a lack of technical expertise in tracking and tracing in many European countries, creating a significant opportunity for the industry to step in and fill the gap. In addition, a comprehensive two year strategy and action plan to tackle illicit tobacco published by the EU in June 2013 – which aims to target supply and demand in illicit products, decrease smuggling incentives (primarily through tax harmonisation), improve security of the supply chain through tracing and tracking, and strengthen and coordinate enforcement – has no new budget allocation.

Philip Morris is likely to benefit from the agreement with the Spanish police in several ways. Apart from the obvious public image benefit of being seen to support strong law enforcement, providing apparently welcome assistance to police agencies in individual countries in Europe helps to cement the industry’s positioning as an essential partner in the fight against smuggling. Supplying research and ‘academic’ advice provides an opportunity for PMI to shape law enforcement expertise based on research favourable to its position.

In 2011, Philip Morris gave a donation of $23 million to Interpol; as with that donation, this agreement with the Spanish police generates goodwill within law enforcement and makes it appear that Philip Morris is part of the solution rather than a root cause of the problem.

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  • Joseba Zabala Galán

    Goal into the top corner! – that’s the first thing I thought after reading the news that Philip Morris International (PMI) and Altadis had signed an agreement with the Spanish ‘Guardia Civil’ Police to fight against tobacco smuggling. How painful it is to see a tobacco company pay our police corp for underwater cameras, night-vision systems, scanners, etc. However, as the cheers die down from the fans, what we find is that the ball is in our own net, because we have allowed the tobacco industry to appear to be the principal custodians of legality and moral behaviour. It actually turns out to be a masterful goal of corporate image that I shall try to replay in slow-motion so that the fans in the stalls who may not have an eye for this type of game can judge for themselves in the light of the facts.

    Since 2004, the world’s four biggest tobacco companies have paid hundreds of millions of dollars in fines to resolve their smuggling cases in Europe and Canada. In 2000, the European Commission and EU member states took legal action accusing them of “having a continuous global system for cigarette smuggling, income from narcotics laundering, obstruction of government oversight, bribes to foreign public officials, illegal business with terrorist groups and states that support terrorism.” As a result of these legal actions, PMI and Japan Tobacco International closed their cases in 2004 and 2007 respectively through the payment of more than 1.6 million dollars to the European Commission and to its member states in recognition of fiscal losses suffered through their illegal acts. PMI settled the complaint against them through a legal trade agreement avoiding the necessity to plead guilty.

    The 200 PMI lobbyists in Brussels must have done a really good job. After three years of confidential meetings, they came to an agreement with the European Commission signed in 2004, and that after twelve years will expire in 2016. Last month, the European Ombudsman from Ireland, Emily O’Reilly, denounced the lack of transparency in the meetings that the Commission held the year before with the tobacco industry, under the presidency of Durao Barroso and she urged the new EU executive to publish this information.

    They were trying, on one hand, to impede Philip Morris from being involved in illicit trade of their own cigarettes and to punish the company each time there was a large seizure of its cigarettes. On the other hand, they were trying to find a way for the EU member states to recover lost tax revenues. It turns out that those tax agents depend on the tobacco company itself to determine if the confiscated cigarettes are originals (subject to payment) or false (not subject to payment). The agreement makes it so that this determination is analyzed by the actual tobacco company, so the result is predictable: payments for seized cigarettes have been risible. Only 0.5% of the 3.8 million confiscated cigarettes in the EU in 2012 were classified as “original brands”. This implies that governments rarely recover any of their lost revenue.

    My soccer player friends would ask: “How do PMI and other big tobacco companies decide if the confiscations are authentic or if they are fake?” The manufacturers base their analysis on a system called Codentify, which was developed internally by Philip Morris and which can be used for free by other tobacco companies (Japan Tobacco International, British American Tobacco, Imperial Tobacco). Codentify uses an algorithm to create a scannable code of twelve numbers which is applied to each pack of cigarettes allowing it to be traced along the supply chain.

    This is the game changer. Looking now at how they scored this goal, you have probably already realised that the agreement with PMI is nothing but a way to use the ‘Guardia Civil’ police to develop and promote PMI’s system of Codentify. Furthermore, this system does not meet the requirements of the Protocol for the Elimination of Commercial Trade of Tobacco Products that the WHO signed last year in Spain, which establishes in Article 8.2 that the system used to follow and register products should be controlled independently by the government and not in conjunction with the tobacco industry.

    This protocol is not the only set of rules that the players must abide by. Article 5.3 of the WHO Framework Convention of Tobacco Control demands that member states be responsible and transparent in all their dealings with the industry. It’s one thing to ask for facts from a tobacco manufacturer, and a very different thing to be funded by them. Let’s be clear: how is it possible that a tobacco company can finance an entity that is supposed to be fighting against smuggling, when it has emerged that the same industry could be implicated in the smuggling itself? The financing of these policing systems should come from the taxes on tobacco rather than direct financing from the tobacco makers and traders themselves. It is not admissible in any way that the referee’s whistle has been purchased by one of the teams.

    Public health has watched the game and declared the goal invalid, and called for the red card. Both at national government level and at EU level in Brussels, in the fight against the illicit trade of tobacco Europe has to look for a more effective solution than the current agreement with PMI.

    The final whistle is still a long way off. After halftime there will be a second part of the game which will include the plain packaging of tobacco. It will be claimed that plain packaging will encourage yet more smuggling, but this is far from the truth. What plain packaging will achieve is that fewer young people will take up smoking.

    So what are we waiting for here in Spain? The whole world of public health is moving in this direction. Australians, British, French, Irish and Norwegians have already taken this step towards the plain packaging revolution. Why the Spanish not?.

    This game is about people’s health, and its one we need to win!

    Joseba Zabala Galan, MD, Public Health

    *Joseba Zabala Galan is a Public Health Doctor and the coordinator for the grassroots initiative XQNS , which received an award from Queen Sofia of Spain.

    Traslation by Carly Caminiti and Michael Chalcraft


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