Liability: untapped potential in the Framework Convention on Tobacco Control

Chris Bostic, Richard Daynard and Tamar Lawrence-Samuel

The history of the Framework Convention on Tobacco Control (FCTC) is filled with one unprecedented victory after another (see page 21). The next milestone for the treaty can—and should— tap the potential of Article 19 to hold the industry liable. Though the implementation of measures in line with Articles 5.3 and 13 has dramatically shifted the way the tobacco industry can operate globally, Article 19 has similar—if not greater—potential to curb the operations of the industry, and therefore the tobacco epidemic. As we look to the next Conference of the Parties (COP) in November, Parties should be looking to make sure that Article 19 achieves its potential.

For many who participated in the drafting of the FCTC, Article 5.3 (protecting public health policies from the tobacco industry) and Article 13 (banning tobacco advertising, promotion and sponsorship) seemed too visionary. Many thought these articles would be politically and technically impossible to implement. But a decade later, Parties are prioritizing these articles— and the effects are startling. Today, tobacco industry marketing is being rolled back across the globe. And dozens of countries have barred the industry from the policymaking table, creating space for effective policies to take hold.

But still the industry continues to be enormously profitable, with the top six corporations raking in $44 billion of profits in 2013. This, in part, because it breaks national laws and is not held accountable for what its products cost society. Governments pay billions of dollars in healthcare costs due to the tobacco epidemic. And evidence continues to mount of the tobacco industry’s illegal activities, which it currently appears to engage in with relative impunity—from illicit trade to widespread and systematic bribery.

To take the next big step in reducing the industry-driven tobacco epidemic, we must be able to hold the industry civilly and criminally liable. We must appreciate the visionary potential in Article 19. And we must take bold, courageous action to realize the world that Article 19 can make possible.

A vast ocean of possibility

Successful civil liability litigation in the U.S. and Canada has proven this tactic has great, global potential. It can provide an avenue for governments to hold the industry accountable for breaking laws, whether it be illegal marketing practices or illicit trade. Financially, it can shift the cost of the tobacco epidemic to the industry, where it belongs, raise the price of tobacco products (which reduces consumption), and provide funds for tobacco control campaigns. And finally, civil liability suits can expose internal industry documents, which provide invaluable insight into the industry’s tactics and help pave the way for even more effective legislation and litigation.

Holding the tobacco industry criminally liable, on the other hand, is admittedly venturing into less tested waters. But the ocean of possibility is vast.

Research on criminal liability provides cause for hope. A successful criminal prosecution would dramatically change the landscape for the tobacco industry. Tobacco executives could face potential prison time for violating tobacco control laws or for misleading people about the lethality of their products. The negative publicity generated with such charges would go far in denormalizing the tobacco industry and would chill the recruitment of talent.

Moral and financial imperative

To be sure, successful implementation of liability measures will prove to be challenging. And it will look different in each country given the range of legal systems across Parties. But the moral and financial imperatives are clear. Parties in the Global South, such as those recently targeted by British American Tobacco’s bribery, are now calling for tools to advance Article 19. These are some of the same Parties who championed Articles 5.3 and 13 during the FCTC negotiations.

We can and must follow these Parties’ visionary lead once again. During COP7, Parties should adopt strong guiding principles to advance implementation of Article 19. These include principles for developing and reforming legislation, and best practices for litigating in civil and criminal liability regimes in both civil and common law jurisdictions and systems.

Without a doubt, litigating against the tobacco industry is costly and intimidating. But many governments are already locked in defensive legal battles with the industry as it turns to litigation more and more to undermine strong tobacco control policies around the world. If governments are going to be in court with the industry, they should be doing it on their terms, proactively holding the industry liable for its myriad of abuses. And to do so, they need tools and guidance for implementation of Article 19 from the treaty, the Secretariat, and the COP. We have the ability to bring the untapped potential of Article 19 into fruition and to rein in the tobacco industry as we have never seen before. We have no time to lose. We must act, as a global community, now.

Chris Bostic is Deputy Director for Policy at Action on Smoking and Health (Twitter: @AshOrg). Richard Daynard is University Distinguished Professor of Law at Northeastern University and President of the Public Health Advocacy Institute . Tamar Lawrence-Samuel is Associate Research Director at Corporate Accountability International. (Twitter: @StopCorpAbuse)