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Framework Convention on Tobacco Control

A “Frank Statement” for the 21st Century?

19 Sep, 17 | by Marita Hefler, News Editor

Ruth E. Malone, Simon Chapman, Prakash C. Gupta, Rima Nakkash, Tih Ntiabang, Eduardo Bianco, Yussuf Saloojee, Prakit Vathesatogkit, Laurent Huber, Chris Bostic, Pascal Diethelm, Cynthia Callard, Neil Collishaw, Anna B. Gilmore

The surprise announcement by the former head of the World Health Organization’s Tobacco Free Initiative, Derek Yach, that he would head a newly-established organization called the “Foundation for a Smoke-free World” to “accelerate the end of smoking” was met with gut-punched disappointment by those who have worked for decades to achieve that goal. Unmoved by a soft-focus video featuring Yach looking pensively off into the distance from a high-level balcony while smokers at ground level stubbed out Marlboros and discussed how hard it was to quit, leading tobacco control organizations were shocked to hear that the new organization was funded with a $1 billion, twelve-year commitment from tobacco company Philip Morris International (PMI). PMI, which has been working for decades to rebrand itself as a “socially responsible” company while continuing to promote sales of its top-branded Marlboro cigarettes and oppose policies that would genuinely reduce their use, clearly believes this investment will further its “harm reduction” agenda, led by its new heat-not-burn product, IQOS. But don’t worry, the Foundation assures everyone that “PMI and the tobacco industry are precluded from having any influence over how the Foundation spends its funds or focuses its activities.”

Except that is what a broad range of industry front groups, sometimes headed by respected and even well-intentioned leaders, have been saying since the “Frank Statement” of  1954. The long and sordid history of the industry’s funding of “research,” a major part of the mission of this new foundation, is replete with exactly this sort of blithe reassurance, as Yach himself pointed out in an earlier time. In reality, nothing has changed. The “research” really isn’t the point anyway. The mere fact of having landed Yach is a major public relations coup for PMI that will be used to do more of what the industry always does: create doubt, contribute further to existing disputes within the global tobacco control movement, shore up its own competitive position, and go on pushing its cigarettes as long as it possibly can.

In the video, Yach invites “everyone” to join the “movement” this new organization is starting – implicitly dismissing the past 40 years of tobacco control activism and advocacy and 60 years of tobacco industry lies and duplicity. Leaders of active existing civil society coalitions like the Framework Convention Alliance and the Noncommunicable Disease Alliance were blindsided. Contrary to the video’s claim, there is no shortage of “fresh thinking” in the already-vibrant, already-existing global movement to end the tobacco epidemic. There are many great “endgame”-furthering ideas now being actively debated, studied, and tried out: the primary obstacle to implementing them is the tobacco industry.

PMI  hasn’t stopped opposing the policies that would reduce tobacco use, has it? No: recently leaked documents  show that PMI continues to actively oppose any policy that could genuinely reduce tobacco use. Countries around the world identify the tobacco industry as the single biggest barrier to progress in implementing such tobacco control policies. This “new” initiative is just more of the same lipstick on the industry pig, but in a way it’s far worse this time: by using a formerly high profile WHO leader as a spokesperson, PMI can also accelerate its longstanding ambition to splinter the tobacco control movement.

It’s also not true, as the video suggests, that tobacco control efforts have “plateaued.” Cigarette consumption is declining and since 2003, more than 180 countries have become parties to the World Health Organization Framework Convention on Tobacco Control (FCTC), committing themselves to implement effective policy measures and building public support for ending the epidemic. PMI knows this, hence its ongoing, covert and overt efforts to stymie the FCTC. For example, at the last Conference of the Parties, the meetings where implementation of the treaty is discussed, tobacco farmers organized by PMI demonstrated outside the venue and PMI representatives met secretly with delegates to the meeting.

The company hasn’t announced it is going to stop promoting cigarettes to kids in Africa and Asia, has it? No: in fact, it’s developing “stronger” products for some markets, and  continuing to aggressively promote Marlboro cigarettes to the young through campaigns like “Be Marlboro”(see also here and here). Despite decades of developing and then abandoning so-called “reduced harm” products, cigarettes remain PMI’s biggest moneymaker, dwarfing anything else. Only the profoundly naïve will believe that PMI is not solely promoting its self-interest in supporting this new “foundation”.

In fact, the announcement came the day after a huge win for tobacco control: the exclusion of  tobacco companies (as well as makers of cluster bombs and some other unsavory actors) from membership in the United Nations Global Compact, due to their  incompatibility with responsible business principles. Tobacco control leaders across the globe are convincing governments to protect health policymaking from tobacco industry influence, in line with Article 5.3 of the FCTC. PMI’s response is a new industry sponsored entity, eager to work with governments. From its inception, this organization will constitute a challenge for Article 5.3 implementation.

The timing of the announcement was interesting in another way: just the day before, a new global health initiative led by former US Centers for Disease Control head Tom Frieden was announced, with $225 million in funding from Bloomberg Philanthropies, the Chan Zuckerberg Initiative and the Bill & Melinda Gates Foundation. While this initiative does not focus solely on tobacco, these funders know how much tobacco contributes to disease and death worldwide. They are also funders who have unequivocally taken positions supporting the strong policy measures that work.

What is required to end smoking isn’t helping the world’s leading cigarette manufacturer in its ongoing image makeover while it continues to try to derail the significant public health progress made to date. What is required is leaders who have the humility to work with the movement and policymakers with the backbones of steel needed to stand up to the industry to enact and implement strong tobacco control measures, including high taxes, smokefree laws, effective media campaigns to denormalize both smoking and tobacco companies, and marketing, packaging and retailing regulations to make these deadly products less ubiquitous. The global movement public health activists built over decades of toiling in the trenches must stand together and not allow PMI to buy more time by executing a 21st century version of the  “Frank Statement.”

The authors would like to thank Elizabeth Smith and Patricia McDaniel for their input to this article. 

A missed opportunity: The US Helsinki Commission hearing on the illicit tobacco trade in the OSCE region

25 Aug, 17 | by Marita Hefler, News Editor

 

Benoît Gomis, Kelley Lee, Ross MacKenzie

benoitg@sfu.ca

 

On 19 July 2017, the US Commission on Security and Cooperation in Europe (CSCE) – also known as the ‘Helsinki Commission’ – held a hearing on the illicit tobacco trade in the Organization for Security Co-operation in Europe (OSCE) region. The Helsinki Commission, an independent US government agency created in 1976 to “press governments to improve their human rights records and allow, despite Europe’s division, expanded contacts between people”, has discussed a number of important challenges, including human trafficking, anti-Semitism, treatment of ethnic minorities, weapons proliferation, corruption and terrorism. Through hearings, briefings, and official delegation visits, the Commission gathers evidence on such issues and contributes to the formulation and implementation of US policy towards the OSCE and its participating states.

To date, limited progress has been achieved on the illicit tobacco trade in the OSCE region. Globally, illicit tobacco accounts for around 11.6% (600 billion sticks) of supply, and US$40.5 billion in lost tax revenues annually. Despite the size and profitability of the trade, the risk of detection is relatively low and penalties generally light. In Europe, the illicit tobacco trade is estimated to be between 6 and 10% of overall consumption. Its nature has evolved from predominantly large-scale smuggling to include illegal manufacturing, including counterfeit production, cheap cigarette brands produced specifically for illicit markets overseas, and overproduction of regular cigarette brands. Overall, the illicit tobacco trade in the OSCE region reportedly stems from a murky blend of tobacco companies, including transnational tobacco companies (TTCs), and criminal elements, which both cooperate and compete for this lucrative trade. The latter includes criminal organizations which earn substantial income, while fuelling money laundering, corruption and other illicit activities. From a public health perspective, the illicit tobacco trade makes cigarettes more affordable and accessible, especially among youth and low-income populations, resulting in higher consumption.

In this context, a high-level public hearing by a US government agency on the issue of illicit tobacco trade is a much welcomed and timely opportunity to enhance understanding of the nature of the illicit trade in the OSCE region, the factors driving it, and the wider implications for the global community. This hearing is especially important given that the WHO Framework Convention on Tobacco Control (FCTC) Protocol to Eliminate Illicit Trade in Tobacco Products, adopted on 12 November 2012, has still to come into effect. At the time of writing, only 29 countries are party to the Protocol, with 12 more needed by 2 July 2018 for it to come into force. The US has yet to ratify the FCTC itself or sign the Protocol.

Unfortunately, given the selected range of issues addressed, and how they were framed in discussions, it is doubtful whether the hearing yielded any new insights. The panel of witnesses was composed of Louise Shelley, Professor of Public Policy at George Mason University, who researches transnational crime, terrorism and corruption, including the crime-terror nexus; David Sweanor, Adjunct Professor at the Faculty of Law, University of Ottawa, and a leading tobacco control expert whose areas of advocacy and research include extensive experience in analysing, monitoring, and litigating on, the global illicit cigarette trade; and Mark Firestone, Senior Vice President and General Counsel at Philip Morris International (PMI). While Sweanor and Shelley brought long standing experience in the illicit tobacco trade to the hearing, it notably did not include any representatives from law enforcement, regional experts, officials from any relevant international organization (e.g. WHO, Interpol, Europol, World Customs Organization, World Bank, United Nations Office on Drugs and Crime, or OSCE), or academics who have published relevant research on illicit tobacco.(see examples here, here, here and here.

The involvement of a representative of a leading transnational tobacco company in the panel seems particularly incongruous given substantial evidence of historical tobacco industry complicity in cigarette smuggling (see examples here and here)  and reports of their continued involvement. Tobacco companies have also generated inaccurate estimates of the size and nature of the illicit trade, and overstated the role of taxation, advertising restrictions, and packaging and labelling regulations as contributing factors. Further, industry lobbying against the illicit trade has focused on counterfeit products, a small portion of the total illegal cigarette market, as a distraction or means to further its own interests.

Guarding against industry interference is a key provision under the FCTC. Article 5.3 concerns the need for Parties to protect public health policies from “commercial and other vested interests of the tobacco industry”. Article 5.3 implementation guidelines recognise that some “interactions with the tobacco industry are necessary”, but recommends that these interactions be conducted in public, “for example through public hearings”. While the Helsinki Commission hearing was publicly held, as stated above, the odd balance of expertise, particularly the inclusion of a tobacco company representative, raises questions about industry interference.

Testimony provided raised a number of important points. Overall, however, the hearing did not adequately address four important issues. First, the complicity of the tobacco industry in the illicit tobacco trade was barely mentioned, as well as the ineffective law enforcement partnerships several tobacco companies have established with governments around the world. Instead, much of the discussion on the private sector focused on the role of new media in allowing users to post details about opportunities to purchase illicit cigarettes. Similarly, the growing role of tobacco companies independent of transnational tobacco companies, most notably in Asia, positioning themselves to ‘go global’ through legal and illicit trade, was not discussed. Effective efforts to address this substantial source of illegal activity depends on better understanding this complex and changing picture.

Second, there were several instances in which tax increases were brought up as the primary driver behind the illicit tobacco trade. This is a familiar industry-led narrative despite overwhelming evidence that this is not the case.

Third, there is an urgent need for independent data collection and analysis on the illicit trade. In many regions, the tobacco industry itself is the source of this information, even supplying data to public officials. Without reliable information on the scale of the problem and trends over time, it will be impossible to know how effective efforts are to curtail this illicit trade.

Finally, the importance of strengthening institutional capacity against the illicit trade was not discussed in depth. This would involve public health, customs and excise, and law enforcement agencies – with additional resources for a lead coordinating body, public awareness campaigns, and targeted enforcement along the entire production and distribution network including addressing the industry’s complicity.

Benoît Gomis is a research associate at Simon Fraser University, Canada where he focuses on the illicit tobacco trade in Latin America and the Caribbean, and an international security analyst. Kelley Lee is a Tier 1 Canada Research Chair in Global Health Governance, Simon Fraser University. Ross MacKenzie is a lecturer in Health Studies at Macquarie University, Australia. Their work is supported by the National Cancer Institute, US National Institutes of Health, Grant R01-CA091021

*This article was amended on 31 August 2017 to include additional details about the qualifications and experience of Louise Shelley and David Sweanor.

France: breaking new ground in tobacco control

2 Mar, 17 | by Marita Hefler, News Editor

The start of 2017 has seen tobacco control in France boosted with a series of ground-breaking tobacco control measures, as detailed in a recent article by Physicians for a Smoke-Free Canada.

After a phase-in period, cigarette plain packaging is fully in force as of 1 January 2017. As in other countries that have already introduced plain packaging, or are planning to do so, the tobacco industry and its mouthpieces fought strongly against the new law.

In a move which extends the impact of plain packaging, the French government has also applied Directive 2014/40 of the European Union, which directs member states to restrict tobacco presentation. On February 1, 2017 a regulation was issued that identifies product names judged to be contrary to the European Union Directive. The identified names will only be authorised for sale for one more year in France. Among the brand names and descriptors that will disappear from 2018 under the regulation are Vogue, Virginia Slims, Anis (licorice), Menthol and Biodegradable.

France has also introduced a new tax on tobacco company revenue. Expected to raise about 130 million Euros per year, the new funds will be used to finance further tobacco control initiatives. The measure is particularly significant because it closes a  loophole used by tobacco companies to avoid France’s high-tax regime.

To read the full details on the Physicians for a Smoke-Free Canada website click here.

Southeast Asia: Indonesia lags in curbing tobacco industry interference in policy making

11 Oct, 16 | by Marita Hefler, News Editor

Indonesia has once again emerged as a clear laggard in curbing tobacco industry interference in policy-making, according to a report ranking countries in the Southeast Asia region based on their level of implementation of Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC). It is the third annual report on tobacco industry interference prepared by the Southeast Asia Tobacco Control Alliance (SEATCA).

Indonesia is the only country whose score increased in both the 2015 and 2016 reports among the seven surveyed in all three years (Brunei, Philippines, Cambodia, Malaysia, Thailand, Lao PDR, Vietnam and Indonesia). Its 2014 score of 78 (the first year of the survey) reflected a very high level of interference, and exceeds the scores of all other countries in any year of the survey. Indonesia’s score has continued to worsen, and stands at 84 in the 2016 report. The maximum possible score is 100; a higher score reflects a greater level of interference.

fig-5-seatca-rankings

Ranking of countries in the Southeast Asia region by tobacco industry interference, as calculated by SEATCA. Source: 2015 ASEAN report on implementation of WHO Framework Convention on Tobacco Control Article 5.3.

 

 

 

 

 

 

 

 

 

 

The dismal result is a stark illustration of why Indonesia, one of only a handful of countries that has not signed the FCTC, is a tobacco control ‘rogue state’. The country achieved worldwide infamy in 2010 when a video of a smoking toddler went viral. The video prompted increased media coverage of the striking absence of effective tobacco control policies and regulation in Indonesia, a situation which tobacco companies have taken full advantage of to saturate the country in cigarette advertising.

The Global Adults Tobacco Survey (GATS) of 15 low and middle income countries with high tobacco use published in 2012 found that Indonesia was among the countries with the highest adult male smoking prevalence at 67%. The lax regulations extend to failure to protect Indonesians from secondhand smoke; the GATS also found that 85% of people who visited restaurants were exposed to tobacco smoked and 82% reported seeing cigarette advertising within the last month – exposure far higher than any other country surveyed. Unsurprisingly, Indonesia’s (male) youth smoking prevalence is among the highest in the world; according to the 2014 Global Youth Tobacco Survey, 35% of boys aged 13-15 are current smokers.

At the other end of the scale, the standout countries in the 2016 report were Brunei and the Philippines. Brunei was ranked first for the third year in a row with a score of 29, unchanged from 2014 and 2015. The Philippines has seen a dramatic improvement from a score of 71 in 2014 down to 38 in 2016. Cambodia and Malaysia have also shown consistent improvement from their 2014 scores to be ranked equal fourth at a score of 49 in 2016.

The SEATCA report can be accessed by clicking here. 

Uruguay: five key messages from Philip Morris’ failed challenge to packaging laws

31 Aug, 16 | by Marita Hefler, News Editor

Hot on the heels of the tobacco industry’s failed legal challenge to the UK’s tobacco plain packaging laws in May 2016, Philip Morris suffered a new defeat in July, this time in its long-running case against Uruguay’s health warning labels.

The McCabe Centre for Law and Cancer has prepared a paper outlining key aspects of the judgement which are relevant for other governments planning to implement similar legislation to meet their obligations under the World Health Organization Framework Convention on Tobacco Control (FCTC).

The key points explored in detail in the analysis are:

  1. Uruguay’s measures did not substantially deprive Philip Morris of its investments or frustrate any expectations related to those investments
  2. States have a right to regulate in the public interest, including for public health
  3. It is not the role of investment tribunals to second-guess policy decisions, particularly where the evidence is complex or contested
  4. The WHO FCTC and its Guidelines add legal and evidentiary weight in support of states’ tobacco control measures
  5. Public health is an important normative value in investment law adjudication

Full details, including the paper can be found here: http://www.mccabecentre.org/blog/who-fctc-implementation-after-philip-morris-v-uruguay-five-key-messages-from-the-award.html

More analysis:

UK plain packs court decision: interests at stake ‘collide in the most irreconcilable of ways’

4 Jul, 16 | by Marita Hefler, News Editor

The decision on 19 May 2016 by the High Court of Justice of England and Wales to dismiss the legal challenges brought by the four multinational tobacco companies against the UK’s tobacco plain packaging legislation was a major blow to the industry. The 386 page ruling addresses a wide range of legal claims and evidence; together with lessons learned from the industry’s failed attempts to overturn Australia’s 2012 plain packaging legislation, it provides an important resource for countries planning to introduce similar laws.

The McCabe Centre for Law and Cancer, a joint initiative of Cancer Council Victoria and the Union for International Cancer Control, has prepared a paper on the UK decision which draws out eight key aspects likely to be of widest relevance to litigation and policy development in other jurisidictions. Included in the aspects of the ruling which are explored and analysed are: the intent and limits of the laws, the conflicting interests of the tobacco industry and public health, the complementary nature of comprehensive tobacco control measures, and the relevance of the World Health Organisation Framework Convention on Tobacco Control.

Some notheworthy points in the analysis:

  • “…the Court points out that tobacco companies overstate the restrictive effects and implications of standardised packaging legislation” (page 4)
  • “The Court noted that the interests at stake ‘collide in the most irreconcilable of ways” (page 4)
  • “The Court notes that not all rights and interests are of equal value or worth. The protection of public health is one of the highest of all public interests. Health is a fundamental right” (page 5)
  • “…the Court notes that effective tobacco control requires the implementation of a number of complementary, mutually reinforcing measures, and that it can be difficult (if not impossible) to evaluate the contribution of individual measures in isolation to the reduction of tobacco use” (page 6)
  • “…the Court recognises that tobacco control does not and cannot stand still if it is to be effective (page 7)
  • “…the Court recognises the fundamental reality of intellectual property rights – they are created and protected to serve public purposes and interests, and are not absolute. Their exercise can be limited or restricted to serve other public purposes and interests. Public health is universally recognised as a public purpose and interest which justifies limitations and restrictions on the exercise of intellectual property rights” (pages 10 and 11)
  • “…the Court explains why, even if standardized packaging laws did constitute an expropriation of property, standardized packaging would fall within the category of ‘exceptional’ circumstances in which it would not be appropriate to require the payment of compensation” (page 13)

The full paper can be accessed by clicking here.

The McCabe Centre for Law and Cancer Framework Convention on Tobacco Control Knowledge Hub provides a public resource on legal issues relevant to tobacco control. Click here to link to the Hub.

 

Industry-funded International Tax and Investment Center responds to criticism by attempting to muddy the waters

24 Jun, 16 | by Marita Hefler, News Editor

Karen A Evans-Reeves, Anna B Gilmore and Andy Rowell

Tobacco Control Research Group, University of Bath,

The tobacco industry is under attack. In just two weeks, in May 2016, its tactic of challenging any law that threatens its profits, took a big hit. The arbitration panel, that tobacco giant Philip Morris International (PMI) had hoped would overturn standardised packaging legislation in Australia, published its full ruling that the company’s self-serving claims were inadmissible. Just days later, all four major tobacco companies lost their challenges against both the European Union’s Tobacco Products Directive and standardised packaging legislation in the UK.

The UK, France and Ireland, which have already enacted standardised packaging legislation, will now go ahead with this brand removal. Further afield Canada, New Zealand, Hungary and Norway are due to follow suit and other countries which have expressed an interest will be buoyed by the way the industry’s legal and trade challenges to plain packs are being soundly rejected. The World Health Organization’s (WHO) slogan for World No Tobacco Day 2016 was “Get Ready for Plain Packaging” recognising that the removal of branded tobacco packaging is “going global.”

Each jurisdiction to consider standardised packaging legislation has received sustained attacks from tobacco companies, using both their own voices and those of third parties which they fund. By commissioning and publicising research reports and opinions from seemingly independent experts, tobacco companies have created not only the impression of a large network of opposition but of an illusory body of evidence, particularly in relation to the industry argument that standardised packaging will increase the illicit tobacco trade.

PMI private documents, leaked to Action on Smoking and Health (UK), revealed that “broad third-party media engagement” and “high profile opinion pieces” would be used to raise awareness of such arguments among “decision makers and the general public” as part of its attempt to prevent standardised packaging in the UK. These documents also revealed that PMI intended to use the International Tax and Investment Centre (ITIC) as one of its key “media messengers”. Since 2012, PMI has paid ITIC (in collaboration with global advisory firm, Oxford Economics) to produce annual reports on the illicit trade in Asia. These claimed that illicit trade is increasing in the region but have been accused of being methodologically flawed. When publicly available routine data was used in an attempt to replicate ITIC’s findings in Hong Kong, illicit levels were found to be under half of what ITIC had estimated.

Key to the industry’s use of third parties is its attempt to shift the paradigm by presenting third parties as ‘independent experts’ and their research as ‘trustworthy and rigorous’ while simultaneously positioning public health academics as ‘advocates’ and ‘zealots’ and their research as ‘advocacy’. This presentation of corporate pawns as informed moderates producing quality work and public health researchers as misguided fundamentalists producing poor quality work is a public relations tactic employed for decades by corporations in relation to environmental and health issues.

Over the last few weeks this tactic has been adopted by the tobacco industry third party, ITIC, in a series of letters sent to Non-Governmental Organisations (South East Asia Tobacco Control Alliance (SEATCA), ASH (UK), EU SmokeFree Partnership), the University of Bath in the UK, and the Editors of Tobacco Control, all of whom had criticised ITIC’s activities, some in letters, reports and webpages. ITIC’s letters made three inter-related claims, each of which we explore in the paragraphs below.

First, that public health research should be seen as advocacy while, by contrast, ITIC’s research (none of which appears to be peer-reviewed) should be seen as high quality. For example, in his letter to the University of Bath the President of ITIC, Daniel Witt, claimed:

We have become increasingly concerned about how the integrity of reputable institutions and individuals is maligned by overzealous advocacy ….. and ….by what passes for academic research when it is clearly constructed to fulfil an advocacy agenda”.

This denigration of public health research has been strongly criticised by independent experts. In her 2006 verdict in an extortion case against the tobacco industry in the United States Judge Gladys Kessler noted:

Much of the Defendants’ [i.e. the tobacco industry’s] criticisms of Government witnesses focused on the fact that these witnesses had been long-time, devoted members of “the public health community.” To suggest that they were presenting inaccurate, untruthful, or unreliable testimony because they had spent their professional lives trying to improve the public health of this country is patently absurd”.

The recent high court ruling on the challenges made by British American Tobacco, PMI, Japan Tobacco International and Imperial Tobacco to UK standardised packaging legislation made a similar point, citing Sir Cyril Chantler’s 2015 review of the evidence:

Chantler … rejected the criticism made by the tobacco companies that those that advised the Government were biased against the industry. Conversely, he articulated scepticism about the methodological efficacy of research results generated by the tobacco companies. He also criticised the tobacco companies for adopting unrealistic criticisms of the output of existing researchers…

This ruling drew upon two peer-reviewed papers, one confirming the poor quality of industry evidence in comparison to public health evidence on standardised packaging and the other paper showing how BAT and JTI  went about distorting and misrepresenting public health evidence.

ITIC’s second claim is that it is not a lobby group. Yet based on widely accepted definitions of lobbying, ITIC’s own descriptions of its activities, and the global health communities’ observations of its behaviour, ITIC clearly acts as a lobbying organisation. Indeed, it has persistently boasted of its lobbying success. in 1995, ITIC produced a document which outlined how “ITIC has developed trusted, advisory relationships with key, senior-level policy makers…..[which]…provide channels for private sector expertise to reach the Government before, during and after the official policy-making process. This combination…… provides ITIC and its sponsors a ‘seat at the policy-making table’”. And in 2004, Daniel Witt, ITIC’s President noted: “ITIC is a public policy organization actively working to change public policy in a pro-investment direction.” Although ITIC claims to be an “independent, non-profit research and educational organization” it receives tobacco company funding and has industry representatives on its Board of Directors.  Outputs such as the Asia-11 and Asia-14 illicit trade indicator studies, commissioned by PMI and published by ITIC along with global advisory firm Oxford Economics, have been critiqued by Dr Hana Ross (on behalf of SEATCA) for opaque methodology and “unverifiable” results that were “inconsistent with results from other studies” in the region (for more on this issue, read here). In 2014, ITIC attempted to destabilise the proposed guidelines on tobacco tax and price policy by convening a meeting with Parties and Observers to the Framework Convention on Tobacco Control (FCTC) immediately prior to the sixth Conference of the Parties (COP6). The Convention’s Secretariat blasted ITIC for this move.

Finally, in each letter, ITIC’s President, Daniel Witt argues that public health organisations ought to engage with ITIC given its tax expertise. This position displays a fundamental misunderstanding of the FCTC’s Article 5.3 which aims to protect policy making from the vested interests of the tobacco industry. It also displays a fundamental lack of understanding of public attitudes to ITIC. For example, the World Bank withdrew from an ITIC event in India, following a letter from the Institute of Public Health in the country,  similarly, following a letter from ASH (UK), the UK Department for International Development (DfiD) asked ITIC to remove its name, from its list of sponsors on ITIC’s website as DfiD has never been a sponsor, and the FCTC Secretariat has urged all governments not to engage with ITIC.

SEATCA and the University of Bath have respectively published and sent to ITIC detailed rebuttals of ITIC’s letters to them. These rebuttals and the aforementioned high court rulings are unlikely to deter ITIC from trying to influence tobacco control policies such as standardised packaging across the globe and undermining Article 5.3 of the FCTC. But the more people who reject engagement with ITIC, the harder it will be for ITIC to boast that it can get its tobacco industry clients a “seat at the policy making table”.

Germany: tobacco graphic health warnings to finally turn the tide?

16 Apr, 16 | by Marita Hefler, News Editor

In a welcome step forward from the weak text-only ‘smoking can be deadly’ and similar warnings that have thus far graced cigarette packs, Germany is set to introduce graphic health warnings.

Despite tentative progress in recent years, Germany has historically been one of Europe’s poster children for tobacco control legislative failure. That reputation may begin to change from 20 May, when gory pictures of black lungs, dead bodies and other consequences of smoking will be plastered over two thirds of the surface area of cigarette packs, in line with European Union regulations.

While the news is welcome, much remains to be done: Germany has long languished near the bottom of European countries for its many shortcomings in tobacco control policy and implementation.

Although some smoke free legislation is in place, lax advertising restrictions have allowed tobacco companies to continue to use advertising billboards in Germany – one of only two European countries which have not yet outlawed such a blatant violation of the FCTC. Even neighbouring Austria, the perennial ‘rogue state’ of European tobacco control, does not allow cigarette billboards.

According to the German Cancer Research Center, 121,000 people die from smoking-related causes each year, representing 13.5% of all deaths in Germany. There are significant regional variations in the country, with the percentage of smoking-related deaths as high as 23% in some places.

The introduction of graphic health warnings signals a pivotal moment which it is hoped will be the beginning of serious tobacco control legislation and the inexorable decline of smoking in Germany.

Europe tobacco control scale - rankings

Ranking of 34 European countries in 2013 according to the Tobacco Control Scale. See http://www.europeancancerleagues.org/images/TobaccoControl/TCS_2013_in_Europe_13-03-14_final_1.pdf

Liability: untapped potential in the Framework Convention on Tobacco Control

11 Apr, 16 | by Marita Hefler, News Editor

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)

Tobacco industry attacks WHO, but only incriminates itself

26 Feb, 16 | by Marita Hefler, News Editor

 

Mary Assunta, Southeast Asia Tobacco Control Alliance

The tobacco industry lost the health argument 50 years ago, and in the past decade the WHO Framework Convention on Tobacco Control (FCTC) developed the antidote to reverse the smoking epidemic. However the tobacco industry is stepping up direct attacks, particularly at WHO. Recently the industry took pot shots yet again at WHO and the FCTC Conference of the Parties (COP) in its mouthpiece, Tobacco Reporter. The article, (Snail Mail, Jan 2016) makes several ludicrous accusations against both WHO and the COP but ends up only incriminating itself. We pull quotes from the article and provide our response.

TR: “Most of the besuited classes that turn up at COP7 will have few insights into the lives of the financially impoverished people who tend to make up the world’s smokers.

SEATCA: In reality the tobacco industry has been making billions in profits from selling cigarettes to financially impoverished people all over the world. Eighty percent of the world’s 1.2 billion smokers are in developing countries http://www.who.int/mediacentre/factsheets/fs339/en/. Studies have shown that in the poorest households in many low-income countries, spending on tobacco products often represents more than 10% of total household expenditure http://www.who.int/tobacco/research/economics/rationale/poverty/en/. Don’t forget the famous response from the R.J. Reynolds executive when asked why he didn’t smoke: “We don’t smoke that shit! We just sell it. We reserve the right to smoke for the young, the poor, the black and the stupid.”

TR: “People who turn up at COP7 will almost certainly be well-fed and cossetted

SEATCA: Government officials make up the bulk of the delegates who attend the COP and it seems the industry has no qualms insulting them.

TR: “Wonder whether these smokers really want to trade in what is possibly one of the few enjoyments they have for the few extra years of poverty and struggle …

SEATCA: Most smokers started smoking when they were still minors and did not know any better. Most smokers (70%) want to quit. What the industry refers to flippantly as “few enjoyments” actually leads to illness for many million smokers. Worldwide, about 6 million people die each year , often painfully, because of smoking. This not only affects smokers – it devastates families, emotionally and financially.

TR: “There are far too many people demonizing smokers…

SEATCA: The FCTC does not demonise smokers. It does the reverse to help smokers quit. Smokers are addicted to nicotine and exposed to the thousands of harmful chemical compounds in the product. Two out three of the tobacco industry’s long term customers die prematurely because of their smoking, however the industry continues to push this harmful product. FCTC measures are aimed squarely at the industry, protecting non-smokers and supporting smokers to quit.

TR: “… making decisions about cigarette smoking without understanding it.

SEATCA: There is no misunderstanding because the evidence is in – cigarette smoke contains 7,000 chemical compounds, many of which are carcinogenic.

TR: “People choose to smoke.

SEATCA: Nicotine addiction is not a choice. Most smokers want to quit but find it hard – the addiction is potent displaying similarities to hard drugs such as cocaine and heroin. For decades, the tobacco industry denied or downplayed the harms of tobacco, and it has engineered its products to enhance their addictiveness. It has fought regulations to protect non-smokers from cigarette smoke, restrictions on advertising, and health warnings to inform the public about the danger of smoking.

The WHO is fulfilling its responsibility to support 180 governments’ obligation to implement the FCTC to reduce tobacco use and reverse the smoking epidemic to save lives. An industry that continues to peddle a product that kills has lost the basic concept of humanity.

Shame on the tobacco industry for exploiting the poor and taking pot shots at the WHO and the COP.

 

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