Gian Luca Burci discusses this breakthrough treaty that continues to stand alone

International tobacco control, signified by the World Health Organization Framework Convention on Tobacco Control (FCTC), has developed into a key testing ground for many aspects of global health governance and the development of international health law. The FCTC disrupted global health by providing a framework for regulating tobacco, its marketing, and its production processes. We now need to see whether the framework can significantly reduce smoking rates and control the influence of the tobacco industry around the world. If so, it could provide a blueprint for the control of the commercial drivers of other risk factors of non-communicable diseases.

The worsening tobacco epidemic, and the realisation that the tobacco industry was using the economic liberalisation of the 1990s to expand and consolidate, disrupted the global health community’s approach to tobacco control, leading to an unprecedented legal solution. The FCTC is the product of the convergence of a possibly unique set of factors: a bold and powerful WHO director general—Gro Harlem Brundtland—who set tobacco control as an organisational priority, the massive mobilisation of influential and well resourced non-governmental organisations, the determination of a large number of states that were struggling with the spiralling health costs of tobacco, the growing social stigma around tobacco and its industry, and a spreading consensus that health is a paramount value in a globalised world.

The FCTC is a landmark treaty, being the first and only international instrument that regulates the consumption and commercialisation of a legal consumer product. It is also ideologically unique—it expresses the rejection and isolation of an entire commercial sector, which can never be a legitimate counterpart of the health community and should ideally go out of business. Feelings against the industry are so strong that the public are excluded from many FCTC meetings, to ensure that they are protected against any influence from industry representatives. This is unprecedented in UN meetings.

Although the FCTC is full of painful compromises, it has been successful and effective in many respects. With 181 parties as of October 2018, it is one of the most ratified UN system treaties. The conference of the parties—the FCTC’s governance mechanism—has produced a growing body of guidelines to help strengthen the convention by assisting in its implementation. It also provides a forum for political declarations of support for health policies against corporate interference and serves as a catalyst for the mobilisation of civil society, which is crucial for maintaining momentum and shaming recalcitrant countries.

The FCTC has proved decisive in recent unsuccessful trade and investment lawsuits directed against national measures that affect industry profits, such as moves towards plain packaging for cigarettes. In these cases, the authority of states to implement policies for health protection purposes has largely prevailed over corporate economic rights. The FCTC and its guidelines were considered the expression of a normative consensus on effective and proportionate control measures.

These victories should reassure developing countries that have been pressured by the tobacco industry to abandon strong control measures under the threat of costly lawsuits. At the same time, national implementation of the FCTC has been uneven. The most recent progress report on the convention shows that progress on global smoking rates is stagnating, 13 years after the FCTC entered into force. [1] The FCTC protocol on illicit trade, which took six years to enter into force and had only 48 parties as of October 2018, is still untested and may prove costly and complex to implement both for parties and for its secretariat. [2] Moreover, the focus on tobacco has complicated regulatory responses against new products such as electronic cigarettes. Finally, the “heavy” treaty approach of the FCTC may have deterred countries, probably lobbied by commercial interests, from going down the same route of regulation for other risk factors of non-communicable disease, such as alcohol, highly processed food, or carbonated drinks. Regulation of these products and industrial processes largely relies on voluntary commitments.

Even though the FCTC has validated the package of regulatory measures to tackle non-communicable disease risk factors, the jury is still out on whether it will pave the way for further international health law treaties. Nevertheless, the FCTC is a historic and successful instrument for global health, both for its approach and level of implementation, and for the political momentum that it symbolises.

Gian Luca Burci is adjunct professor, Department of International Law and Global Health Centre, Graduate Institute of International and Development Studies, Geneva

Competing interests: None declared.

References:

1 World Health Organization. Global progress report on implementation of the WHO Framework Convention on Tobacco Control. 2018. http://www.who.int/fctc/reporting/WHO-FCTC-2018_global_progress_report.pdf

2 World Health Organization. First Session of the Meeting of the Parties to the Protocol to Eliminate Illicit Trade in Tobacco Products. 2018. http://www.who.int/fctc/protocol/mop/en/