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A landmark achievement of the third Conference of the Parties to the WHO Framework Convention on Tobacco Control (WHO FCTC) in Durban, South Africa, in November 2008, was the unanimous adoption of specific guidelines to safeguard public health policies against tobacco industry interference (full text available online: http://www.who.int/fctc/guidelines/article_5_3.pdf). The FCTC, in Article 5.3, obligates ratifying countries to “act to protect [public health] policies from commercial and other vested interests of the tobacco industry in accordance with national law”.1
The Article 5.3 implementation guidelines recognise in Guiding Principle #1 that, “There is a fundamental and irreconcilable conflict between the tobacco industry's interests and public health policy interests.”2 What's good for tobacco industry profits—hooking kids, manipulating nicotine to keep people addicted, targeting the Global South for expansion of its deadly business—is by definition bad for public health.
Negotiators of the FCTC included Article 5.3 because they understood that Big Tobacco was bound to use its economic and political power to undermine every proven public health measure prescribed by the treaty—from comprehensive bans on tobacco advertising, promotion and sponsorship, to effective warning labels, to smoke-free environments, to combating illicit trade.
Even today, with the FCTC in force in 168 countries, interference by tobacco corporations like Philip Morris International (PMI), British American Tobacco and Japan Tobacco poses the single greatest threat to implementation of the treaty's life-saving measures.
The third round of negotiations toward an illicit trade protocol to the FCTC (INB3-ITP), in Geneva in July 2009, was the first worldwide meeting of ratifying countries after Durban. An innovative international application of Article 5.3 and its guidelines at INB3-ITP merits examination for its actual and potential impact on the protocol negotiations, and as an example of the broad implications of Article 5.3 for FCTC implementation and enforcement.
The tobacco lobby at INB3-ITP
Big money is at stake in negotiations toward an FCTC protocol to combat illicit trade in tobacco. According to a recent report, illicit cigarette trade amounts to 11.6% of the global market and costs governments US$40.5 billion annually in lost revenue.3 Tobacco transnationals have benefited from, and even been complicit in, illicit trade in tobacco.4 Illicit trade can open up new markets for brands like PMI's Marlboro, British American Tobacco's Dunhill and Japan Tobacco's Mild Seven, and keep new customers addicted with lower-priced tobacco products that have evaded taxes. A global system to track and trace tobacco products would be a serious enterprise, with much to be gained or lost in its design or control.
Thus, it was no surprise that tobacco transnational executives and lobbyists turned out in force for the negotiations in Geneva. Their objectives apparently included convincing governments to ignore their obligations under the FCTC and make exceptions to the new guidelines.
At the Intercontinental Hotel up the road from the conference centre where the negotiations were underway, PMI hosted closed-door meetings with government delegates to demonstrate a system it claims can track and trace tobacco products (personal observation by a Corporate Accountability International representative at Intercontinental Hotel in Geneva, 29–30 June 2009). Government representatives participating in such meetings flout Article 5.3 guidelines, which recommend that treaty parties limit interactions with the tobacco industry and ensure the transparency of any interactions that must occur. According to Recommendations 2.1 and 2.2 of the guidelines:
“Parties should interact with the tobacco industry only when and to the extent strictly necessary to enable them to effectively regulate the tobacco industry and tobacco products.”
“Where interactions with the tobacco industry are necessary, parties should ensure that such interactions are conducted transparently. Whenever possible, interactions should be conducted in public—for example, through public hearings, public notice of interactions, disclosure of records of such interactions to the public.”5
A PMI representative boasted that the corporation has met 8000 government employees in just the past year—and 2800 government agencies overall—to promote its system for tracking and tracing cigarette products (personal communication by PMI Vice President, Fiscal Affairs and International Trade, Huub Savelkouls, and a PMI technical adviser, with Corporate Accountability International representative, 30 June 2009).
Inside the conference centre, 48 of the 52 so-called public badges issued on the first full day of the negotiating session went to tobacco industry representatives (personal communication by the author with FCTC Secretariat, 1 July 2009). Once the tobacco industry lobbyists were inside the building, they took full advantage of their access to government negotiators. During the welcome reception, several industry representatives enjoyed drinks, snacks and informal conversation with delegates.
Fortunately, many treaty parties were alarmed by the tobacco industry's infiltration of the meeting. At midweek, they met in closed session and decided to keep the tobacco industry out of the negotiations, even in the guise of the public. This was the first time Big Tobacco lobbyists had been kicked out of the FCTC process—a move made possible by a reference to Article 5.3 in the treaty's rules of procedure, backed up by the unanimously approved guidelines.
According to Rule 32 of the FCTC Rules of Procedure, sessions of the Conference of the Parties and its subsidiary bodies “shall be held in public, unless the Conference of the Parties decides that they shall be restricted. This rule shall be implemented in conformity with Article 5.3 of the Convention”.6 Based on this rule, the parties represented at INB3 decided to allow nongovernmental organisation (NGO) observers to remain, but exclude the general public as a means to eliminate commercial and other vested interests of the tobacco industry.
The INB determined that the danger of tobacco industry interference, and the obligation of Article 5.3, outweighed the interest of openness to the public, presumably taking into consideration the overwhelming majority of industry representatives among the “public” observers. This was not an easy decision. Since the unanimous adoption of the FCTC, every decision had been made by consensus, but this one went to a vote.
Two important factors ensured the transparency of INB3:
By preserving the access of NGO representatives to the negotiations, parties upheld Article 4.7 of the FCTC, which states as a guiding principle that “The participation of civil society is essential in achieving the objective of this Convention and its protocols”.7 The INB decision also affirmed the Preamble's emphasis on “the special contribution of nongovernmental organisations and other members of civil society not affiliated with the tobacco industry…to tobacco control efforts nationally and internationally and the vital importance of their participation in national and international tobacco control efforts”.8 Civil society performs an indispensable watchdog function, even when it is uncomfortable for parties.
Members of the press were never excluded from the conference centre. An Associated Press reporter was admitted after the INB's decision to stop issuing “public” badges, and wrote a widely circulated article about the INB's decision.9
Now, parties to the FCTC must remain vigilant as the tobacco industry steps up its efforts to evade the treaty's safeguards. The experience of WHO and many countries proves that tobacco corporations must not be allowed to police themselves. Citing World Health Assembly Resolution 54.18, Article 5.3 guidelines begin by noting that, “the tobacco industry has operated for years with the expressed intention of subverting the role of governments and of WHO in implementing public health policies to combat the tobacco epidemic”.10
Next steps should include:
Removing tobacco industry representatives from all delegations to treaty-related meetings, in accordance with Recommendations 4.9, 8.2 and 8.3 of Article 5.3 guidelines. According to the official INB3 List of Participants, Japan, Vietnam and China all had representatives of the tobacco industry on their delegations to the negotiations in Geneva. The Japanese government holds a 50% stake in Japan Tobacco, the #3 tobacco transnational, and Japan's delegation included two people directly involved in managing the tobacco business. Vietnam sent two members of the Vietnam Tobacco Association as members of its delegation. China's delegation included three representatives of the state-owned tobacco company (now in a joint venture with PMI).11 The fourth round of illicit trade protocol negotiations in Geneva in March 2010, and the fourth Conference of the Parties (COP4) in Uruguay in late 2010 should be free from such conflicts of interest.
Ensuring that the text of the illicit trade protocol and all treaty instruments are consistent with Article 5.3 and its implementation guidelines. The tobacco industry has a vested interest in weakening, co-opting or delaying the proposed protocol, which would expand parties' obligations to curb illicit trade, as well as new guidelines, which clarify best practices in relation to existing obligations. Guidelines and recommendations on Articles 9 and 10 (product regulation and disclosure), Article 12 (education and public awareness), Article 14 (tobacco dependence and cessation) and Articles 17 and 18 (alternatives to tobacco cultivation, and protection of the environment) are now being developed. Before adopting the protocol or any of these instruments, COP4 should scrutinise them for coherence with Article 5.3 guidelines.
Carefully screening NGOs that apply for accreditation to the Conference of the Parties, to be certain that none with tobacco industry ties slip through the cracks. When avenues for direct tobacco industry participation in the treaty are closed, tobacco corporations may use their time-honoured strategy of setting up front groups to advance their interests. The FCTC Rules of Procedure anticipate this situation, and provide clear guidance. According to Rule 31.2, “Other international and regional nongovernmental organisations whose aims and activities are in conformity with the spirit, purpose and principles of the Convention, may apply for observer status, which may be granted by the Conference of the Parties, based on the report of the Secretariat, and taking into account the 17th and 18th preambular paragraphs as well as Article 5.3 of the Convention.”
Taking an integrated approach to FCTC implementation that recognises the relationship between Article 5.3 and other treaty obligations. Article 5.3 reinforces measures such as smoke-free environments (Article 8), effective warning labels (Article 11) and comprehensive bans on tobacco advertising, promotion and sponsorship (Article 13). Approved guidelines for these articles highlight specific tobacco industry tactics in these policy areas and recommend corresponding countermeasures to be taken by parties.
Following through with full implementation of Article 5.3 at the domestic level. Among other provisions, parties should:
keep tobacco industry representatives off domestic tobacco control bodies (Recommendation 4.8)
reject partnerships and non-binding or non-enforceable agreements with tobacco corporations (Recommendation 3)
require the tobacco industry to disclose its activities, affiliates and lobbyists, with penalties for providing false or misleading information (Recommendation 5).
PMI spokesperson Greg Prager condemned the decision to kick the tobacco industry out of the negotiations: “It sets a dangerous precedent for the United Nations in what should be a democratic and transparent process.”9 Prager is wrong: the unprecedented decision made by the FCTC parties was democratic, and the transparency of the INB process remains intact through NGO participation and press access. By taking action to safeguard the illicit trade protocol negotiations against the tobacco industry's fundamental and irreconcilable conflict of interest, the FCTC parties have indeed set a precedent, but it is one that will increase transparency, foster democracy and save lives.
What this paper adds
Numerous studies, including investigations into the internal documents of tobacco corporations, have established the motives and methods for the tobacco industry to influence, obstruct and interfere in health policy related to tobacco control. A solid and growing body of evidence, such as the inquiry into tobacco company strategies to undermine tobacco control activities of WHO, led negotiators of the Framework Convention on Tobacco Control (FCTC) to include Article 5.3 in the treaty text in 2003. In 2008, FCTC parties unanimously approved implementation guidelines for Article 5.3, recommending specific countermeasures against particular forms of tobacco industry interference that have been documented in the literature and demonstrated through practical experience.
Just months after the adoption of these guidelines, FCTC parties took a historic decision to remove tobacco industry lobbyists from the negotiations toward an illicit trade protocol to the treaty. This paper examines this precedent-setting application of Article 5.3 and presents additional recommendations for future implementation of the Article 5.3 guidelines.
The author served as International Policy Director of Corporate Accountability International until December 2009. She has been involved in the FCTC process since 1998. She participated in the working group that developed Article 5.3 guidelines, including as the sole NGO observer in meetings to hash out the final text during the 3rd Conference of the Parties in Durban, South Africa, in November 2008. The author extends her appreciation to colleagues with Corporate Accountability International and the Network for Accountability of Tobacco Transnationals (NATT), especially Bryan Hirsch and Philip Jakpor, who helped to expose and challenge tobacco industry lobbyists at INB3-ITP in Geneva.
Funding Other Funders: Corporate Accountability International members.
Competing interests None.
Provenance and peer review Commissioned; not externally peer reviewed.