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The impact of the WHO Framework Convention on Tobacco Control in defending legal challenges to tobacco control measures
  1. Suzanne Y Zhou1,
  2. Jonathan D Liberman1,
  3. Evita Ricafort2
    1. 1 McCabe Centre for Law and Cancer, Melbourne, Victoria, Australia
    2. 2 McCabe Centre for Law and Cancer, Manila, Philippines
    1. Correspondence to Suzanne Y Zhou, McCabe Centre for Law and Cancer, Cancer Council Victoria, Melbourne, VIC 3004, Australia; suzanne.zhou{at}cancervic.org.au

    Abstract

    Background Since the WHO Framework Convention on Tobacco Control’s (FCTC) entry into force, the tobacco industry has initiated litigation challenging tobacco control measures implemented by governments around the world, or supported others to initiate such litigation on its behalf. In defending their tobacco control measures against such litigation, governments have invoked their obligations and rights under the WHO FCTC. We assess the extent to which the WHO FCTC has provided legal weight to governments’ defences against legal challenge.

    Methods We reviewed 96 court decisions concerning legal challenges to tobacco control measures, determining whether or not they cited the WHO FCTC and their outcomes. We then reviewed the cases where the WHO FCTC was cited, analysing how the WHO FCTC contributed to the resolution of the case.

    Results The WHO FCTC was cited in 45 decisions. Decisions both citing and not citing the WHO FCTC were largely decided in favour of governments, with 80% of WHO-FCTC-citing and 67% of non-WHO-FCTC-citing cases upholding the measure in its entirety and on every ground of challenge. In cases where it was cited, the WHO FCTC contributed to the resolution of the case in favour of governments by providing a legal basis for measures, demonstrating the measure’s public health purpose, demonstrating the evidence in favour of a measure, demonstrating international consensus, demonstrating that a measure promotes or protects health-related human rights and demonstrating whether or not a measure is reasonable, proportionate or justifiable.

    Conclusions The way the WHO FCTC has been cited in court decisions suggests that it has made a substantial contribution to courts’ reasoning in tobacco control legal challenges and has strengthened governments’ arguments in defending litigation.

    • litigation
    • tobacco industry
    • public policy
    • global health
    • human rights

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    Footnotes

    • Contributor Anita George, McCabe Centre for Law and Cancer, Melbourne, Victoria, Australia.

    • Contributors The paper was conceptualised by SYZ and JDL, with the methodology and overall conceptual framework of the paper adapted from an earlier review of case law conducted by Anita George and JDL as evidence to inform the Impact Assessment Expert Group’s report. The review of case law was conducted by SYZ and ER and supervised by JDL. SYZ drafted the paper. JDL and ER critically reviewed and revised draft versions of the paper. All authors approved the submitted version.

    • Funding The research was partly funded by a grant from the Australian Department of Health (grant agreement 4-4O7WBF3). ER’s contribution was partly supported by a grant from the Australian Department of Foreign Affairs and Trade (grant agreement 71101).

    • Competing interests The McCabe Centre is a WHO FCTC Knowledge Hub focusing on legal challenges to implementation of the WHO FCTC. In this role, it supports governments and others to maximise the legal weight and power of the WHO FCTC in implementing and defending tobacco control measures. Several of the cases cited in this paper were defended by lawyers who have participated in the McCabe Centre’s Knowledge Hub activities.

    • Patient consent Not required.

    • Provenance and peer review Not commissioned; externally peer reviewed.

    • Data sharing statement Further details about the cases reviewed may be obtained by contacting the corresponding author.

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