The Framework Convention on Tobacco Control1 (FCTC), which has now been ratified by 166 countries, is the first global public health treaty to be developed by the World Health Organization and represents a crucial milestone for tobacco control. In recognition of systematic, often covert tobacco industry efforts to undermine tobacco control policy, Article 5.3 of the FCTC specifically requires that, “in setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law”.1 The impact of Article 5.3 depends on governments’ commitment to implementing the guidelines agreed in Durban, in November 2008.2 Given that tobacco industry success in undermining tobacco control to date has relied on its ability to influence policy,3 it is perhaps unsurprising that tobacco companies lobbied hard against the Article 5.3 guidelines and are now trying to undermine their implementation by claiming that they contravene existing commitments to “better regulation” and “good governance”.4 5 6 7 What the companies fail to acknowledge is that at least one major tobacco company, British American Tobacco (BAT), had a lead role in promoting these concepts.

In the European Union and the United Kingdom the strategy being employed by major tobacco companies (both before and after the agreement of the Article 5.3 guidelines) is to claim that Article 5.3 contravenes existing official standards on consultation because it requires complete exclusion of the tobacco industry from policy discussions (in fact, it merely requires that consultation should be limited to that which is strictly necessary and should be transparent and accountable). Such claims are frequently framed within broader policy commitments to “better regulation” or “good governance”, as table 1 illustrates.

What these claims do not reveal is that BAT, lobbying through various front groups, had a crucial role in promoting the concept of better regulation in the EU and the UK, including the notion that the European Commission must consult “interested parties” and undertake a form of impact assessment (or cost-benefit analysis) focusing on potential costs to businesses.8 9 Internal company documents, released as a result of litigation, show that from 1996 onwards, BAT established a coalition of companies and worked with a widely respected thinktank, the European Policy Centre (EPC), to ensure that corporations would be included in European policy discussions and formally consulted early in policymaking processes.10 11 These efforts included the publication by the EPC, in September 2001, of an officially commissioned paper on business impact assessment.12 This paper was based on work by the EPC Risk Forum which was chaired by BAT’s head of science and regulation. It argues that better consultation is needed during policy development and recommends that the commission should establish “mandatory standards for consultation”, which would involve stakeholders at a very early stage in the policymaking process. This paper is drawn on heavily in a business impact assessment pilot report subsequently produced by the commission,13 whose recommendation that “[k]ey minimum standards for consultation should be implemented” appears to have been based directly on the EPC paper. In December 2002, precisely such “minimum standards” for consultation were published by the European Commission (taking effect on 1 January 2003).14 As might be expected, these standards stress the need for early consultation with interested parties and, according to interviews we undertook in September 2008, were being interpreted by commission staff (even those in the Directorate General for Health and Consumers) as requiring in-person consultation with the tobacco industry. It is not yet clear whether this interpretation has changed since the strong guidelines on the implementation of Article 5.3 were agreed in November 2008.2

Paradoxically, the “minimum standards” were also part of a drive to improve governance in the EU15 following a major scandal at the commission in 1999, in which 20 commissioners resigned over allegations of nepotism and corruption.16 Therefore, as well as emphasising the need to consult widely, they stress the importance of transparency and “good governance” in consultation processes, warn against allowing particular groups to gain privileged access to the commission and specifically state that interested parties must themselves operate in a transparent manner, making clear which interests they represent. While this has the potential to reinforce the principles underlying Article 5.3, in practice its interpretation has been appropriated by business lobbyists, who have successfully linked “open” governance (within the EU at least) to wide consultation with business representatives, including the tobacco industry.4 5 The idea that good governance in tobacco control can be achieved through routinely consulting the tobacco industry is, of course, absurd. However, BAT appears to have been able to covertly contribute to the policy developments in the EU that were explicitly intended to overcome problems of inappropriate and non-transparent policy influence. Hence, it is perhaps less surprising than it first seems that such policy developments are now being used by tobacco companies to try to secure their inclusion in policy discussions.

In summary, lobbying by BAT has played an important part in securing the production of “minimum standards” for consultation in the EU and the tobacco industry is now deploying these same standards in its attempts to weaken the EU’s interpretation of Article 5.3. A similar strategy is being employed in the UK, where BAT and Imperial Tobacco have both appropriated the policy commitments to consultation that are made within “better regulation” strategies to challenge Article 5.3.6 7 Thus, it would seem that the claims being made by tobacco companies about Article 5.3 (table 1) are an attempt to secure tobacco industry consultation on the basis of commitments and guidelines that were introduced at least partly as a result of the industry’s political influence. Although we do not yet have the evidence to link BAT’s lobbying activities to policy reforms beyond the EU, it is clear from the documents that BAT intended to undertake similar activities in other regions.8 We also know that commitments to “better regulation” and “good governance” have now been made in a wide range of countries, including in Australia,17 Ireland18 and various other EU member states (for example, Denmark, Germany, The Netherlands, Sweden19). These developments include commitments to consulting widely and, in most cases, particular emphasis is placed on consulting businesses, thus potentially enabling tobacco companies to make similar claims about Article 5.3 to those already made in the UK and EU (see table 1). Indeed, there is already evidence that such lobbying is taking place in Australia.20 21 22

Although strong guidelines were agreed for Article 5.3 in Durban in November 2008, it is unclear how parties to the FCTC that have also signed up to principles of “better regulation” or “good governance” will address tobacco companies’ contention that there is a tension between the two commitments. The fact that Article 5.3 makes it clear that necessary consultation can still take place as long as it is transparent and accountable, suggests that claims the two are in some way incompatible have been overstated. However, if policy officials believe there is a tension, there is a risk that they may feel compelled to implement the guidelines in a more relaxed or piecemeal manner than they otherwise might. In addition, given that Article 5.3 focuses on public health policy, tobacco control policies which fall beyond the remit of health ministries (for example, taxation) may be particularly susceptible to tobacco companies’ attempts to secure their inclusion in policy discussions. If this happens, the potential for the FCTC to help reduce the fatal impact of tobacco use could be severely undermined. The tobacco control community therefore needs to keep a careful eye on tobacco companies’ use of terms such as “better regulation” and “good governance” and ensure that policymakers are not duped into believing their claims about Article 5.3.