FCTC Regulations on the Need to Protect Public Health Policies from Tobacco Industry Interference

 

International Treaties

The World Health Organization Framework Convention on Tobacco Control (WHO FCTC) is an international treaty that aims to reduce the demand and supply of tobacco, despite the continuing efforts of the global tobacco industry to maintain the huge profits it makes from its addictive products.¹

Two years after the WHO FCTC was agreed, negotiations for the development of a supplementary international treaty began, drawing from Article 15 of the WHO FCTC which focusses on eliminating the global illicit tobacco trade. These negotiations led to The Protocol to Eliminate Illicit trade in Tobacco Products (the Protocol).

Both the WHO FCTC² and the Protocol³ highlight the need to protect public health policies from the tobacco industry in multiple articles:

• Article 5.3 of the WHO FCTC: “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”
• Article 12.c of the WHO FCTC: “[…] each Party shall adopt and implement […] measures to promote […] public access, in accordance with national law, to a wide range of information on the tobacco industry as relevant to the objective of this Convention”
• Article 20.4.c of the WHO FCTC: “[…] Each Party shall endeavour to […] cooperate with competent international organizations to progressively establish and maintain a global system to regularly collect and disseminate information on tobacco production, manufacture and the activities of the tobacco industry which have an impact on the Convention or national tobacco control activities.”
• Article 4.2 of the Protocol: “In implementing their obligations under this Protocol, Parties shall ensure the maximum possible transparency with respect to any interactions they may have with the tobacco industry”
• Article 8.12 of the Protocol: “Obligations assigned to a Party shall not be performed by or delegated to the tobacco industry”
• Article 8.13 of the Protocol: “Each Party shall ensure that its competent authorities, in participating in the tracking and tracing regime, interact with the tobacco industry and those representing the interests of the tobacco industry only to the extent strictly necessary in the implementation of this Article.”
• Article 8.14 of the Protocol: “Each Party may require the tobacco industry to bear any costs associated with that Party’s obligations under this Article.”

COP and MOP Decisions

Parties to the WHO FCTC usually meet every two years at a Conference of the Parties (COP). Immediately before or immediately after COP, Parties to the Protocol meet at the Meeting of the Parties (MOP).

COP and MOP are the governing bodies of the two treaties, and they decide on ways for effective implementation of the treaties.

• Article 23.5 of the WHO FCTC states that “The Conference of the Parties shall keep under regular review the implementation of the Convention and take the decisions necessary to promote its effective implementation and may adopt protocols, annexes and amendments to the Convention”.
• Article 3.5 of the Protocol states that “The Meeting of the Parties shall keep under regular review the implementation of the Protocol and take the decisions necessary to promote its effective implementation”

Both COP of the WHO FCTC,⁴ and MOP of the Protocol,⁵ continued to emphasise the need to protect health measures from the tobacco industry and holding it accountable.

The decisions detailed below.

COP 1, 2006

FCTC/COP1(15)

Parties decided to take note of the templates for the elaboration of guidelines […]:

• On Article 11 (Packaging and labelling of tobacco products) with the rationale that “The tobacco industry thrives by disseminating misleading information regarding social acceptability and health effects of their product […]”.
• On Article 12 (Education, communications, training and public awareness) with clear definition of elements of guidelines including “[…] Specify strategies for providing public access to information on tobacco industry activities in the country”.
• On Article 13 (Tobacco advertising, promotion and sponsorship) with guidelines to have the potential “to be resource intensive (in terms of money, expertise, and responding to industry-engendered challenges)”

COP 2, 2007

FCTC/COP2(7)

COP adopted the guidelines for implementation of Article 8:

• The principles of the guidelines include that “The implementation of smoke free legislation, its enforcement and its impact should all be monitored and evaluated. This should include monitoring and responding to tobacco industry activities […]”.
• The guidelines also state that “Monitoring and evaluation of measures to reduce exposure to tobacco smoke are important for several reasons, for example: […] to identify and publicize the efforts made by the tobacco industry to undermine the implementation measures”

COP 3, 2008

FCTC/COP3(7)

COP adopted the guidelines for implementation of Article 5.3, which included detailed principles, recommendations, and measures to protect public health policies from tobacco industry interference, including the role of civil society, nongovernmental and non-state actors in monitoring industry activities. Important activities included:

• “Raise awareness about the addictive and harmful nature of tobacco products and about tobacco industry interference with Parties’ tobacco control policies.
• Establish measures to limit interactions with the tobacco industry and ensure the transparency of those interactions that occur.
• Reject partnerships and non-binding or non-enforceable agreements with the tobacco industry.
• Avoid conflicts of interest for government officials and employees.
• Require that information provided by the tobacco industry be transparent and accurate.
• Denormalize and, to the extent possible, regulate activities described as “socially responsible” by the tobacco industry, including but not limited to activities described as “corporate social responsibility”.
• Do not give preferential treatment to the tobacco industry.
• Treat State-owned tobacco industry in the same way as any other tobacco industry.”

FCTC/COP3(10)

COP adopted the guidelines for implementation of Article 11:

• Including that “Parties should consider adopting measures […] (plain packaging). This may […] address industry package design techniques that may suggest that some products are less harmful than others.”.
• Also that “Parties should endeavour to share legal and other expertise in countering tobacco industry arguments against packaging and labelling measures.”

FCTC/COP3(12)

COP adopted the guidelines for implementation of Article 13:

• Including that “Tobacco industry public education campaigns, such as “youth smoking prevention campaigns” should be prohibited on the basis that they involve “contributions” when implemented by other parties or represent corporate promotion if conducted by the industry itself”, recommending that “The Parties should ban contributions from tobacco companies to any other entity for “socially responsible causes”, as this is a form of sponsorship. Publicity given to “socially responsible” business practices of the tobacco industry should be banned, as it constitutes advertising and promotion.”
• Also that “Parties should require disclosure by the tobacco industry to relevant governmental authorities of any advertising, promotion and sponsorship in which it engages”.

COP 4, 2010

FCTC/COP4(5)  

• COP declared “The need to exchange information on the activities of the tobacco industry, at a national or international level, which interfere with the implementation of public health policies with respect to tobacco control”

FCTC/COP4(7)

COP adopted the guidelines for the implementation of Article 12 (Education, communication, training and public awareness) :

• Including that parties should ensure that “the strategies and practices of the tobacco industry to undermine tobacco control efforts are communicated as widely as possible […]”
• Also, that parties should “ Introduce measures to ensure that entities involved in education, communication and training, and related research, including but not limited to academia, professional associations and governmental agencies, fully respect the principles laid down in Article 5.3 of the Convention and its guidelines, and thus do not accept any direct or indirect tobacco industry funding.”
• The guidelines highlight that “the participation of civil society is of vital importance to national and international tobacco-control efforts. Vigilance must be exercised to ensure they are not affiliated with the tobacco industry”. Parties should therefore “work with civil society to create a climate of attitude that […] increases awareness of tobacco industry interference […]”
• The guidelines also state that regarding public education and communication activities that “outreach can also be increased by encouraging and supporting nongovernmental organizations and other members of civil society active in the field of tobacco control, and not affiliated with the tobacco industry […]”.
• Also, regarding training, that “programmes should include information about the strategies and practices of the tobacco industry to undermine tobacco-control efforts.”
• The guidelines include a section on ensuring wide access to information on the tobacco industry, with action points including to “Provide public access to all information relevant to the strategies and activities of the tobacco industry, through such means as publicly accessible databases, monitoring instruments and research-based literature, and by publicizing trustworthy sources of information on the tobacco industry”
• Also, that parties should consider ways to “build sufficient capacity to enable effective monitoring and surveillance of the tobacco industry and its products, by training researchers and other relevant professionals, and by providing easy public access to relevant data on the tobacco industry and its products”

FCTC/COP4(8)

COP adopted the guidelines for implementation of Article 14:

• Including that “[…] Parties could consider placing the cost of cessation support on the tobacco industry and retailers […]”

FCTC/COP4(10)

COP adopted the partial guidelines for implementation of Articles 9 and 10:

• Including that “Laboratories used by Parties for compliance purposes should be either governmental laboratories or independent laboratories that are not owned or controlled, directly or indirectly, by the tobacco industry” and “Parties should not accept claims from the tobacco industry concerning the confidentiality of information that would prevent governmental authorities from receiving information about the contents and emissions of tobacco products” and “Parties should require that manufacturers and importers of tobacco products disclose information on design features to governmental authorities at specified intervals, and as appropriate, including the results of tests conducted by the tobacco industry”

COP 5, 2012

FCTC/COP5(1)

• COP adopted the Protocol to Eliminate Illicit Trade in Tobacco Products, which was prepared mindful of Article 5.3 of the WHO FCTC

FCTC/COP5(5)

• Seoul Declaration: “The Parties to the WHO FCTC declare […] Their commitment to cooperate with each other and with the Convention Secretariat and other competent international bodies, consistent with Article 22 of the Convention, to strengthen their capacity to fulfil the obligations arising from the Convention and in efforts to counteract tobacco industry interference”

COP 6, 2014

FCTC/COP6(9)  

COP decided that it:

• “Welcomes the report contained in document FCTC/COP/6/10 Rev.1 and invites Parties to take careful note of it.
• “Invites Parties, when addressing the challenge posed by ENDS/ENNDS, to consider taking measures such as those referred to in document FCTC/COP/6/10 Rev.1 in order to achieve at least […] protect tobacco-control activities from all commercial and other vested interests related to ENDS/ENNDS, including interests of the tobacco industry”
• The measures listed in document FCTC/COP/6/10 Rev.1 include that “Article 5.3 of the WHO FCTC should be respected when developing and implementing ENDS legislation and regulations.”

FCTC/COP6(11)

• COP adopted policy options and recommendations on economically sustainable alternatives to tobacco growing (in relation to Articles 17 and 18 of the WHO FCTC)

FCTC/COP6(14)

• COP decided to urge parties to “strengthen their implementation of Article 5.3 and intensify collaborative action to address tobacco industry efforts internationally” and to “raise awareness and adopt measures to implement Article 5.3 and its implementing Guidelines among all parts of government including diplomatic missions.”
• COP requested that the Convention Secretariat “examine the level of tobacco industry engagement in key international organizations […]”;  “identify and recommend options and sustainable mechanisms international cooperation on, and exchange of information related to, tobacco industry interference”; and “develop and promote monitoring tools that would encourage voluntary and timely sharing of further information in order to enhance the monitoring of tobacco industry interference […]”

FCTC/COP6(19)

• COP encouraged parties to “cooperate in exploring possible legal options to minimize the risk of the tobacco industry making undue use of international trade and investment instruments to target tobacco control measures”

FCTC/COP6(26)

• COP called on the Parties to “take special account, during implementation of national tobacco control measures, of the population groups, including women, children and adolescents, minority groups and low socioeconomic groups, who are especially vulnerable to the efforts of the tobacco industry to recruit and maintain users”

COP 7, 2016

FCTC/COP7(4)

• COP invited parties to “to comply with Article 5.3 and its Guidelines in relation to waterpipe tobacco policies and control”

FCTC/COP7(6)

• COP decided that “except interactions to the extent strictly necessary, Parties to the Convention are urged not to consider any proposal or assistance related to tracking and tracing from the tobacco industry, or submitted on their behalf”

FCTC/COP7(8)

• COP urged parties to “intensify multisectoral actions and cooperation to address efforts by the tobacco industry to undermine or subvert tobacco control efforts, and the need to be informed of the tobacco industry actions that have a negative impact on tobacco control efforts”
• COP requested that the Convention Secretariat “include media strategies to raise awareness about tobacco industry interference in the global communication strategy”

FCTC/COP7(9)

COP welcomed the report in document FCTC/COP/7/11, and invited parties to consider applying regulatory measures such as those referred to in the document. The measures listed in document FCTC/COP/7/11 include measures to “protect tobacco control activities from all commercial and other vested interests related to ENDS/ENNDS, including interests of the tobacco industry” The document included that parties may consider:

• “Raising awareness about potential industry interference with Parties’ tobacco control policies;
• Establishing measures to limit interactions with the industry and to ensure transparency in those interactions that do take place;
• Rejecting partnerships with the industry;
• Taking measures to prevent conflicts of interest for government officials and employees;
• Requiring that information provided by the industry be transparent and accurate;
• Banning activities described as “socially responsible” by the industry, including but not limited to activities described as “corporate social responsibility”;
• Refusing to give preferential treatment to industry;
• Treating State-owned industry in the same way as any other industry”

FCTC/COP7(10)

• COP decided to urge parties to “when implementing Articles 17 and 18, to adopt a whole-of-government and stakeholder participatory approaches keeping in mind Article 5.3 in promoting alternatives to tobacco growing, and avoid tobacco industry obstruction in programmes meant for the welfare and diversification of tobacco growers and workers and the protection of the environment, as appropriate in the national context”

FCTC/COP7(11)

• COP requested that the Convention Secretariat “develop a database of experts and institutions that can provide Parties, upon request, with technical assistance related to tobacco industry liability, create a digital platform for international cooperation, and make available and regularly update related resources”

FCTC/COP7(14)

• COP noted that the working group to elaborate guidelines for implementation of Article 9 and Article 10, as it has done previously, “wishes to invite all Parties, the tobacco-related Knowledge Hubs and the World Health Organization (WHO) to continue building capacity to require the tobacco industry to test and disclose the contents and emissions of tobacco products to regulatory authorities”

FCTC/COP7(21)

• COP requested that the Convention Secretariat “document the tobacco control measures most frequently targeted by the tobacco industry, and inform Parties, as appropriate, on how to protect their regulatory capacity in this regard”

FCTC/COP7(26)

• COP invited the Convention Secretariat to “collaborate with existing United Nations mechanisms and processes working on issues of business and human rights in order to protect public health interests from the commercial and other vested interests of the tobacco industry”

FCTC/COP7(29)

• COP reiterated the need to “counter any efforts by industry and other non-State actors that work to further the interests of the tobacco industry to subvert and undermine government policies on tobacco control”
• COP called on parties to “increase their efforts to prevent interference by the tobacco industry at all levels, in accordance with Article 5.3 of the WHO FCTC through legislative and regulatory measures and to inform non-health government departments of their obligations under Article 5.3” and to “utilize available resources and mechanisms of assistance, such as from the knowledge hubs and tobacco industry observatories […]”

COP 8, 2018

FCTC/COP8(4)

• COP decided on a Code of Conduct and Declaration of Interest for the Members of the Bureau and the Regional Coordinators of the Conference of the Parties to the WHO Framework Convention on Tobacco Control and on proposed measures preventing and addressing possible conflicts of interest at the Convention Secretariat

FCTC/COP8(12)

Maximizing transparency of delegations from Parties and observers to the Conference of the Parties, its subsidiary bodies and other WHO FCTC meetings.

• The decision requires Parties, “when designating their representatives to the meetings of the COP, its subsidiary bodies or any other bodies established pursuant to decisions of the COP, to indicate, by any means or format of their preference (e.g. in the accreditation document or in a separate letter), that they have observed Article 5.3 of the WHO FCTC and have been mindful of the recommendations 4.9 and 8.3 of the Guidelines. In this regard, the Parties shall indicate the following: “When designating its representatives to the [name of the meeting], [name of the Party] has observed Article 5.3 of the WHO FCTC and has been mindful of the recommendations 4.9 and 8.3 of the Guidelines for the implementation of Article 5.3 of the WHO FCTC””

FCTC/COP8(18)

Protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry. The decision encourages parties:

• “to strengthen, where necessary, their awareness-raising efforts about the tobacco industry or related third-party funding among research institutions, target government agencies, and pertinent international intergovernmental and nongovernmental organizations, and to consider adopting policies that would prevent the use of such institutions’ research outputs in policy development”
• To require that “the tobacco industry to provide information on its activities such as research, marketing, lobbying including policy submissions, funding of third parties/nongovernmental organizations, and by making such information publicly accessible”
• To “[…] require that all government sectors relevant to the implementation of the Convention, not only the health sector, comply with the requirements of Article 5.3 of the WHO FCTC […]”
• “to promote, in international and regional organizations in which they are represented, as well as well as among non-State actors, particularly those working on SDGs and NCDs, the adoption of policies to prevent tobacco industry interference, reflecting the spirit of Article 5.3 of the WHO FCTC”
• “to promote national and international cooperation to enhance implementation of Article 5.3 of the WHO FCTC in relation to Articles 17, 18 and 19 of the WHO FCTC to reduce tobacco industry interference in tobacco control policies”

FCTC/COP8(19)

• COP decided to invite parties “to support and strengthen the implementation of Articles 17 and 18 of WHO FCTC as a mean to safeguard tobacco growers livelihoods and to address tobacco industry national and international efforts to block tobacco control policies”

FCTC/COP8(22)

• COP reminded parties about “their commitments under the WHO FCTC when addressing the challenges posed by novel and emerging tobacco products such as heated tobacco products […]” and to consider prioritizing measures including “to protect tobacco-control policies and activities from all commercial and other vested interests related to novel and emerging tobacco products, including interests of the tobacco industry, in accordance with Article 5.3 of the WHO FCTC”

COP 9, 2021

FCTC/COP9(10)

• COP called on parties to “take appropriate measures to prevent tobacco industry interference and involvement in COVID-19-related public health policies and actions, in accordance with Article 5.3 of the WHO FCTC and its Guidelines for implementation”

FCTC/COP9(13)

• COP decided to launch the WHO FCTC Investment Fund and the decision included requesting the Convention Secretariat “to work towards securing investors to the Fund, in accordance with Article 5.3 […]”

MOP 1, 2018

FCTC/MOP1(5)

• MOP invited competent international and regional IGOs, including financial and development institutions, “to support the implementation of the Protocol in accordance with their mandates and expertise and, in line with Article 5.3 of the WHO Framework Convention on Tobacco Control, to prevent undue interference from the tobacco industry and industries with other vested interests”

FCTC/MOP1(13)

• MOP decided on a Code of Conduct and Declaration of Interest for the Members of the Bureau and the Regional Coordinators of the Meeting of the Parties to the Protocol to Eliminate Illicit Trade in Tobacco Products and on proposed measures preventing and addressing possible conflicts of interest at the Convention Secretariat

FCTC/MOP1(15)

Maximizing transparency of delegations from Parties and observers to the Meeting of the Parties, its subsidiary bodies and other Protocol meetings

• The decision included “to require Parties, when designating their representatives to the meetings of the MOP, its subsidiary bodies or any other bodies established pursuant to decisions of the MOP, to indicate, by any means or format of their preference (e.g. in the accreditation document or in a separate letter), that they have observed Article 5.3 of the WHO FCTC and have been mindful of the recommendations 4.9 and 8.3 of the Guidelines. In this regard, the Parties shall indicate the following: “When designating its representatives to the [name of the meeting], [name of the Party] has observed Article 5.3 of the WHO FCTC and has been mindful of the recommendations 4.9 and 8.3 of the Guidelines for the implementation of Article 5.3 of the WHO FCTC””

MOP 2, 2021

FCTC/MOP2(8)

• MOP decided to launch an Investment Fund to support implementation of the Protocol, and the decision included requesting the Convention Secretariat “to work towards securing investors for the Fund, in accordance with Article 5.3 […]”

FCTC/MOP2(10)

• MOP adopted Amendment of Declaration of Interest Form for Members of the Bureau and Regional Coordinators of the Meeting of the Parties to the Protocol to Eliminate Illicit Trade in Tobacco Products