Protocol to Eliminate Illicit Trade in Tobacco Products

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Background

The world’s first global health treaty, the World Health Organization’s Framework Convention on Tobacco Control (FCTC), came into force in 2005. Two years later negotiations for the development of a supplementary international treaty began, drawing from FCTC Article 15 which focusses on eliminating the global illicit tobacco trade. These negotiations led to The Protocol to Eliminate Illicit trade in Tobacco Products, also known as the Illicit Tobacco Trade Protocol. Here we refer to it as the Protocol.

The Protocol is the first legally binding instrument adopted under the FCTC and aims to be a co-ordinated international response to the problem of illicit tobacco trade. It was adopted at the 5th Conference of the Parties (COP5) in November 2012 and entered into force on 25 September 2018, 90 days after the Protocol conditions for entry into force were met (i.e. having been ratified by 40 parties).12

By September 2020, there were 61 parties to the Protocol.3 To view a current list of signatories and policies, see the UN Treaty Collection entry.

The first Meeting of the Parties (MOP1) to the Protocol took place 8-10 October 2018.4

The Protocol

The Protocol is made up of 47 Articles which outline its provisions and the steps that Parties are expected to take in order to most-effectively tackle illicit tobacco trade.
Click here for the full text.

Article 4: Obligations

Article 4 of the Protocol outlines the general obligations of all Parties to the Protocol which are summarised below:

  • To adopt measures to control the supply chain of tobacco, tobacco products, and manufacturing equipment.
  • To adopt effective measures for facilitating or obtaining technical assistance and financial support, capacity building and international cooperation in order to achieve the objectives of the Protocol and to exchange information with competent authorities.
  • To increase the effectiveness of relevant authorities and services.
  • To make the manufacture, import and export of tobacco products and manufacturing equipment subject to a licence with other activities, such as growing tobacco or transporting and wholesaling tobacco products, being licensed where possible given national circumstances.
  • Within the means and resources at their disposal, to cooperate to raise financial resources for the effective implementation of the Protocol through bilateral and multilateral funding mechanisms.

Article 8: Tracking and Tracing

The Protocol sets a deadline of five years from the entry date of the Protocol (25 September 2023), for a cigarette tracking and tracing system to be established by each Party to the Protocol, with the deadline being 10 years for other tobacco products.

Due to the “irreconcilable conflict” between tobacco industry interests and public health interests, the Protocol states that Parties must not delegate any of their tracking and tracing obligations to the tobacco industry.5 Moreover, Party authorities involved in track and tracing regimes should be in contact with the tobacco industry and its representatives “only to the extent strictly necessary” in order to implement the Article 8’s requirements.5

Article 12: Free Zones and International Transit

Free zones can be defined as designated areas that “facilitate trade by offering businesses advantageous tariffs and lighter regulation on financing, ownership, labour and immigration, and taxes.”6. This can fuel illicit activity, including illicit distribution and manufacturing of tobacco products. Free trade zones contribute to illicit tobacco trade in multiple countries including the United Arab Emirates, the Philippines, Malaysia, Panama, Greece and Egypt.7

Within 3 years of the date of the Protocol’s entry into force (25 September 2021), Parties are required to implement effective controls on all manufacturing of, and transactions in, tobacco and tobacco products, in free zones.

Tobacco Industry Interference

Concerns were initially raised about the Protocol lacking adequate measures to protect against tobacco industry interference. One of them was that inadequate resources for implementation of the Protocol could lead to “unacceptable cooperation with the tobacco industry” by allowing tobacco companies to fund Government attempts to implement the Protocol.8

Additionally, the approaches of international agencies who would be implementing the Protocol in practice may not be as cautious toward the tobacco industry as those of the WHO which could increase the likelihood of industry interference.9

Developing nations would be particularly at risk from industry interference due to the threat of industry investing in state border-control resources in order to influence Governments.10

A peer-reviewed 2015 study by the University of Bath’s Tobacco Control Research Group (TCRG) outlined how the tobacco industry, despite its long history of involvement in the illicit tobacco trade, had in the previous 15 years indeed tried to control the debate over illicit tobacco trade to gain policy influence worldwide.11

Internal tobacco industry documents indicate Philip Morris International (PMI) and British American Tobacco (BAT) had been particularly active behind the scenes in shaping the WHO response to illicit tobacco trade. from 2000-2001 include examples of PMI attempting to influence the FCTC in relation to smuggling specifically. In 2000, for example, PMI argued to the US Departments of Commerce and Health and Human Services that government involvement with the tobacco industry would be a more-effective way of combating illicit trade than the measures put forward in the FCTC.12 Consultants MBD also suggested to PMI that future protocols following on from the FCTC would have a bigger impact on the tobacco industry than the FCTC itself and so should be considered PMI’s main focus.13

A 2021 peer-reviewed TCRG study documented how BAT followed that advice by working to influence the content of the Protocol, with a focus to “minimise its financial and legal costs for BAT while maximising potential costs to small competitors”.14 The company also “pushed for a non-prescriptive text which enabled further country-level TTC influence” in the implementation phase.14 Internal documents indicate BAT was largely satisfied with the final text.14

A peer-reviewed 2018 TCRG study15 further outlined tobacco industry attempts to interfere with the Protocol’s implementation by, among other things, using front groups to promote their own technology system, formerly known as Codentify (now the Inexto Suite), an ineffective, opaque, and inefficient tool.1516

The researchers argue that tobacco companies have a vested interest in supply chain control measures, given that diverse and growing evidence shows that tobacco industry product is the single largest problem in illicit tobacco, indicating that tobacco companies are failing to control their supply chain in the knowledge their products will end up on the illicit market.

  • For more on this, and on the tobacco industry’s historical complicity in illicit trade, see: Tobacco Smuggling.

TobaccoTactics Resources

TCRG Research

Relevant Link

References

  1. World Health Organization, The Protocol to Eliminate Illicit Trade in Tobacco Products is live!, 28 June 2018, accessed October 2018
  2. World Health Organization, Protocol officially entering into force, 25 September 2018, accessed October 2018
  3. United Nations Treaty Collection, 4. a Protocol to Eliminate Illicit Trade in Tobacco Products, added 12 November 2012, accessed August 2020
  4. World Health Organization, Meeting of the Parties to the Protocol to Eliminate Illicit Trade in Tobacco Products (FCTC/MOP/1/3), 23 August 2018, accessed October 2018
  5. abWorld Health Organization, Protocol to Eliminate Illicit Trade in Tobacco Products, 2013, accessed October 2018
  6. OECD, OECD Recommendation on Countering Illicit Trade: Enhancing Transparency in Free Trade Zones, 21 October 2019
  7. World Health Organization, The Protocol to Eliminate Illicit Trade in Tobacco Products: Questions and Answers, undated, accessed October 2018
  8. J. Liberman, E. Blecher, A.R. Carbajales, et al, Opportunities and risks of the proposed FCTC protocol on illicit trade, Tobacco Control, 2011; 20:436-438
  9. J. Liberman, The New WHO FCTC Protocol to Eliminate Illicit Trade in Tobacco Products- Challenges Ahead, 14 December 2012, American Society of International Law website, accessed October 2018
  10. D. Sy, Illicit trade protocol: the weakest link: invited commentary, Tobacco Control, 2012; 21:235
  11. A.B. Gilmore, G. Fooks, J. Drope, et al, Exposing and addressing tobacco industry conduct in low-income and middle-income countries, The Lancet, 2015; 385, 9972:1029-1043
  12. Philip Morris International, Response to Request for Public Comment on the Framework Convention on Tobacco Control Requested by the United States Departments of Commerce and Health and Human Services 15 March 2000, 2000, Truth Tobacco Industry Documents, Bates no:2078354815-2078354838, accessed November 2018
  13. M. Gonzalez, L. Green, S. Glantz, Through tobacco industry eyes: civil society and the FCTC process from Philip Morris and British American Tobacco’s perspectives, Tobacco Control, 2012; 21:e1
  14. abcB. Gomis, A.W.A. Gallagher, A. Rowell, A.B. Gilmore, Turning a threat into an opportunity: British American Tobacco’s weakening of the Protocol to Eliminate Illicit Trade in Tobacco Products, Tobacco Control, Published Online First: 16 September 2021, doi:10.1136/tobaccocontrol-2020-055837
  15. abA.B. Gilmore, A.W.A. Gallagher, A. Rowell, Tobacco industry’s elaborate attempts to control a global track and trace system and fundamentally undermine the Illicit Trade Protocol, Tobacco Control, Published Online First: 13 June 2018
  16. B. Gomis, A.W.A. Gallagher, A. Rowell, A.B. Gilmore, Turning a threat into an opportunity: British American Tobacco’s weakening of the Protocol to Eliminate Illicit Trade in Tobacco Products, Tobacco Control, Appendix III, Published Online First: 16 September 2021, doi:10.1136/tobaccocontrol-2020-055837
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