American Journal of Law & Medicine

Confronting the Vector of Tobacco-Related Disease

I. INTRODUCTION

It has been estimated that the use of tobacco kills nearly 6 million people each year, with most deaths occurring in low- and middle-income countries. (1) This disparity is expected to increase over the next few decades. (2) On the basis of current trends, tobacco use will kill more than 8 million people worldwide per annum by 2030, with eighty percent of those premature deaths occurring in low- and middle-income countries. (3) The significant burden of morbidity and mortality associated with tobacco use is well documented and proven and will not be repeated here. (4)

The evidence base for addressing the tobacco epidemic domestically, regionally, and globally has developed in a systematic fashion over the past five decades. Effective measures for tobacco control are now well known and have been canvassed widely in the published literature. (5)

The World Health Organization (WHO) in particular has been at the forefront of articulating what makes for an effective tobacco control program, emphasizing evidence-based measures in its advocacy for countries to take strong action against the tobacco epidemic and in supporting countries to do so. These measures include:

* monitoring tobacco use, policies and the tobacco industry;

* protecting people from tobacco smoke (bans on smoking in public places and work places);

* offering help to quit tobacco use;

* warning about the dangers of tobacco (for example, strong, graphic health warnings on tobacco packaging);

* enforcing comprehensive bans on tobacco advertising, promotion, and sponsorship; and

* raising taxes on tobacco so that the cost of tobacco products is high. (6)

It is generally agreed that a comprehensive, national-level tobacco control program comprising the above elements will deliver significant return in terms of reduced tobacco use and, ultimately, reduced disease burden for the country concerned. This assumes that such a program is well-planned and funded, with a national strategic plan sitting behind it, and multi-sectoral engagement. (7)

From the 1960s to the present there has been a dramatic increase in thorough regulatory- and tax-based measures to promote tobacco control that have been implemented in many countries around the world. (8) Over this period there was also an expansion of the number of countries implementing significant health promotion, nicotine-dependency treatment, and research-based activities to encourage people to avoid or quit tobacco use. (9) The actions of individual countries were also useful to others; "[c]ountries drew on each other's experiences, using the introduction of measures in one jurisdiction to justify the introduction of similar or extended measures in another." (10) There was expanded collaboration in research and information sharing through international conferences dedicated specifically to tobacco control. (11)

Despite the strong evidence base, however, many countries still struggle with implementing some of the most basic interventions known to significantly reduce tobacco use, such as: high tobacco taxes; tobacco advertising, promotion, and sponsorship bans; bans on smoking in public places and work places; and large, graphic health warnings on tobacco packages. (12) The influence of the tobacco industry in preventing, delaying, or rolling back effective tobacco control measures has significantly delayed the progress of countries in implementing such measures and has been well documented in a variety of reports and articles. (13)

New initiatives by countries attempting to expand their comprehensive tobacco control programs face particularly tough challenges. The tobacco industry recognizes that the successful implementation of new tobacco control measures in one or two jurisdictions inevitably sparks action in other countries. (14) Recent examples of strong tobacco industry campaigns include campaigns in opposition to the implementation of a ban on the retail display of tobacco packages in Norway, Iceland, the United Kingdom, and New Zealand (among others) and to plain packaging of tobacco products, as implemented in Australia and proposed in the United Kingdom and New Zealand. (15)

Globally, there has been a series of resolutions from the World Health Assembly (WHA), the highest decision-making body of the WHO supporting member states to take strong tobacco control measures. Early resolutions simply called for member states to acknowledge the harm associated with tobacco use. (16) From the late 1970s to the early 1990s, WHA resolutions called for member states to implement comprehensive tobacco control programs based on best practices, since a significant body of literature and country experience had appeared over the years regarding what worked in tobacco control. (17) By the late 1990s, the WHA had adopted a global approach to tobacco control, recognizing that significant global influences required action at a global level if domestic tobacco control was to be successful. (18) Commonly cited areas of international concern included cross-border tobacco advertising and promotion, the illicit trade in tobacco products, and research and information-sharing about how best to reduce tobacco-related harm, among other matters. (19) Significantly, there has also been recognition that to be effective, tobacco control efforts must confront the tobacco industry and its global efforts to subvert tobacco control efforts. (20)

In 2001, a WHA resolution noted with great concern the findings of a Committee of Experts on Tobacco Industry Documents: that the tobacco industry had operated for years with "the express intention of subverting the role of governments and of WHO in implementing public health policies to combat the tobacco epidemic." (21) The resolution urged the WHO and Member States to be alert to any efforts by the tobacco industry to continue its subversive practices and to assure the integrity of health policy development in any WHO meeting and in national governments. (22)

The 2001 resolution was arguably one of the most significant milestones in raising awareness among governments of the need to recognize tobacco industry interference at an international level. The most significant manifestation of a global recognition that action needs to be taken to confront the actions of the tobacco industry can be seen in Article 5.3 of the WHO Framework Convention on Tobacco Control (WHO FCTC).

II. THE WHO FCTC

Between May 1999 and June 2003, an intergovernmental working group and an intergovernmental negotiating body drafted and negotiated provisions for inclusion in a treaty on tobacco control. (23) In May 2003, the WHA unanimously adopted the WHO FCTC, which opened for signature one month later. (24) As of December 14, 2012, 176 countries were Parties to the WHO FCTC. (25)

The WHO FCTC is explicit on the need to confront tobacco industry interference. The preamble to the WHO FCTC notes that Parties to the WHO FCTC "need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts." (26)

Article 5.3 of the WHO FCTC requires, "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." (27)

Finally, there is a strong focus in the WHO FCTC on the importance of civil society participation in helping to achieve the objectives of the WHO FCTC. (28) There are, however, references to this involvement excluding the tobacco industry. (29) Guidelines for Parties' implementation of Article 5.3 of the WHO FCTC, on the protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry, were adopted at the third session of the FCTC Conference of the Parties in 2008. (30)

The Guidelines include a set of key guiding principles:

* Principle 1: There is a fundamental and irreconcilable conflict between the tobacco industry's interests and public health policy interests. (31)

* Principle 2: Parties, when dealing with the tobacco industry or those working to further its interests, should be accountable and transparent. (32)

* Principle 3: Parties should require the tobacco industry and those working to further its interests to operate and act in a manner that is accountable and transparent. (33)

* Principle 4: Because their products are lethal, the tobacco industry should not be granted incentives to establish or run their businesses. (34)

The WHO FCTC Article 5.3 Guidelines also include a series of eight recommendations and a number of sub-recommendations. (35) Attention is now being paid internationally to how Parties may best give effect to Article 5.3 of the WHO FCTC. (36)

III. WHAT ARE WE CONFRONTING?

The tobacco industry uses a broad range of tactics to influence tobacco control policy, legislation, and program development and implementation. There are a large number of published papers, reports, and commentaries on the topic of tobacco industry tactics in this regard. A recent report (37) by The International Union Against Tuberculosis and Lung Disease (The Union) summarizes a number of recent reports and papers to present the key strategies and examples of tactics for each strategy. These include:

* Reinventing the image of the tobacco industry: tactics include a wide range of public relations efforts; the application of philanthropic and social responsibility programmes to build a positive reputation; emphasising the industry's contribution to the economy and employment in particular; casting anti-tobacco efforts as anti-business and the beginning of attacks on industry more widely[;]

* Defending product affordability: fiercely opposing any efforts to increase prices[;]

* Political influence: contributing funds to political parties and candidates; financing government initiatives; engaging with decision-makers as a means of feeding them misinformation or seeking regulatory interventions that will not be effective[;]

* Lobbying and legislative strategies: seeking a seat at the table to negotiate on legislation and policy development; active subversion of effective legislative interventions and active promotion of inferior legislative drafts; delaying passage of laws; lobbying for diversion of funds away from tobacco control activities; promoting a narrower focus for tobacco control (e.g. youth smoking) [;]

* Intimidation and harassment: economic threats and intimidation; active litigation and threats of legal action; claims of policy and legal instruments' inconsistency with international trade and investment agreements; infiltration of anti-tobacco groups; challenging lobbying efforts[;]

* Tobacco advertising: a wide range of active promotions of specific tobacco products and of tobacco use more widely[;]

* Undermining the science: funding industry-friendly scientists and research; sowing confusion about research findings; creating doubt about legitimate research; funding pro-industry scientific forums[;]

* Media manipulation: misrepresenting the facts; minimising the risks of tobacco; using advertising dollars to control media content; putting 'spin' on issues; promoting coverage of poor science[; and]

* Creating the illusion of support: creating or supporting the establishment of front groups, alliances and think-tanks; flying in 'experts' to fight legislation; challenging legislation; presentation of false or misleading testimony. …

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