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Global anti-tobacco conference to see 50% decline in deliveries

Nov 11th, 2016
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Zimbabwe’s money spinning tobacco sector, one of the main sources of liquidity in the country, could suffer a huge blow with seasonal deliveries seen declining by 50% if the ongoing global anti-tobacco conference in India endorses the mandatory reduction of nicotine levels in cigarettes, it has emerged.

https://www.theindependent.co.zw/2016/11/11/global-anti-tobacco-conference-see-50-decline-deliveries/

By Fidelity Mhlanga

The conference, from November 8-12, seeks to reduce nicotine down to a maximum of 0,4 miligrammes, which is 10% of current levels.

Delegates are intent on reviewing the implementation of the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC) and the Protocol to Eliminate Illicit Trade in Tobacco Products. The meeting comes amid a global lobby against smoking in public places due to rising cases of cancer.

Statistics from Treasury show tobacco exports were only second to gold, valued at US$481 million and constituting 23% of all exports from January to October 2015. Gold exports were valued at US$503 million, indicating the importance of the golden leaf to Zimbabwe’s economic survival.

As at September 2 this year, tobacco weighing 201 million kilogrammes and valued at US$592,5 million was sold, at the average price of US$2,94 per kg.

Office of the President and Cabinet deputy chief secretary Christian Katsande, executive secretary of the National Economic Consultative Forum Norman Chakanetsa and officials from the ministries of Health and Industry and Commerce are currently attending the global conference in India.

Tobacco Industry Marketing Board Chief executive officer Andrew Matibiri said the endorsement of the reduction of nicotine in tobacco would affect tobacco deliveries that have been on an upward trend in recent years.

“Anything that amounts to the reduction of nicotine in tobacco means we will not be able to produce tobacco in the same level,” he said.

Matibiri said tobacco producers could, however, lobby for the use of genetic modification to neutralise nicotine levels in tobacco despite global resistance to the method.

Conference of the Parties (COP7) to WHO FCTC are lobbying for total exclusion, or market access exclusion or differential treatment (punitive taxes, duties, etc) of tobacco and its products on the world trade platform.

Experts say should the regulation sail through, demand for tobacco will decline drastically, by up to 50%, as low-value tobacco will be required by cigarette manufacturers.

Zimbabwe Tobacco Association chief executive Rodney Ambrose said if the regulation is endorsed this will result in tobacco being untradeable on world markets and would make tobacco growing valueless and affect Zimbabwe which exports over 95% of its tobacco.

“We will see tobacco production in Zimbabwe drop by at least 50% along with US dollar earnings, growers’ livelihoods and dependents along with all downstream industries that support two million people will all be at risk,” he said.

“This will negatively impact on yields and growers’ returns, resulting in poor viability of tobacco farmers, forcing millions of Zimbabwe farmers out of tobacco production.”

Only government officials are allowed to attend the global convention. The WHO FCTC refuses to entertain any dialogue with the tobacco industry.

“I am sure you appreciate from the above the devastating impact such regulations could have on our industry if the WHO FCTC is not stopped from making unreasonable, non-consultative proposals. The WHO FCTC should concentrate on health issues, not trade, as there are arms of the UN that regulate trade, ie WTO, who have shown no objection to the trading of tobacco,” Ambrose said.

India, Bangladesh seek alternative crop for tobacco

Nov 11th, 2016
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http://www.smetimes.in/smetimes/news/indian-economy-news/2016/Nov/11/india-bangladesh-alternative-crop-tobacco.html

India and Bangladesh on Thursday called for working towards finding an alternative crop for tobacco and avoiding interference by the tobacco industry in the welfare programmes.

Both countries have put a proposal before all members of the ongoing WHO Framework Convention on Tobacco Control (WHO FCTC) to engage relevant stakeholders and ministries of their governments in working towards the alternative crop.

Taking into account the Article 17 and Article 18 of the convention, the two South Asian countries have also urged the international community to support mobilisation of resources to promote economically viable alternatives for tobacco growers and workers.

Article 17 of the convention includes the provision of support for economically viable alternative activities and Article 18 protection of the environment and the health of persons.

“We urge all the parties to call for policy coherence in the mandates of the governing bodies of relevant intergovernmental organisations,” said the draft copy — a copy of which is available with IANS.

According to Tobacco Institute of India (TII), tobacco is an extremely important commercial crop for the country as it contributes more than Rs 30,000 crore in tax revenue annually besides earning about Rs 6,000 crore in foreign exchange.

Tobacco farming is a source of livelihood to 4.6 crore Indians. Looking at the disease burden caused by tobacco, the government wants to curb tobacco farming.

However, the tobacco growers in the last couple of months have staged a series of protests, demanding that the government provide alternate crops farming for their survival which could equate the income generated by the tobacco farming.

The world’s biggest anti-tobacco convention WHO FCTC commenced at India Exposition Mart here on November 7. It was inaugurated by Health Minister J.P. Nadda and would conclude on November 12.

India and Bangladesh, through their draft, have also proposed the member nations of the WHO FCTC to coordinate with intergovernmental organisations with relevant expertise such as the Food and Agricultural Organization, United Nations Conference on Trade and Development (UNCTAD) and the International Labour Organization (ILO) to mobilise required support for interested parties in developing pilot projects.

“We want the member nations to promote international cooperation and the exchange of information among interested parties, including South-South and Triangular cooperation,” the draft report said.

“To continue to document experiences and lessons learnt concerning alternative livelihood, organise and periodically update international database of resources, within the WHO FCTC coordination platform, of best practices, instruments and measures to support the implementation of the policy options and recommendations,” said the draft report.

India and Bangladesh have also sought the WHO FCTC to monitor on parties in terms of implementation of the Article 17 and Article 18, and submit the progress reports during the next convention on the implementation of the present decisions, including the experiences gathered before the sessions.

In another proposal, India, Thailand and Uruguay have sought WHO FCTC members to create a forum for the discussions and explore possible legal options, under the auspices of the Convention of Parties (COP) and Convention Secretariat, to minimise the risk of the tobacco industry making undue use of international trade and investment instruments to target tobacco control measures.

The three countries, through their proposal, have also sought creation of expert groups to develop recommendations on combating the tobacco industry’s legal challenge to the sovereign right of the states to regulate tobacco as a public health measure.

“To develop options to provide special treatment of tobacco in trade and investment agreements, in considerations of its unique nature,” said the draft copy.

The three nations have also sought that every party of the convention should nominate members to the expert group, with a maximum of three per World Health Organization (WHO) region, taking into account relevant technical expertise, in particular in treating tobacco uniquely in trade and investment agreements

SCORECARD LAUNCHED ON FCTC IMPLEMENTATION IN THE ASEAN REGION

Nov 10th, 2016
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Singapore leads the way in a 10-country race in the ASEAN to protect public health from the harms of tobacco use according to the Framework Convention on Tobacco Control (FCTC) Scorecard launched by the Southeast Asia Tobacco Control Alliance (SEATCA).

In a region where nearly half of all adult men smoke and where 10% (125 million) of the world’s smokers live, it is indeed a race to reverse the smoking epidemic and its devastating impacts that claims about 500,000 deaths every year.

“The scorecard acknowledges achievements and progressive efforts of ASEAN governments while also identifying implementation gaps that need further action. It also encourages comparisons between countries to further motivate the strengthening of FCTC implementation. Overall, there is significant room for further progress,” said Dr. Ulysses Dorotheo, SEATCA FCTC Program Director.

Over-all, Singapore scored the highest (80.5%), followed by Brunei (71.2%) and Thailand (67.1%). Two key areas for improvement are in policies on tobacco taxation and protecting health policies from tobacco industry interference.

While raising tobacco taxes is recognized as among the most effective means of reducing consumption, this measure is the least well implemented among ASEAN countries. The region’s most expensive cigarettes are found in Brunei and Singapore, but cigarettes are still generally very affordable in all countries.

Most countries are experiencing tobacco industry interference and do not have a FCTC Article 5.3 policy or code of conduct to address this problem. Only Singapore has a FCTC Article 5.3 policy or code of conduct that is enforced by the whole government, while the Philippines has a FCTC Article 5.3 policy or code of conduct that applies to the whole government but needs improved enforcement.

Enforcement of smoke-free policies needs to be strengthened further to achieve the full health benefits of such policies. All countries restrict or ban smoking in many settings, but only Brunei enforces a smoking ban in all indoor workplaces, indoor public places, and public transport, as well as some outdoor public places.

While standardized packaging of tobacco or ‘plain packaging’ is widely regarded as the best way to package tobacco, no ASEAN country has yet implemented this measure.

All countries, however, require pictorial health warnings on packages, although some require them only for cigarettes and not for other (e.g. smokeless) tobacco products.

Thailand leads with the largest pictorial health warnings (85% front and back).

All ASEAN countries except Indonesia, a non-party to the FCTC, enforce a complete ban on tobacco advertising in print media, TV, radio, and cinema. Regrettably, only half of the ASEAN countries (Brunei, Malaysia, Singapore, Thailand, and Vietnam) enforce a ban on tobacco advertising at points of sale (POS).

The scorecard is available at www.seatca.org.

MORE THAN 100 COUNTRIES/TERRITORIES HAVE REQUIRED PICTURE HEALTH WARNINGS

Nov 10th, 2016
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A global milestone has been achieved. More than 100 countries and territories —105 in total —have required picture warnings on cigarette packages.

This finding comes from an international report released today at COP7. This new report, Cigarette Package Health Warnings: International Status Report, provides an overview ranking of 205 countries and territories based on warning size, and lists those that have finalized requirements for picture warnings. Regional breakdowns are also included.

Copies of the report are available at the Framework Convention Alliance booth.

Delegates are welcome to take as many copies of the report as they would like for use in their home countries.

Fifty eight percent of the world’s population is now covered by final requirements for picture warnings, and many more countries are in the process of doing so. One hundred and five countries is an increase from the 77 countries that had implemented picture warnings by the end of 2014.

For size, Nepal is the new world leader with warnings that cover 90 percent of the package front and back. Vanuatu will require 90 percent in 2017. India and Thailand are next, tied for third with 85 percent India has improved its global ranking considerably, moving from 136th in 2014 to third in 2016.

There are now 94 countries and jurisdictions (up from 66 in 2014) requiring warnings to cover at least 50 percent (on average) of the package front and back, and at least 142 requiring a minimum size (on average) of at least 30 percent.

Enormous progress continues to be made around the world.

Well-designed package warnings are a highly cost-effective means to increase awareness of the health effects and to reduce tobacco use. Picture-based messages are far more effective than text-only messages. Indeed, a picture says a thousand words.

Pictures attract more attention, and reach individuals who are illiterate or who cannot read the national language(s). For size, the effectiveness of warnings increases with size. Larger ones allow for bigger and better pictures, additional information and/or a larger font size.

The new report, currently available in English and French, was prepared by the Canadian Cancer Society, in collaboration with the Framework Convention Alliance.

The Campaign for Tobacco-Free Kids is assisting with translations for Arabic, Chinese, Portuguese, Russian and Spanish.

Rob Cunningham and Meaghan Dunn
Canadian Cancer Society

WHO discusses ENDS, continues taking fight to tobacco industry

Nov 10th, 2016
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http://ecigintelligence.com/who-continues-to-take-fight-to-tobacco-industry/

As the World Health Organization’s seventh Conference of the Parties (COP7) in India reached its halfway mark on Wednesday, the WHO was busy pushing for all loopholes to be closed in article 5.3 of the Framework Convention on Tobacco Control (FCTC).

The article states: “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.”

The WHO believes this should be given a broad interpretation, meaning that tobacco companies should be excluded entirely from discussions of policy and from events such as COP7.

Meanwhile, the WHO’s hostile tone continued unabated, with Big Tobacco and all pro-tobacco advocates being labelled bullies and trolls on Twitter.

Also at the conference, discussion of electronic nicotine delivery systems (ENDS) and electronic non-nicotine delivery systems (ENNDS) – terms in which the WHO includes e-cigarettes – and water pipe tobacco products continued.

The WHO has been highly critical of vaping and has also attacked the tradition of inhaling tobacco through the water pipe as extremely harmful.

Down on the farm

But agriculture remained a major focus, illustrating how the WHO may have to balance health ideals with economic realities.

Tobacco farms have become major employers across the world, and one of the stumbling blocks in the WHO’s drive toward a tobacco-free world is the loss of livelihood for millions of people involved in the growing industry.

As a result, one of the subjects being discussed at the event in Noida, near New Delhi, is economically-sustainable alternatives to tobacco growing.

In a report by the FCTC earlier this year, alternative pilot projects and new and better practices were outlined and their implementation urged. With pro-tobacco lobbies warning of reduced employment and damaged economies, the convention secretariat said: “In reality, annual consumption usually decreases by fractions of percentage points, thus allowing growers to gradually diversify into other activities as government adjustment programmes are implemented.”

Yet fewer than a quarter of nations that are parties to the treaty have made tobacco-growing alternatives a priority.

“Plenty of crops are available, from vegetables to fruits. Alternate livelihoods should be seriously explored and supported through appropriate marketing interventions which involves multiple markets and agencies,” said one delegate, who refused to be named.

Paying the lawyers

The issue of liability is also under discussion. The WHO has committed itself to provide legal help for civil and criminal litigation against tobacco companies. According to the WHO FCTC, providing tools to the 180 parties that have signed the treaty is giving them an opportunity to “avail themselves of effective means to hold the tobacco industry liable”.

Each party has to submit the progress it has made in building databases of information, engaging lawyers, and so on, and also propose how they should be subsidised.

Reducing global tobacco consumption by 30% by 2025 remains one of the most important agenda items for the WHO FCTC.

– Swati Gupta ECigIntelligence contributing writer

Africa: Uganda Team Kicked Out of WHO Meeting

Nov 10th, 2016
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http://allafrica.com/stories/201611110108.html

A team of Ugandan officials were on Monday blocked from attending a tobacco control meeting adding to a series of diplomatic embarrassments where senior government personnel have been denied entry into WHO meeting venues on the orders of their own government colleagues.

Last month, delegates from the Trade Ministry including MPs were kicked out of a World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC) meeting in the Algerian capital of Algiers.

A similar incident happened two years ago in Moscow, Russia where a Ugandan delegation was kicked out of similar meetings for lack of coordination.

Daily Monitor understands that officials who include MPs were blocked from registering for the India conference on the orders of Dr Sheila Ndyanabangi, the Programme Manager for Mental Health and Substance Abuse in the Ministry of Health who is also the “focal person” for the meeting.

The MPs who were blocked included Jalia Bintu (Masindi District Woman MP) Lowila Oketayot (Pader District Woman MP), Isaac Etuuka (Madi Okolo) and Dan Muheirwe (Buhaguzi County, Hoima). Mr Abdul Kasule the Assistant Commissioner for Trade in the Ministry of Trade, Industry and Co-operatives was also blocked.

Before departure for the meeting, Dr Ndyanabangi had told Daily Monitor in an interview that she was prohibited by law from engaging with any of the tobacco industry players and their promoters.

Only officials on a nomination list issued by outgoing Ministry of Health Permanent Secretary Dr Asuman Lukwago on August 26, were allowed to access the meeting venue.

Those nominated by Dr Lukwago were drawn from the Ministry of Health, Uganda National Bureau of Standards, Ministry of Finance and NGOs fighting tobacco consumption such as the Bill and Melinda Gates Foundation- backed Centre for Tobacco Control in Africa which had three out of the 14 officials on the Ministry of Health delegation. They were led by Dr Ndyanabangi.

According to a source at the meeting who declined to be named because they are not authorised to speak to the media, Mr Etuuka presented his credentials to the security at the meeting venue in New Delhi but as he was being registered and accredited, Dr Ndyanabangi appeared with the list and denied him access, citing the orders of the Permanent Secretary of Ministry of Health.

Mr Etuuka and his colleagues had their documents, authorising them to attend the meeting, withdrawn and they were subsequently barred from attendance.

Attempts by the politicians to meet Uganda’s High Commissioner Ms Elizabeth Napeyok on Monday, were futile. One of the blocked MPs told this newspaper that Ms Napeyok informed them through Ms Deborah Kembabazi, the administrative attaché at the High Commission, that she would not meet them.

However, after consultations, the legislators yesterday met Ms Napeyok, who informed the team that it was not possible for her to assist them to make any changes to the delegation composition.

According to a source privy to the meeting, Ms Napeyok informed the legislators, that she would be writing to Foreign Affairs Minister Sam Kuteesa explaining her constraints.

The MPs were also advised to write to the office of the Speaker of Parliament, the Clerk to Parliament and copy in the Ministry of Foreign Affairs and Trade protesting their being blocked from the meeting.

Mr Kasule was also advised to file a report to his superiors in Kampala protesting the incident. When contacted, Chris Obore, the Parliament’s Director of Communications and Public Affairs, said the House leadership was yet to be informed about the incident.

“When they (MPs) write, that is when Parliament will know and relevant action will be taken,” he said.

Monday’s incident was yet another in a row between officials of the Health Ministry on one hand and several other government departments and tobacco farmers on the other over Uganda’s representation at meetings of that nature.

Ministry of Health officials have made it clear that their position to block the legislators or any person involved in the promotion of tobacco growing and trade is guided by Article 5.3 of the WHO FCTC which stops member countries from nominating “any person employed in the tobacco industry, or entity working to further its interests, or any person benefitting from proceeds of tobacco trade.”

Meanwhile, journalists too were not spared. They were also kicked out of the WHO meeting after delegates voted unanimously to ban the press from covering the conference, a move that has sparked wide condemnation from the media fraternity.

IMPLEMENTATION SHOULD BE FOCUS OF 2018-2019 BUDGET AND WORKPLAN

Nov 10th, 2016
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In 2014, the 6th Conference of the Parties (COP) adopted a voluntary global target for a 30-percent relative reduction in tobacco use prevalence by 2025. This goal will not be achieved unless steps to further implementation of the Framework Convention for Tobacco Control (FCTC) are taken immediately.

Parties are committed to implementation, and by including key priorities within the workplan, they can advance and accelerate harm reduction in time to meet this global deadline.

One of the steps to success will be creating and launching an implementation review committee as proposed under agenda item 6.1.

The committee would provide a systematic review of implementation reports and guidance on how to improve and accelerate efforts to reduce tobacco use prevalence.

The effectiveness of this committee would be furthered by allowing nations to share and monitor global progress on implementation through the creation of an expertdriven mechanism— an implementation review mechanism, or IRM- compile such information and report on the global progress.

However, implementation is not possible without adequate resources.

If they are to be effective, both initiatives must be adequately funded. Also, the Secretariat should be mandated to play an active role in mobilising resources for further implementation. Through a system of review, Parties’ needs could be identified, prioritized and formally communicated from the Secretariat to donors and potential donors.

The increased role of the Secretariat would allow for additional key strategies to be included in the workplan including:

• Travel support to meetings of the FCTC COP for low- and middle-income countries, so that those who bear the greatest burden of tobacco-related deaths are a part of the ongoing discussions;
• Support for the Protocol to Eliminate Illicit Trade Products (ITP) so that the Meeting of the Parties (MOP1) can take place swiftly after the treaty comes into force (after 40 countries sign on);
• A knowledge hub for Article 5.3 that would track tobacco industry interference in political systems around the world.

To carry out these crucial and necessary activities, FCA recommends that the Secretariat’s budget proposal be adopted with the proposed increase in the Voluntary Assessed Contribution.

FCA also proposes that the FCTC workplan create an ongoing, multistakeholder finance dialogue, similar to that of the World Health Organization (WHO) in order to assist the Secretariat in further identifying and addressing member resource needs.

While these discussions may be difficult, the workplan and budget must reflect implementation plans and provide adequate resources if the FCTC hopes to save the lives it has fought so hard for., guidelines alone are not enough.

WHY PARTIES SHOULD EMBRACE IMPLEMENTATION REVIEW

Nov 10th, 2016
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In the midst of a COP week, it’s easy to lose perspective on just how much the FCTC has already achieved – and on how that achievement happened.

Not so long ago, when the FCTC was adopted, the idea of smokefree bars and restaurants was outlandish in most countries. Now it’s a reality in many places.

Not so long ago, health warnings in most countries were messages in small type, barely visible on the side of the pack. Now many, many Parties have graphic health warnings, covering half the pack or more.

A key ingredient to this rapid spread of FCTC-grounded policies was the guidelines process.

Hashing out the details of policy recommendations on these issues, in working groups and then at COP sessions, may have seemed like frustrating, hard work at the time.

But in the process, Parties learnt from each other, from experts and from civil society, about what does and doesn’t work, about what has the biggest impact, about the pitfalls that regulators face. Parties helped each other to achieve giant steps in tobacco control policy.

Implementation review is an extension of the same idea:

Parties helping each other, in this case to overcome the numerous implementation difficulties that most countries still face. An implementation review committee (IRC), made up primarily of Parties, would look at individual reports and identify Parties that appear to be facing particular problems implementing the FCTC. The committee would then follow up with those Parties individually to scope out the underlying problems and see what can be done to help fix them.

In the process, the committee would gather lots of information on Parties’ shared implementation problems, which it would in turn synthesise and report back to the COP.

There are many advantages to this kind of mechanism. First, it would give clear purpose to the biennial task of filling in the lengthy FCTC reporting instrument: identifying Parties most in need of help.

Second, in some cases Parties simply need structured advice, based on best practices from other countries, in order to overcome some types of obstacles. (Example: setting up an inter-ministerial FCTC committee that has real buy-in from non-health ministries.)

Third, where it becomes clear that Parties need technical assistance or more resources, implementation review would help in identifying what exactly the biggest needs are. And that in turn provides an excellent fund-raising tool for FCTC implementation.

Implementation review mechanisms (IRM) are common amongst international treaties. There are many different models; it’s important to think how the FCTC one should work, as the drafting group working on this issue will no doubt be doing.

In some treaties, such mechanisms may be primarily about providing a way for Parties to check up on each other. For example, a treaty may have quite a muscular IRM to
enforce compliance.

The FCTC is not like that: the vast majority of Parties are full of good will and trying to do their best to combat a major public health problem. For the most part, they
generally have little interest in checking up on their neighbours.

Instead, they want to learn from eachother.

Accordingly, implementation review for the FCTC should be about mutual support. This is baked into the Terms of Reference proposed by the expert group on reporting, which specifies that the proposed IRC “shall be objective, facilitative in nature… shall make non-binding recommendations, and be focused on assisting Parties…”

Mutual assistance is what got the FCTC this far – it’s crucial to allow Parties to collectively overcome their remaining implementation challenges.

CIVIL SOCIETY CAN HELP PARTIES USE ARTICLE 19

Nov 9th, 2016
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The Article 19 Expert Group has produced an excellent civil liability toolkit to help Parties strengthen their laws to hold tobacco companies legally accountable for the deaths, disease and health care costs that their products and misbehaviour produce.

But the toolkit won’t do any good in the closet.

First, it needs to be used by the Parties to strengthen their laws;. Second, the Parties, or civil society, need to use these laws to actually bring litigation against the industry. Nongovernmental organizations (NGOs) can provide critical assistance at both stages., Tobacco litigation has been demonstrated to contribute powerfully to achieving tobacco control goals. In the United States, health care litigation has:

1. Produced billions of dollars of annual payments to the states,
2. Forced manufacturers to raise prices sharply— greatly reducing smoking, especially among youth.
3. Funded the counter-advertising campaign, Truth,; and
4. Revealed millions of internal industry documents that have made the industry politically toxic, making strong national tobacco control legislation possible for the first time.

FORCING THE TRUTH

Individual litigation, brought by private attorneys, has forced the industry to stop pretending that “light” cigarettes are less dangerous than other cigarettes, drawn media attention to the fact that cigarettes kill real people (as opposed to dreary statistics), and redirected the industry’s PR machinery from denying the dangers of cigarettes to blaming plaintiffs for being foolish and weak-willed for actually using them. In France however, the tobacco control law known as the Loi Evin authorised civil society to bring litigation against tobacco companies that violate advertising restrictions. This has resulted in effective enforcement of the law, along with substantial fines that have helped fund tobacco control organisations.

Why do Parties need help from NGO’s? Principally because not many people in the world – and few or none in most Parties – have experience bringing litigation against the tobacco industry. Health ministries certainly don’t have that expertise, but neither do justice ministries. Such litigation has only been attempted in a few countries, with even fewer chalking up successes to date.

EXPERIENCE NEEDED

The challenges and opportunities this litigation presents are quite different from other litigation.

Consider some examples. Much of the industry’s misbehaviour has taken place in the US or Britain and while there are millions of internal documents- many of which are incriminating— it’s not obvious how to find the right ones or get them admitted into evidence. Many of these documents are publicly availabe at http://truthinitiative.org.

Tobacco defendants will also try to complicate the proceedings by insisting that each victim’s case is so unique that it must be tried separately, making personal injury litigation and even health care recovery litigation prohibitively expensive to bring. This experience needs to be presented to legislators and judges to persuade them to
rationalise and simplify procedures. And of course, tobacco defendants are endlessly inventive in making up reasons for delays and pre-trial appeals. Successful efforts to limit these possibilities in advance and to debunk claims that have been refuted elsewhere will also need the assistance and perhaps testimony from veterans of prior tobacco litigation battles.

Fortunately, help is readily available. The Tobacco Products Liability Project, part of the Public Health Advocacy Institute at Northeastern University School of Law in Boston, US, has been addressing these issues since its founding in 1984. We have held more than 20 conferences with multi-national participation in Boston and have participated in multiple tobacco litigation conferences in each region designated by the World Health Organization. Since the purpose of the project is to encourage tobacco litigation as a public health strategy, we are happy to share our experience and expertise with Parties and civil society seeking to implement Article 19. Experienced attorneys are also available for technical assistance at the McCabe Centre for Law and Cancer in Melbourne, Australia and the International Legal Consortium at the Campaign for Tobacco-Free Kids in Washington, DC.

Richard Daynard
Public Health Advocacy Institute,
Northeastern University School of Law, Boston

HOW LONG WILL WE LET PEOPLE GET AWAY WITH MURDER?

Nov 9th, 2016
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How would you respond to this scenario? A cosmetics company releases a new line of fragrances that promises to “make life wonderful.” The product is a hit, and millions of consumers world-wide begin using it daily. But researchers soon find that the fragrances contain a very addictive chemical that is absorbed through the skin. Worse, the chemicals that make the fragrances alluring are found to be toxic and carcinogenic, and the cancer rate of users skyrockets.

Further investigation reveals that not only did the cosmetic company know about these problems, it had invested a fortune to ensure that the fragrances are as addictive as possible. Are the corporate ringleaders guilty of murder?

Of course they are. Not only would the fragrances be removed from shelves, the CEO and other top corporate officials would be arrested and prosecuted. In 2014 the owner of a peanut company in the US was sent to prison for knowingly putting salmonella-tainted peanut butter on the market, killing nine people. And peanut butter is not addictive.

So why aren’t tobacco executives treated similarly? In a word, inertia.

By the time scientists and governments were sure of the health impacts of tobacco, hundreds of millions of people were already addicted, and tobacco use had become normalised. The public health community has spent decades, with marked success, denormalising tobacco use.

Meanwhile, the tobacco industry has not only continued selling products it knows to be deadly and addictive, it has worked hard to make them more addictive and therefore more dangerous.

If cigarettes were introduced to the market today, and their impact was immediately recognised, criminal charges would quickly follow. It is only the historical legacy and political power of tobacco companies that have kept tobacco executives out of prison. To be clear, getting away with a crime for a long time is not a legal defence.

Criminal liability has received scant attention under FCTC Article 19. The report of the Expert Group to this COP, which is excellent on civil liability, does not include the word “criminal” except when it is lumped in with the phrase “civil and criminal liability”. This partly reflects the complexities of addressing criminal law in 180 jurisdictions. But perhaps it is time for society as a whole – to begin considering how long we will let people get away with murder.

Civil liability is a key litigation tool in the fight against Big Tobacco. In the US, Canada, and other jurisdictions, civil cases have had a profound impact, especially in  revealing the underhanded tactics of the industry.

In many of those cases, judges have opined on the potential criminal ramifications of such tactics, but to date no criminal charges have been filed addressing the tobacco industry’s core business practices.

A successful criminal prosecution would be a fundamental blow to the tobacco industry’s ability to carry on with “business as usual”. The key  acts that add up to murder, including nicotine manipulation and marketing, would have to cease; recruitment of corporate officials would be nearly impossible; corporate executives indicted in one jurisdiction would not be able to travel there, and would face extradition.

Since the adoption of the FCTC, there has been much talk of “end-game” scenarios in tobacco control. Criminal liability needs to be on that list.

Chris Bostic, deputy director, policy Action on Smoking and Health (US)

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