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Tobacco lobbyists demand say in EU debate on … tobacco lobbying

When European Ombudsman Emily O’Reilly announced she would host a public conference on how to improve transparency in tobacco lobbying, her office quickly found itself grappling with an ethical predicament: Should tobacco lobbyists be let in?

It may sound counter-intuitive to prevent the industry that this Wednesday’s conference will discuss from having an official role in it. Yet the organizers of a similar event in the European Parliament earlier this month did just that, arguing that they were required to keep tobacco lobbyists out by an international treaty.

In the past, the ombudsman has expressed concerns about the lack of transparency surrounding tobacco lobbying, causing some anti-tobacco campaigners to expect a strong statement from her which would set a standard for other EU institutions. But tobacco lobbyists were equally worried that they would be shut out altogether from a debate directly involving them.

“What could be more transparent than a public debate?” — Tobacco lobbyist

The issue is how the EU chooses to implement the Framework Convention on Tobacco Control (FCTC), a United Nations deal signed by EU institutions that seeks to keep the tobacco industry out of the health policy process. The language in the treaty is open to interpretation, but lobbyists insist it should not be used to ban them from public events.

“Keeping the industry off the panel while they talk about our business doesn’t make any sense and has nothing to do with FCTC,” one tobacco lobbyist said. “For an event supposedly about transparency, what could be more transparent than a public debate?”

The ombudsman ultimately chose a compromise likely to please nobody: Tobacco lobbyists can attend as audience members, but will not be invited to join the panel discussion. Anti-tobacco and transparency campaigners will be unhappy about policymakers and lobbyists sharing a venue; lobbyists argue they are being denied their right to free expression.

In any case, the upshot is that when European Commissioner for Health Vytenis Andriukaitis arrives at the event in Brussels, he will be surrounded by tobacco lobbyists — although not all of them will be immediately recognizable as such.

According to a preliminary list of participants, some lobbyists who plan to attend have not signed up to the EU Transparency Register and, therefore, should be barred from having any interaction with the commissioner and his staff.

The controversy is forcing EU health bureaucrats to figure out how to implement provisions regarding industry lobbyists, and to decide whether a hard-line stance will expose them to the accusation they are stifling debate on the future of a legal product.

No blanket ban

The dispute focuses on an article in the convention which states that when “setting and implementing” public health policies, officials should “protect these policies from commercial … interests of the tobacco industry.”

The industry argues that the ombudsman’s conference, which has nothing to do with formulating health policy, does not fall under the remit of the article. What’s more, it says the thrust of the convention is to bring about transparency in tobacco lobbying — something most industry representatives accept.

This argument gets some unlikely support from the framework convention itself: Officials at the FCTC Secretariat point to the accompanying guidelines as the key to understanding how governments should handle day-to-day interaction with lobbyists.

“The Convention calls [on] parties to limit their interactions with the tobacco companies and their interests as much as possible, but does not mandate a blanket ban,” said Tibor Szilágyi at the secretariat in Geneva. “However, the [FCTC] calls for transparency of interactions that still occur.”

The largest tobacco industry association, the Confederation of European Community Cigarette Manufacturers, is relieved to be let in but is still angry at being excluded from a panel including Giovanni La Via, who chairs the European Parliament’s public health, food safety and environment committee.

The group wrote to O’Reilly on April 19 to protest, according to a redacted version of the correspondence released by the ombudsman’s office. An uncensored version of the letter, seen by POLITICO, was signed by Ronan Barry, a British American Tobacco executive and president of the industry body.

Tobacco manufacturers were “disappointed” by O’Reilly’s decision not to invite them, Barry said, urging her to “reconsider our request to allow a representative [to] participate fully in the event as a speaker” or at least to ensure that the industry be “provided with adequate time to present our position and address any queries” raised in the debate.

The response from ombudsman spokesperson Gundi Gadesmann made it clear officials were taking a strict interpretation of the tobacco control treaty, meaning they could not involve the industry in the official discussion.
“It would be harmful if they started taking the floor all the time and hijacked the discussion” — Florence Berteletti, director of Smoke-Free Partnership, an anti-tobacco NGO

In line with the convention, they did not invite in industry representative, she wrote, adding that the event “is not about the tobacco industry. It is about how the EU institutions comply with their transparency obligations as regards their dealings with representatives from the industry.”

That left the tobacco industry fuming. One tobacco lobbyist said the letter proves how indefensible the ombudsman’s position is, because it conceded the conference was not about the formulation or implementation of health policy.

Yet Article 5.3 of the tobacco convention, which Gadesmann invoked in her justification to exclude industry panelists, refers specifically to the “setting and implementing” of public health policies.


Industry sources said Barry planned to try to speak from the audience to confront the ombudsman about her decision to exclude tobacco manufacturers from the panel.

“It would be harmful if they started taking the floor all the time and hijacked the discussion,” said Florence Berteletti, director of Smoke-Free Partnership, an anti-tobacco NGO. “I would hope they would intervene just once and that the discussion would then move on.”

Tobacco lobbyists are dismayed but not surprised. In February, O’Reilly took aim at the European Commission for not making its dealings with the tobacco industry “more transparent” and for lacking “proactivity” in implementing the convention

However, the ombudsman’s decision to let lobbyists attend the conference gives the industry an opportunity to make its presence felt. The preliminary list of attendees, obtained by POLITICO, suggests at least 17 industry representatives have already signed up.

The list highlights the challenge of enforcing the requirement that signatories to the convention “ensure that all operations and activities of the tobacco industry are transparent.” Under EU transparency rules, it’s possible for some lobbyists to avoid disclosing their activities.

For example, Brussels lawyer Kathryn Davies, from the firm Berwin Leighton Paisner, will be in the audience, according to the list. When contacted, Davies declined to reveal whether her firm was working for tobacco companies.

Lawyers are not required to sign up to the European Parliament and Commission Joint Transparency Register, even if they are working as lobbyists. As a result, the names of their clients often remain secret, protected by attorney-client confidentiality.

Some lobbyists who will be in the audience are also not signed up to the Register, which means that under EU rules they will not be allowed to interact in any way with Andriukaitis or members of his cabinet.

Lobbyist Finn Meunier, who works for German firm Concilius AG, would not disclose whether he would attend on behalf of a tobacco company. Another German lobby firm called 365 Sherpas did not respond to requests for information.

Among the lobbyists who are listed on the Register and will therefore be able to speak to the commissioner and his staff are those from Bernstein Public Policy and Red Flag, representing British American Tobacco; lobby firm Pantarhei Advisors Europe, for Philip Morris; and Kreab, representing Swedish Match. Imperial Tobacco and British American Tobacco will also be represented by in-house lobbyists.

Quentin Ariès contributed reporting to this article.

James Panichi

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