This document relates to item 5.7 of the provisional agenda
Seventh Session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, 7-12 November 2016, New Delhi
FCA Policy Briefing
Report of the Article 19 Expert Group
Key recommendations
COP7 should request the Convention Secretariat to take the following steps to support Parties with implementation of Article 19:
• Make the toolkit, prepared by the expert group, accessible to Parties, including by positing in on the FCTC website and updating it regularly;
• Develop and maintain a database of experts for technical assistance, as well as a referral system that would lead Parties to individuals with demonstrated experience in tobacco litigation.
To ensure ongoing implementation of Article 19, three additional steps should be taken:
• Future COP sessions should monitor progress on Parties’ implementation, including through reports from those with relevant expertise on Article 19;
• For each COP session the Secretariat should prepare an overview of activities related to Article 19, specifically on implementation assistance, including requests for technical assistance and referrals to other relevant organizations;
• COP9 should include an assessment of the toolkit including how it is being utilised by Parties and promoted by the Secretariat.
Background
Implementation of Article 19 presents Parties with an opportunity to hold the tobacco industry liable for its abuses. Unfortunately, according to the Global Progress Report (document FCTC/COP/7/4) the implementation rate of this article is one of the lowest, 34 percent on average. In order to enhance Parties’ capacity to use litigation to hold the industry to account, COP5 established an expert group whose mandate was extended at COP6.
Expert Group on Article 19
Between COP5 and COP6, the expert group examined best practices in applying civil and criminal liability as part of Parties’ implementation of Article 19. The group identified seven broad areas in which Parties could develop legislation in order to facilitate tobacco-related liability mechanisms. The expert group stressed that individual country approaches should be tailored to the unique country context, as not all of these legislative options are appropriate to all jurisdictions or types of litigation.
Following the extension of its mandate by COP6, the expert group focused its work on supporting Parties in implementing the recommendations outlined above. To this end, the expert group report (document FCTC/COP/7/13) to COP7 presents a civil liability toolkit to assist Parties that includes:
• Scenarios for strengthening implementation of Article 19;
• An index of procedural reforms relevant to all civil claims.
FCA congratulates the expert group on its work and report, including the toolkit. Tobacco industry liability is a promising but underutilised tool in combating the tobacco epidemic. Given the complexities of 180 different legal systems, the expert group has done an admirable job in outlining key steps that Parties can take to advance the feasibility of civil litigation. FCA fully supports the toolkit, and urges Parties to make full use of it.
Toolkit to support implementation of Article 19
As COP considers the expert group report and the next steps in the implementation of Article 19, FCA hopes that it will take into account a number of issues pertinent to both discussions, particularly in updating the toolkit, in furtherance of the goal that it be a living document.
• In several places in the expert group report, the phrase “smoking-related disease” is used in place of “tobacco-related disease”. These terms should be harmonised to be more inclusive of the tobacco disease burden;
• In paragraph 25 of the toolkit, the expert group recommends that Parties consider the provision of specialist procedures and judges. While certainly beneficial in most situations, in jurisdictions where the tobacco industry is politically powerful such special litigation streams may bring a result opposite to the intentions expressed in paragraph 19. FCA recommends appending paragraph 25 with the clause “as appropriate where this would facilitate just, speedy and inexpensive disposition of all cases in pursuit of the intentions of holding the industry legally accountable”;
• The expert group report includes no separate discussion of criminal liability, which is expected given the great diversity of criminal justice systems and the fact that no criminal case has yet been successful. Legal scholarship suggests that criminal liability may hold in some jurisdictions. FCA urges individual Parties to explore the possibility of holding tobacco corporations and their executive officers criminally responsible for their actions, including those that result in tobacco-related diseases, disabilities and premature deaths;
• Regarding paragraph 21 of the toolkit, FCA takes note of the decision in the Philip Morris International v. Uruguay trade arbitration, which was made public after the meeting of the Expert Group in 2016. In the decision, the panel noted that the FCTC is “evidence-based”, and ruled that Uruguay could rely upon it as the scientific basis for tobacco regulations. FCA recommends that paragraph 21 be amended as follows: “Adopt rules of evidence and preclusion that allow claimants to rely on the FCTC and on findings made, or evidence given, in previous tobacco cases including in other jurisdictions.”
Next steps: Implementation of Article 19
Now that the expert group’s mandate has ended, the COP and the Convention Secretariat should act to ensure implementation of Article 19. The toolkit is meant to be a living document. It should be periodically updated and improved as new evidence, data and Parties’ feedback becomes available. It is imperative that this toolkit be easily accessible to Parties.
At its sixth session in Moscow, the COP requested (document FCTC/COP/6(7)) that the Secretariat: a) develop and maintain a database of experts for technical assistance, and b) prepare and maintain a list of resources for Parties. This request should carry forward along with the recommendations in paragraphs 28 & 29 in document FCTC/COP/7/13 requesting the Convention Secretariat to make the toolkit accessible to Parties as a dedicated mechanism of assistance for implementation of Article 19, to update it regularly, and to make it available online. FCA hopes that the Secretariat will develop a referral system that would lead Parties to individuals with demonstrated experience in tobacco litigation.
To ensure ongoing implementation of Article 19, three additional steps should be taken:
• Future COPs should monitor progress on Parties’ implementation, including through reports from those with relevant expertise on Article 19;
• For each COP session the Secretariat should prepare an overview of activities related to Article 19, specifically on implementation assistance, including requests for technical assistance and referrals to other relevant organisations. This overview should be included under an appropriate COP agenda item, such as “implementation assistance” and/or “mechanisms of assistance”;
• COP9 should include an assessment of the toolkit including how it is being utilised by Parties and promoted by the Secretariat.