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November 30th, 2007:

Combating The Illicit Trade In Tobacco Products

See why a protocol to the WHO-FCTC is needed on Combating The Illicit Trade In Tobacco Products here.

Protocol on Illicit Trade in Tobacco Products



Parties to the WHO Framework Convention on Tobacco Control (FCTC) recognize, in Article 15.1, that the elimination of all forms of illicit trade in tobacco products, including smuggling, illicit manufacturing and counterfeiting, is an essential component of global
tobacco control.

Illicit trade in tobacco products undermines high tobacco taxation policy, which evidence shows is one of the most effective ways to reduce tobacco consumption,1 and deprives governments of billions of dollars in taxation, thereby reducing the funding available for public health and other policies. In addition to being a major health problem, illicit trade in tobacco products poses a significant threat to the maintenance of law and order. There is evidence that illicit trade in tobacco products is carried out by organized transnational criminal groups, and that money gained from illicit trade in tobacco products is used for other serious criminal enterprises, including terrorist operations.2

The Framework Convention Alliance (FCA) estimates that the global illicit cigarette trade represents approximately 10.7% of global sales, or 600 billion cigarettes annually, and that losses to government revenue as a result of illicit trade in tobacco products total approximately $US 40 to 50 billion annually.3

Illicit trade in tobacco products is a transnational problem, the resolution of which will require international cooperation. While Parties to the FCTC have already accepted important obligations with respect to illicit trade in Article 15 of the Convention, an effective approach to the problem will require Parties to commit to the implementation of additional measures, including a comprehensive system of international cooperation. The need to supplement the provisions of Article 15 with additional commitments was recognized by the first session of the Conference of the Parties to the FCTC (COP-1), which noted ‘the need to further develop the obligations set out in Article 15 in an internationally binding legal instrument’,4 and decided to establish an expert group to prepare a template for a protocol on illicit trade, to be presented to its second session (COP-2).5

At COP-2, the Parties to the FCTC decided to establish an intergovernmental negotiating body (INB) to draft and negotiate a protocol on illicit trade.6 The decision recognised that the template prepared by the expert group establishes a basis for initiating the negotiations by the INB. As such, it invited Parties and accredited intergovernmental and nongovernmental organizations to provide comments on the template, at the latest three months prior to the first session of the INB. In its capacity as an accredited nongovernmental organization, representing over 300 nongovernmental organizations from more than 100 countries, the FCA submits these comments in support of the template prepared by the expert group.

The content of the template: key elements of a protocol on illicit trade On the basis of a firm recognition that illicit trade in tobacco products ‘significantly contributes to the global death and disease burden caused by tobacco consumption by making cigarettes cheaper, more accessible and more difficult to regulate’,7 the template prepared by the expert group recommends the adoption of a protocol to the FCTC under which Parties agree to implement a comprehensive set of measures – at both the domestic and international levels – to combat illicit trade. Key elements of a protocol, as identified in the template, include:

  • measures dealing with control of the tobacco product supply chain, including tracking and tracing of tobacco products, licensing of participants in the tobacco business, obligations on tobacco manufacturers to control the supply chain for their products, record keeping obligations, anti-money laundering measures, and restrictions on internet sales of tobacco products;
  • measures dealing with criminalization and enforcement, including establishment of offences, sanctions and penalties, search, seizure, tracing, freezing, confiscation, destruction and disposal, enhanced law enforcement capacity, special enforcement techniques, and establishment of jurisdiction; and
  • international cooperative measures, including information sharing, cooperation in scientific, technical and technological matters, cooperation in training, cooperation in respect of investigation and prosecution of offences, mutual legal and administrative assistance, and extradition.

The template also discusses a number of significant measures which may support the core commitments proposed, including public awareness raising and an appropriate institutional framework to support the protocol and its implementation (including financial resources and implementation mechanisms such as reporting and compliance monitoring).

Each of the measures identified in the template prepared by the expert group will be significant in an effective protocol to combat illicit trade in tobacco products. The rationale for the inclusion of each of these measures, and the content which should be considered for inclusion in a protocol, is discussed below.

See the entire Framework Convention Alliance ‘Comments on the template for a protocol on illicit trade in tobacco products‘ here.

Light Cigarette Lawsuits in the United States: 2007

Many smokers and potential smokers believe that light cigarette brands* are less hazardous to their health than standard brands.1 As a result, millions of smokers have switched to light cigarettes instead of attempting to quit.2 For the same reason, light cigarettes are popular among new smokers, particularly youth.3 The truth, however, is that light cigarettes are not safer than other brands and are just as addictive.4

Have these smokers been misled? In 2001, the National Cancer Institute published an analysis of internal industry documents that appeared to show that the cigarette industry knew the truth about light cigarettes, but kept it secret.5 Further evidence of wrongdoing was revealed by the United States Department of Justice’s lawsuit against the leading cigarette manufacturers.6 Federal District Court Judge Gladys Kessler, who presided over the case, made the follow key findings in August of 2006:

For several decades, Defendants have marketed and promoted their low tar brands as being less harmful than conventional cigarettes. That claim is false. . . . By making these false claims, Defendants have given smokers an acceptable alternative to quitting smoking, as well as an excuse for not quitting.7
. . .
Defendants’ conduct relating to low tar cigarettes was intended to further their overarching economic goal: to keep smokers smoking; to stop smokers from quitting; to encourage people, especially young people, to start smoking; and to maintain or increase corporate profits.8

Believing they were misled, light cigarette smokers have begun to bring lawsuits against cigarette manufacturers. The manufacturers deny any wrongdoing and are vigorously defending themselves in court.

This law synopsis examines light cigarette litigation. Section I provides a brief history of light cigarettes and their marketing. Section II provides an introduction to the ways tobacco litigation advances public health goals. Sections III and IV focus respectively on light cigarette class actions and individual light cigarette lawsuits. Section V discusses some key federalism issues at play in the litigation. Section VI touches on some of Judge Kessler’s findings of fact about the cigarette industry’s marketing of light cigarettes.

Key Points:

  • Cigarettes branded as “light,” “ultra light,” “low tar,” and the like are not designed to deliver less tar or nicotine to the smoker or otherwise reduce harmful exposure to the many toxic chemical compounds in cigarette smoke.
  • Internal industry documents show that cigarette manufacturers have been aware for many years that light cigarettes expose smokers to just as much tar and nicotine as other brands, but still misled smokers and potential smokers into believing otherwise.
  • Class action lawsuits alleging that cigarette manufacturers fraudulently misled consumers into believing light cigarettes are less harmful than other brands have been filed in over two dozen states, but only a few of the class actions have been allowed to proceed to trial.
  • The only light cigarette class action lawsuit to reach trial resulted in a multibillion dollar judgment against Philip Morris, but was overturned by the Illinois Supreme Court.
  • In 2006, a federal judge ruled that leading cigarette manufacturers violated the federal Racketeer Influenced and Corrupt Organizations Act ─ in part because of their light cigarette marketing.

Read the entire document on Light Cigarette Lawsuits in the United States here.