THE PROTOCOL TO ELIMINATE ILLICIT TRADE IN TOBACCO PRODUCTS: A BRIEF HISTORY
Article 15 on the illicit trade in tobacco products was the first article on which an agreement was reached during the Framework Convention on Tobacco Control (FCTC) negotiations. The Parties recognised in this article that the elimination of all forms of illicit trade in tobacco products was an essential component of tobacco control. It is was rather novel that a public health treaty deal with illicit trade. Article 15 was only a first step. At the second Conference of the Parties, the decision was taken to start the negotiations for a separate protocol to eliminate the illicit trade in tobacco products (ITP). The ITP was adopted in 2012 and entered into force a week ago on 25 September 2018.
In the nineties, a big concern was that globally, a third of all exported cigarettes went missing while they were being transported internationally and entered into the contraband market. The evidence suggested that the tobacco industry was the chief beneficiary of smuggling. The industry benefited, using smuggling as a market entry strategy.
An article in the British Medical Journal in October 2000 outlined the reasons for the Protocol. “Tobacco smuggling has become a critical public health issue because it brings tobacco to markets cheaply, making cigarettes more affordable and thus stimulating consumption, consequently increasing the burden of ill health caused by its use. Smuggling is not a small phenomenon: we have estimated that, globally, a third of legal cigarette exports disappear into the contraband market. This extraordinary proportion results in a second key effect of smuggling—the loss of thousands of millions of dollars of revenue to government treasuries.”
The suggestion was made for a protocol to address the active involvement of the tobacco industry in smuggling operations. “In October 2000, the World Health Organisation will start negotiations for a framework convention on tobacco control. A specific protocol could deal with tobacco smuggling. It could, for instance, require “chain of custody” markings on all packages of tobacco products, placing the onus on the manufacturers to show that cigarettes arrive legally in their end user markets. Only such action at international level will resolve the problem, but it has now been shown to be soluble.”
Evidence of the direct and indirect involvement of the tobacco industry in cigarette smuggling is well documented–in internal documents that tobacco companies were forced to release in the course of litigation and in their own admission and court judgements. Since 1997, there have been several official investigations and subsequent court cases in different parts of the world (Hong Kong, Canada, Colombia) that have accused the industry of supplying smuggled cigarettes or at least of being aware of the illegal destination of their products.
The adopted Protocol is in line with the suggested solution outlined above, but is much more powerful. The ITP comprises 47 Articles; the substantive key provisions in Part III deal with supply chain control with the objective of tackling the illicit tobacco trade at the global level.