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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.

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