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The relevant portions of the Chair's Text appears below.  Additions proposed by ASH are shown in red capital letters LIKE THIS and deletions proposed by ASH are shown in red French brackets {like this}.  Individual comments follow each of the 26 separate proposals.

Chair's Text of a Framework Convention on Tobacco Control

D 2. Every person should be fully informed about the addictive and lethal nature of tobacco consumption, and non-smokers should be {adequately} protected from exposure to tobacco smoke.

ASH COMMENT:  The use of the word "adequately" implies that some level of exposure short of a total smoking ban may be sufficient (adequate).  However, tobacco smoke has been declared by numerous governmental reports in several countries -- as well as in dozens of scientific studies -- to be a known human carcinogen, and one for which no safe lower level has ever been found.  Therefore no level of exposure can be "adequate."  This issue is particularly important for at least two reason: (1) because nonsmokers should not be the innocent victims of  tobacco smoking; and (2) because bans on smoking in public places have been shown to be one of the most efficient and cost-effective ways to discourage smoking.

REPLACEMENT:  D 5. Because tobacco is the only trade product which both addicts and ultimately kills a substantial proportion of its users, and imposes huge health care and other costs on both governments and private businesses, the terms of this Convention and any of its Protocols should take precedence over any other international agreement  or trade control measures, and govern in any case in which there may be a conflict regarding tobacco products.

ASH COMMENT:  Some major tobacco exporting countries have used trade policies as techniques to force countries to relax barriers to the import of  tobacco products.  While the relaxation of unnecessary trade barriers may be appropriate with regard to most other products, tobacco is unique, and the mechanisms for challenging trade barriers generally are inappropriate here.  Thus the specific Convention regarding tobacco products should take precedence over any general Conventions or other agreements regarding trade.

ALTERNATIVE  D 5. ALTHOUGH Tobacco-control measures should not constitute a means of arbitrary or unjustifiable discrimination in international trade, GREATER LEEWAY IN THE REGULATION OF TOBACCO PRODUCTS MUST BE PERMITTING IN VIEW OF THEIR UNIQUE NATURE, AND SUCH MEASURES SHALL BE PREEMPTIVELY VALID UNLESS SHOWN TO BE ARBITRARY OR UNJUSTIFIABLE.

ASH COMMENT: Because tobacco is the only trade product which both addicts and ultimately kills a substantial portion of its users, and imposes huge health care and other costs on both governments and private businesses, its regulation should generally take precedence over ordinary international trade concerns.  As originally worded, the text might be read to require states to prove that any tobacco control measure is not "arbitrary or unjustifiable."  This wording would require anyone challenging a measure to show that it is arbitrary or unjustifiable.
 
 

D 6. The tobacco industry should be held responsible for the harm its products cause AND HAVE ALREADY CAUSED to public health and the environment, with each Party determining the scope of such responsibility within its jurisdiction.
Chair's note: As announced during the first session of the Intergovernmental Negotiating Body, WHO is convening a panel of legal experts to make recommendations to the Negotiating Body on the nature and scope of potential liability and compensation provisions.

ASH COMMENT:  As originally worded, this section could suggest that the legal liability would be prospective only, and would not include harm already caused.  ASH's proposal clarifies the original intent.

E 3. The Parties shall undertake to adopt legislative, executive and administrative measures {to regulate and} to prohibit the export of tobacco products that do not conform to the exporting country's own domestic standards.

ASH COMMENT: It borders on the immoral for exporting countries to permit its tobacco industry to prey upon other countries and their citizens by exporting tobacco products which they cannot legally sell to their own citizens.  The use of the words "to regulate and" seems to permit exporting countries not to prohibit the export of such tobacco products, but rather simply to "regulate" such exports; i.e., to continue to export them.

E 6. The provisions of the Convention shall in no way affect the right of Parties to adopt domestic measures in addition to those referred to above, nor shall they affect measures already taken by a Party, provided that such measures are {compatible} NOT CLEARLY INCOMPATIBLE (E.G., LESS STRICT OR LESS COMPREHENSIVE)  with its obligations under this Convention and the protocols to which it is a party.

ASH COMMENT: As originally worded, this could be read to require a Party to show that such measures were "compatible," rather than requiring a challenger to show that such measures were clearly incompatible because they offer less protection than required by the Convention.  In other words, under the original language, opponents could argue that measures were not "compatible" if they were much stricter or much more comprehensive than those in the Convention.  With this change, it is clearer that such measures are compatible, and that only those which are less strict or less comprehensive are subject to challenge.

E 7. The provisions of the Convention shall in no way affect the right of Parties to enter into bilateral or multilateral agreements, including regional or subregional agreements, on issues relevant or additional to this Convention, provided that such agreements are {compatible} NOT CLEARLY INCOMPATIBLE (E.G., LESS STRICT OR LESS COMPREHENSIVE) therewith. Copies of such agreements shall be communicated to the secretariat of the Convention by the Parties concerned.

ASH COMMENT:  This change is recommended for the same reasons as for 6. above.

F 2 (b) imposition of taxes on tobacco products so as to achieve a stable and continuous reduction in tobacco consumption AND NO LESS THAN AN AMOUNT REASONABLY NECESSARY TO COMPENSATE THE GOVERNMENT AND ITS TAXPAYERS FOR THE COSTS ASSOCIATED WITH  THE USE OF TOBACCO PRODUCTS;

ASH COMMENT:  Taxes may be set high enough to produce some small reduction in tobacco consumption, yet so low that taxpayers are still forced to bear most of the health and other costs of smoking.  This unfairly forces nonsmokers to subsidize both the tobacco industry and those who choose to smoke.  Adoption of this change will protect the majority of citizens who choose not to smoke from being forced to subsidize  those who do, and also provide a rational justification for taxing tobacco products, and a standard for setting such taxes.

F 2 (c) requiring that, to the extent possible, smokers rather than nonsmokers bear the costs of their smoking by paying appropriately higher health insurance, life insurance, homeowner insurance, and motor vehicle operator's insurance premiums or additional fees where the protections are already provided by the government.

{(c)} (d)  adoption of other price and tax measures that may be recommended by the Conference of the Parties.

ASH COMMENT:  Differential insurance premiums and similar fees have been found to be an effective way to remind and encourage smokers to quit and nonsmokers not to start.  In addition, if smokers are not required to pay more for various forms of insurance, or to pay additional fees if  health care is already provided, nonsmokers are unfairly forced to subsidize the tobacco industry and those who choose to smoke.

G 1 (a) implementation of legislation and other effective measures at the appropriate governmental level that provide for systematic protection from exposure to tobacco smoke in indoor workplaces, enclosed public places, {and} public transport, AND OUTDOOR AREAS WHERE PEOPLE CONGREGATE, with particular attention to special risk groups {such as} INCLUDING BUT NOT LIMITED TO children, THE ELDERLY, THOSE WITH CONDITIONS MAKING THEM ESPECIALLY SUSCEPTIBLE,  and pregnant women;

ASH COMMENT: Persons listening to outdoor concerts, standing on lines, using beaches or public parks, etc. are often seriously affected by tobacco smoke, and jurisdictions are recognizing this by limiting smoking accordingly.  This document should recognize and encourage -- and not seemingly foreclose or even discourage -- this development.

ASH COMMENT:  The elderly, and those with conditions like asthma, hay fever, sinusitis, etc. are at special risk at least as much as pregnant women, and therefore deserve protection.  This proposed wording also makes it clear that the class of those at special risk is not limited to the few groups specifically enumerated.

G 1 (c) implementation and taking of necessary steps to enforce measures for tobacco-product disclosures by all manufacturers, including all ingredients and additives, and major constituents of tobacco smoke, and promotion of availability of such information to the public BUT IN SUCH A WAY AS TO INSURE THAT NO COMPARATIVE OR OTHER HEALTH CLAIMS ARE MADE OR IMPLIED DIRECTLY OR INDIRECTLY.  Each Party shall apply these measures to all tobacco products manufactured or sold under its jurisdiction;

ASH COMMENT:  Many studies have shown that current machine-made measurements of tar and nicotine do not adequately reflect what a smoker is really inhaling; that many smokers incorrectly perceive lower tar and nicotine ratings as implied claims related to relative health risk; and that switching to low(er) tar and nicotine cigarettes usually does not lower health risk and may even increase it.  Therefore every effort should be make to prevent such deadly misunderstandings and misinterpretations.

G 1 (d) (ii) tobacco packaging and labelling does not otherwise promote a tobacco product by any means that are false, misleading {or} , deceptive OR UNFAIR -- INCLUDING ANY USE OF CARTOON CHARACTERS -- or that are likely to create an erroneous impression about its characteristics, health effects, hazards or emissions;

ASH COMMENT:  Many tactics used by the tobacco industry to promote its product towards susceptible groups like children may be seen as unfair even if they are not technically "false, misleading, or deceptive" (a relatively narrow category) and therefore should be prohibited.  These might include the  use of cartoon characters -- which has proven to be so effective and therefore should be specifically prohibited -- as well as the use of religious or national symbols, coupons for products of particular interest to children, etc.

G 1 (e) facilitation and strengthening of education, training, and public awareness campaigns, including counter-advertising FINANCED AS NECESSARY BY THE TOBACCO INDUSTRY, AND AT A LEVEL NO LESS THAN ONE PERCENT OF THAT SPENT TO PROMOTE TOBACCO PRODUCTS IN EACH COUNTRY. To this end, each Party shall, as appropriate:

ASH COMMENT:  To have any chance of being effective against the overwhelming barrage of  advertising and other promotion by the tobacco industry, the level of antismoking educational efforts should be no less than some reasonable percentage of that spent promoting the opposing point of view; certainly no less -- and perhaps far more -- than 1%.  Since many countries cannot afford such expenditures, requiring industry to bear the cost -- as the U.S. did, first through "fairness doctrine" counter-advertising, and then through its multi-state tobacco settlement -- has proven to be effective.

G 1 (e) (vi) endeavour to promote the participation of public agencies and nongovernmental organizations in the development of strategies for tobacco control, WHILE PROHIBITING ANY PARTICIPATION OF ANY ENTITY DIRECTLY OR INDIRECTLY RELATED TO, COOPERATING WITH, OR BENEFITING FROM THE TOBACCO INDUSTRY FROM PARTICIPATING;

ASH COMMENT: The tobacco industry has no more business participating in developing tobacco control strategies than a cocaine cartel would in developing strategies to control cocaine.  Moreover, the tobacco industry has proven itself very adept in sabotaging, weakening, misdirecting, and delaying tobacco control efforts, both directly and by using other groups which it helps finance or otherwise cooperates with.  Permitting the tobacco industry or even those representing its interests to attend meeting would seriously undermine the confidence of the public in the effectiveness if not the seriousness of the Convention and the parties to the Convention.

G 1 (e) (VII) ENSURE THAT PHYSICIANS AND OTHER HEALTH PROVIDERS INCLUDE WARNINGS AND INFORMATION ABOUT SMOKING, SMOKING CESSATION, AND THE DANGERS OF PASSIVE SMOKING WHENEVER APPROPRIATE WHEN TREATING OR COUNSELING PATIENTS, ESPECIALLY SMOKERS, PREGNANT WOMEN, AND PARENTS OF CHILDREN.

ASH COMMENT: Because warnings about smoking from physicians and health professions have proven to be far more effective and persuasive than ordinary public education campaign, and should be provided by physicians at no added costs as part of their normal health care service, Parties should be required to ensure that physicians honor their professional obligation to provide patients with all relevant health-related information.

G 2 (a) prohibiting all forms of direct and indirect tobacco advertising, promotion and sponsorship {targeted at} HAVING A SIGNIFICANT AND DISPROPORTIONATE IMPACT on persons under the age of 18;

ASH COMMENT:  Any rule based upon "targeting"  would be ineffectual because of the virtual impossibility of  proving a subjective element: a specific intent to target children.  It is both more effective and fairer to use -- as an objective standard -- any advertising which has both a significant and disproportionate impact on underage children (e.g., in a widely-read magazine which has a percentage of underage readership more than twice as high as the national average for all magazines).

G  2 (b) PROHIBITING, OR, AT THE VERY LEAST, imposing strict restrictions on all PERMITTED forms of direct and indirect tobacco advertising, promotion and sponsorship {targeted at persons 18 years of age and older}, including incentives such as gifts, coupons, rebates, competitions and frequent-purchaser programmes, AND ANY USE OF THE TERMS "LOW TAR," "LIGHT," "ULTRA LIGHT," "MILD," OR ANY SIMILAR TERM THAT HAS THE AIM OR THE DIRECT OR INDIRECT EFFECT OF CONVEYING THE IMPRESSION THAT A PARTICULAR TOBACCO PRODUCT IS LESS HARMFUL THAN OTHERS, with the aim of reducing the appeal of tobacco products to all segments of society;

ASH COMMENT:  Parties should be encouraged to prohibit all advertising for tobacco products, as a number of countries have already done, and to "at the very least" strictly regulate all that is permitted.  Since it is so difficult to prove where advertising is "targeted," it is simpler and clearer to simply eliminate any qualifying phrase relating to targeting.  Moreover, since similar language limiting the use of "low tar" type phrases are restricted in the previous section relating to packaging and labelling, it is even more important to adopt similar restrictions with regard to advertising.

G 2 (d) adopting national measures and imposing appropriate regulatory restrictions to ensure that tobacco advertising, promotion and sponsorship does not promote a tobacco product by any means that are false, misleading {or} , deceptive OR UNFAIR -- INCLUDING ANY USE OF CARTOON CHARACTERS -- or that are likely to create an erroneous impression about its characteristics, health effects, hazards or emissions;

ASH COMMENT:  Many tactics used by the tobacco industry to promote its product towards susceptible groups like children may be seen as unfair even if they are not technically "false, misleading, or deceptive" (a relatively narrow category) and therefore should be prohibited.  These might include the  use of cartoon characters -- which has proven to be so effective and therefore should be specifically prohibited -- as well as the use of religious or national symbols, coupons for products of particular interest to children, etc.

G 2 (e) adopting measures and imposing appropriate regulatory restrictions in order progressively to phase out tobacco sponsorship of sporting and cultural events BY NO LATER THAN THE YEAR 2005;

ASH COMMENT:  Any agreement to "phase out" should, to be truly effective, have a specific target date.

G 2 (f) adopting national measures and cooperating in order to phase out cross-border advertising, promotion and sponsorship, including, inter alia, tobacco advertising, promotion and sponsorship on cable and satellite television, the Internet, newspapers, magazines and other printed media BY NO LATER THAN THE YEAR 2005; AND ANY SALES OF TOBACCO PRODUCTS USING THE INTERNET.

ASH COMMENT: Because the Internet can have such a powerful impact on young people, and because sales of tobacco products using the Internet can circumvent and therefore seriously undermine efforts by parties to regulate sales within their borders, the sale of tobacco products using the Internet should be prohibited.  Any agreement to "phase out" should, to be truly effective, have a specific target date.

H 2 (d) ENSURING THAT TOBACCO DEPENDENCE IS TREATED ON A PAR WITH ALL OTHER FORMS OF DRUG DEPENDENCE IN ANY INSURANCE, COMPENSATION,  OR TREATMENT PROGRAM RELATED TO ILLICIT DRUGS OR ALCOHOL DEPENDENCE.

ASH COMMENT: Now that nicotine has been proven to be as addictive as alcohol and many illicit drugs, it should be covered on a par in any established or to-be-established governmental or private programs for paying for or treating these other forms of drug dependence.  This will  help to provide needed funds for such treatment, and also help to remind and educate the public that smoking is no less addictive than alcohol, crack, or heroin.

I 8 (a) require that all sellers of tobacco products {request} REQUIRE that each tobacco purchaser provide appropriate evidence of having reached the age of 18.

ASH COMMENT:  Merely "requesting" identification does little if anything to deter illegal sales, since, as this section is now worded, customers are under no obligation to actually produce such evidence.  "Requiring" rather than simply "requesting" that such evidence be provided is a minimum step, and one already used in many countries to control the sale of both tobacco products and alcoholic beverages to children.

I 8 (b) IMMEDIATELY prohibit tobacco vending-machines in locations accessible to any person under the age of 18, AND PHASE OUT ANY USE OF TOBACCO VENDING-MACHINES BY THE YEAR 2005.

ASH COMMENT: Studies have repeatedly shown that attempts to prohibit vending machines only in locations accessible to children don't work because children are very resourceful, and because monitoring and ensuring compliance is difficult and expensive.  Therefore the use of such machines should be phased out by a date certain; the imposition on adults of having to walk a short distance to purchase this type of drug from a person rather than a machine is no greater than the burden on adults to walk a short distance to purchase other dangerous drugs from drugstores, or alcoholic beverages.

I 11. Each Party shall implement appropriate legal and other measures to verify compliance with paragraphs 8 to 10 above. Such measures shall include appropriate penalties against sellers and distributors {for the violation} -- INCLUDING FINES OF INCREASING SEVERITY AND/OR LOSS OF LICENSES -- FOR ALL VIOLATIONS of measures prohibiting sales of tobacco products to persons under the age of 18.

ASH COMMENT: Providing only small fines for violations simply becomes a "cost of doing business" for many sellers who find it more profitable to pay the fines and continue illegal sales to children.  Therefore a requirement of escalating fines, and possible loss of licenses to sell cigarettes, seem appropriate.

I 12. Each Party shall take appropriate legal and other measures to ensure that no criminal penalties are imposed against persons under the age of 18 for buying {and}, selling , OR POSSESSING tobacco products, ALTHOUGH SUCH PERSONS UNDER 18 MAY SUFFER CIVIL PENALTIES SUCH AS A FINE OR A SUSPENSION OF A DRIVER'S LICENSE, AND/OR BE FORCED TO ATTEND PROGRAMS RELATED TO TOBACCO.

ASH COMMENT:  This simply clarifies to intent of the section so as not to preclude Parties from experimenting with programs under which teen smokers are required to pay fines, face suspension of driver's licenses, and/or are required to attend educational programs related to tobacco -- some of which have proven to be successful. Parties should be permitted -- and perhaps even encouraged -- to experiment with programs in which possession of tobacco products by children can be sanctioned so that older children no longer set a bad example for younger children by publicly smoking, etc.

M [5. The United Nations, specialized agencies of the United Nations, regional economic integration organizations not parties to the convention, nongovernmental organizations qualified in matters covered by the convention, as well as any State not party to this Convention, may be represented by observers at meetings of the Conference of the Parties, subject to the relevant Rules of Procedure and decisions of the Conference of the Parties]; HOWEVER ANY ENTITY DIRECTLY OR INDIRECTLY RELATED TO, COOPERATING WITH, OR BENEFITING FROM THE TOBACCO INDUSTRY SHALL ENJOY NO SUCH PRIVILEGES.

ASH COMMENT: The tobacco industry has no more business attending meetings related to tobacco control than a drug cartel would in attending meetings aimed at controlling cocaine.  Moreover, the tobacco industry has proven itself very adept in sabotaging, weakening, misdirecting, and delaying tobacco control efforts, both directly and by using other groups which it help finance or otherwise cooperates with.  Permitting the tobacco industry or even those representing its interests to attend meeting would seriously undermine the confidence of the public in the effectiveness if not the seriousness of the efforts being discussed.

Q [4. The Parties recognize that developed-country Parties that export manufactured tobacco products, or have branches of international tobacco companies exporting tobacco products from third countries, have a special responsibility to provide technical support to developing-country Parties to strengthen their national tobacco control programmes.] AND AGREE THAT SUCH EXPORTING COUNTRIES SHALL, IF NECESSARY, IMPOSE THE REASONABLE COSTS OF PROVIDING SUCH SUPPORT ON TOBACCO COMPANIES OVER WHICH THEY HAVE JURISDICTION.

ASH COMMENT: Simply recognizing a "special responsibility" in the abstract has little effect.  Since providing sufficient "technical support" for the developing-country Parties to reasonably accomplish the objectives of this document is likely to be quite expensive, it seems appropriate that those costs should be borne by the tobacco industry on a "user fee" basis rather than being imposed on taxpayers.  Moreover, providing for such a funding mechanism makes implementation of this section far more likely.