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Action on Smoking and Health
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| Urge the US to Ratify the FCTC Why the Problem is So Important Current Proposed Text of Treaty Upcoming Events |
Before the U.S. Delegation to the FCTC, San Francisco, CA [03/08/01] On the Chair's Text of the Framework Convention on Tobacco Control My name is Laurent Huber, and I am the International Projects Coordinator for Action on Smoking and Health -- sometimes known as ASH -- our nation's oldest and largest antismoking organization. It's the organization which got antismoking messages on radio and television; drove cigarette commercials from the air waves; started the nonsmokers' rights revolution by first getting smoking restricted and then banned on airplanes, buses, and in a growing number of private offices and public places; developed the concept of the sensitive nonsmoker as a "handicapped person" entitled to "reasonable accommodation" under the ADA; first began persuading health insurance companies to charge nonsmokers less than smokers; and more recently helped get health warnings on cigars. ASH is a unique antismoking organization because, serving as the legal action arm of the antismoking community, it relies principally on legal action rather than on conventional education to accomplish its goals. Its staff is primarily legal, and it has more than thirty years of experience dealing with the tobacco industry, primarily from a legal perspective. This includes finding literally hundreds of legal loopholes in documents like the multi-state settlement agreement, court-ordered settlements, proposed legislation, federal regulations, etc.; problems which can often be overlooked even by skilled attorneys -- much less by laymen -- who do not have many years of experience dealing with the tobacco industry and its uncanny ability to create and to exploit any possible drafting problems. This is very important, because the Framework Convention on Tobacco Control is a legal document which must be very carefully drafted if we are to be sure that its terms will be truly effective, and that there will be few if any legal loopholes the tobacco industry and its allies can rely upon to impede or delay its implementation. For this reason ASH's legal staff has very carefully examined the Chair's proposed text, and has made more than two dozen very specific proposals [each identified by a number below] to change the language. Some simply clarify the drafters' apparent intent, e.g.: * to ensure that the tobacco industry will be held liable for past harms as well as those in the future {03}; * that sellers must "require" and not simply "request" that purchasers provide proof of age {21}, etc. Others remove troublesome if not unworkable terminology, e.g.: * removing the virtually impossible requirement which would mandate a showing that advertising is "targeted at" children, and replacing it with a simpler and clearer objective (rather than subjective) test {15}; * avoiding a requirement that stronger and more effective domestic measures and/or bi-lateral agreements must be shown to be "compatible," and replacing it with a clearer standard {04}{05}; * eliminating the clearly incorrect suggestion that there is some "adequate" level of exposure to tobacco smoke {01}. Some proposals add elements and ideas the drafters may not have been aware of, e.g.: * restricting smoking outdoors in areas where people congregate {09}; * using the threat of revocation of a driver's license to deter teens from smoking {23}; * requiring health professionals to tell patients about the dangers of smoking as part of their professional obligations {14}; * treating nicotine addiction on a par with other forms of drug dependence in governmental and private drug education and cessation programs {20}. A few proposals try to turn what might otherwise be platitudes into realistic and specific requirements, e.g.: * requiring target dates for the phasing out of tobacco sponsorships {18} and cross-border advertising {19}; * augmenting the "special responsibility" of exporting countries by providing a mechanism to fund the technical support they are required to provide to developing countries {26}. Finally, two proposals are related, quite frankly, at preserving the integrity and public image of the FCTC, e.g.: * prohibiting participation by tobacco industry and those who help represent its interests in its proceedings {13}; * also prohibiting them from being officially represented at its meetings {25}. Attached you will find a summary of each of the twenty-six specific proposals. In a separate document we set out each of the proposals -- with suggested changes in the text shown in red, and with an accompanying comment and very brief explanation in blue. We sincerely hope and respectfully suggest that each one be given very careful consideration in the hopes that this body will avoid the same kinds of critical mistakes which so often have been made in the past concerning the drafting of documents related to tobacco control. With all due respect, these types of mistakes can be made all too easily by persons who lack both the legal background AND the very extensive experience dealing with the tobacco industry which ASH and its attorneys have. That's why ASH looks forward to discussing these proposals individually and in more detail, and hope that you will all feel free to call upon us at any time if we can be of any further assistance. SUMMARY OF PROPOSALS 01 - helps to ensure adequate protection for nonsmokers by clarifying that there is no level of exposure to tobacco smoke which provides "adequate" protection 02 - clarifies relationship between FCTC and other trade agreements by providing that more specific FCTC should control with regard to tobacco products 03 - clarifies liability section to ensure that tobacco industry will be held liable for past harm as well as that which will occur in the future 04 - strengthens export provision by requiring exporting countries to provide the same protection to other countries as it applies to its own citizens 05 - clarifies preemption provision to provide that other domestic measures will be incompatible only if they are less strict or less comprehensive 06 - clarifies preemption provision to provide that other bi- or multi-lateral agreements will be incompatible only if less strict or less comprehensive 07 - provides a rationale for taxing tobacco products, and a more realistic and effective basis for setting the rates (to cover costs imposed on society) 08 - a new proposal to discourage smoking and protect nonsmokers by shifting more of the costs of tobacco use to smokers through insurance 09 - clarifies restrictions on smoking to recognize growing trend to limit outdoor smoking, and need to protect those at risk because of age or medical conditions 10 - helps to ensure that information about tobacco products is not misused to create the inference that some cigarettes are safer than others 11 - strengthens the proposal about false labeling, and adds specific prohibition on the use of cartoon characters 12 - helps to ensure effectiveness of public education proposal by providing basis and minimum level of funding 13 - preserves integrity and public image of FCTC by prohibiting participation by tobacco industry and those who help represent its interests 14 - strengths educational proposals by requiring health professions to provide information about smoking as part of their professional obligations 15 - clarifies advertising "targeted at" children by providing clearer and more precise language so as to make provision enforceable 16 - encourages -- without requiring -- a ban on tobacco advertising, and adds specific provisions regard "low tar" and "light" type claims 17 - strengthens proposal about false advertising, and adds specific prohibition on the use of cartoon characters 18 - strengthens and makes meaningful a proposal to phase out sponsorship of sporting and cultural events by providing a target date 19 - strengthens and makes meaningful a proposal to phase out cross-border advertising, promotion, and sponsorship by providing a target date 20 - new proposal to ensure that tobacco dependence is treated on a par with other forms of drug dependence including alcoholism 21 - clarifies proof-of-age proposals by ensuring that such proof must be "required" rather than simply "requested" 22 - makes vending machine proposal more effective by requiring phasing out of all tobacco vending machines 23 - strengthens restrictions on sale-to-children provision by calling for fines of increasing severity and possible loss of licenses 24 - clarifies provision prohibiting criminal penalties for children purchasing tobacco by permitting civil remedies including fines, license loss, classes, etc. 25 - preserves integrity and public image of FCTC by denying representation by the tobacco industry and those who help represent its interests at meetings 26 - augments "special responsibility" of exporting countries by providing
a mechanism to fund the technical support to developing-country Parties
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