Action on Smoking and Health
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The last round of negotiations took take place in Geneva between 14-25 October, 2002.

The New Chair's text of a framework convention on tobacco control was be the document used as the basis for negotiations.

The FCTC has made more progress than we had initially expected and NGOs like ASH were able to have a much greater deal of influence than we had anticipated. When the process began, we had expected that the tobacco industry was going to control governments and efficiently weaken the treaty process. However this has not been the case. Though the tobacco industry has attempted to undermine NGOs, the World Health Organization and the treaty itself, the majority of countries have been more responsive to public health advocates like ASH than the tobacco industry. Unfortunately, a small number of powerful countries that are the home of cigarettes producers are acting as the champions of the tobacco industry during the negotiations.

· During the opening day of INB5 (The Fifth Inter Negotiating Body), the WHO director-general Gro Harlem Brundtland stepped up her appeals for tough measures including big tax increases, strict legislation against second-hand smoke, and a total advertising ban to prevent youth being targeted. "4 years ago we dared to dream", she said. "Together, we decided to walk down the uncharted path of writing global rules and regulations for the promotion, production, and sale of a product that kills half of its regular users." She conceded that the emerging treaty fell short of her dreams, but said it was a "good starting point".

· At this point, a super majority of countries, particularly the South East Asian and African nations, support a strong convention with teeth that would have the potential to halt this public health disaster and only a minority of countries is stopping the progress of the treaty.

· A few key states are obstructing progress by angling for a weaker treaty. These states that host the major tobacco trans-nationals include the U.S., Pakistan, Japan and Germany - all home to tobacco companies - have been criticized for playing obstructionist roles in the treaty process.

· The US, Japan and Germany were the most outspoken in favor of the tobacco industry and against public health.

· Japan, whose government is the majority shareholder in the world´s third largest tobacco transnational, has been very overt in its opposition and seems to doubt whether the reduction of tobacco consumption is a legitimate public policy objective.

· Earlier in the negotiations, the European Union failed to argue for sufficiently comprehensive measures. Germany, Europe´s largest tobacco manufacturer, is mainly responsible for the negative European Union position. The negotiating stance of the European Union is based both on its current tobacco legislation and on a shared position agreed between all 15 member states in areas that the legislation does not cover. Existing legislation is weak, largely because successive German governments have obstructed the passage of effective legislation and, alongside their industry allies, challenged the legality of existing laws in the European courts. However, Europe has the potential to become a broker in some contentious issues, especially if the majority of European countries break away from Germany. For example, during the last round of negotiations, Ireland spoke for 24 countries, including the United Kingdom, Belgium, Finland, Sweden, and France, in support of the inclusion in the treaty of a provision banning all direct and indirect tobacco advertising, reserving to those countries with constitutional limitations the right to enact lesser restrictions. This demonstrates that it is possible for the majority of European countries to oppose Germany's negative attitude.

The US Position

· The Bush administration has been criticized of being tobacco friendly by NGOs and delegates. The United States delegation negotiating the proposed tobacco treaty continued to take positions that protect the interests of the tobacco industry rather than public health around the world. The US government is unwilling to accept most strong provisions and want to water the treaty down. The US has taken the tobacco industry´s side and is going against most of the rest of the countries, where there is an incredibly strong shift toward a public-health approach.

· The U.S. has been criticized by some countries for their lack of support of international treaties and have pointed out that not only is the U.S. hindering the process, if history repeats itself, it will not sign the treaty after all is said and done. Since the United States' has historically demonstrated lack of support of international treaties. (The US did not ratify the Comprehensive Test Ban Treaty, although President Clinton signed it; it did not become a party to the International Covenant on Economic, Social and Cultural Rights; it did not join the Convention on the Elimination of all Forms of Discrimination against Women; it did not ratify the Convention on the Rights of the Child; it still has not signed or ratified many core conventions of the International Labor Organization (ILO); it withdrew, unilaterally, from the ABM treaty; it did not join the Ottawa Convention banning land mines; it did not sign the agreement creating the International Criminal Court; and it did not join the Kyoto Treaty on global warming.

· One of ASH board of directors who attended the negotiations stated of the US position: "It is obvious that the US at most wants a declaration of principles and no interference in trade, no requirement for health warnings, no restriction (let alone a ban) on advertising, no infringement on sovereignty or "States Rights," no right to litigate, no secretariat to administer the treaty, no powers for the signatories to establish rules to enforce or even monitor the effectiveness of the treaty".

· As professor Banzhaf suggested another reason why we should not make the FCTC dependent on the signature of the US. There is little the FCTC (especially if tailored to the wishes of the US) would add to the fight against tobacco in the US. The anti-tobacco movement is well established in the US and it does not need the FCTC. On the other hand a strong FCTC can be an enormous boost to the anti-tobacco movement in developing countries, to help them counter the marketing power of the tobacco industry. The treaty has the potential to help people at local jurisdictions worldwide build pressure with local laws, just as what happened in California, where the growth of city ordinances led to the strong state law.

· However, the US may be one of the most important sources of funding after the FCTC is signed. For this reason it may not be possible to fully exclude the US from the negotiations.

Consensus:
· One of the major problems at this point is that the FCTC, under the leadership of the Chairman, is being negotiated and drafted through a consensus approach. Agreeing to a shared position inevitably produces the lowest common denominator, particularly when the most obstructive state is one of the most powerful. Despite overwhelming international support for a strong convention, a few key states could have a damaging impact on the final treaty and consequently on global health. Weaknesses in some sections of the convention´s current draft text already reflect their influence and willingness to advance arguments from the tobacco industry.

· For this reason ASH, along with a large number of countries and the NGO community, believes that the consensus approach should be dismissed and a democratic approach should be adopted. This would ensure that the treaty satisfies the needs and wishes of the majority that wants a strong treaty, rather than the wishes of only a small number of countries that are exporters of cigarettes.

Second Hand Smoke
· Although this issue has not caught on in Europe or most of the world like it has in the United States, we received support from several countries. To mention just a few, New Zealand, Australia, South Africa, Paraguay, Some Caribbean and the majority of African countries favored a strong ban on smoking in public spaces.

· The U.S. delegation has not taken a vocal position on second hand smoke during the last round of negotiations. During the past two negotiations, since the current Bush administration is in office, US negotiators have attempted to weaken the language.

· Governments decided to remove some of the weak language in the treaty that referred to second hand smoke. This change illustrates the influence NGOs like ASH can have on the treaty process. By educating and providing information to delegates we were able to have delegates champion our view points during the negotiations.

· Below is the provision concerning Second Hand Smoke, which reflects the change towards second hand smoke.
Each Party shall adopt and implement effective legislative, executive, administrative or other measures at the appropriate governmental levels, providing for protection from exposure to tobacco smoke in public places, public transport and indoor workplaces.

· Unfortunately, there are remaining weaknesses with the language. The remaining weakness with the language is that it does not demand a smoking ban but merely "protection from exposure to tobacco smoke in public places", this could allow for separate smoking areas or the use of ventilation systems. Separate ventilation has been shown not to provide protection. A ban is the only acceptable way to protect the population from second hand tobacco smoke. This must be stressed again during the next round of negotiations. For this reason it is important that ASH continues to include second hand smoke policies as part of lobbying materials.

Advertising
· The evidence is strong that the most effective way to eliminate the influence of tobacco marketing on young people is through comprehensive restrictions. This is important because most people start smoking when they are fairly young. However, to only ban ads targeted at youth does not work as a public health measure since ads targeted to adults tend to appeal to youth, especially when it comes to tobacco, which tobacco ads portray as a cool adult behavior. For this reason, the overwhelming majority of countries negotiating the treaty want a full ban on tobacco advertising. This feeling is especially strong in the developing world, but even among developing countries, an advertising ban is gaining support.

· Only a handful of countries oppose a total ban on advertisement of tobacco products (US, Germany, Japan and Canada). The argument presented by the countries that oppose a full ad ban is that their constitution would not allow them to impose a full ban. The countries opposing a total advertising ban are countries that have a constitution such as the US, Canada and Germany. They claim that freedom of speech issues would not enable them to implement a comprehensive ban. For this reason, the NGO community proposed the adoption of a "constitutional carve out" that would allow the FCTC to have a full ban on tobacco advertising, except for countries whose constitutions would not allow for a full ban. The US is vehemently opposed to this language, which has been adopted by the Chair. The US government is probably more scared of the impact of such language would have on advertising of tobacco products abroad. A ban on tobacco bans abroad could have a great impact on US Tobacco Trans-nationals.

· The US delegation took and obstructionist role and spoke out during the negotiations against a provision of the treaty that would allow a ban on the advertising of tobacco in nations whose constitutions allow one. The U.S. delegation said this provision in the treaty is a "red line," and they will not sign or accept any treaty with an ad ban provision, even if there are exemptions for countries with constitutional constraints. While there may be U.S. Constitutional issues involving tobacco advertising bans, the U.S. should not prevent other nations from adopting advertising bans in keeping with their own legal systems. The delegation should stop opposing the inclusion of language in the treaty calling for the elimination of tobacco advertising when this would have no practical effect on the United States.

By opposing a tobacco ad ban with a reservation for those countries with constitutional constraints, the U.S. has broken ranks with most of the Western world's democracies.

· Ireland spoke for 24 countries, including the United Kingdom, Belgium, Finland, Sweden, and France, in support of the inclusion in the treaty of a provision banning all direct and indirect tobacco advertising, reserving to those countries with constitutional limitations the right to enact lesser restrictions. The World Bank also intervened in the negotiations, saying a total ban is an essential component to reduce the harm of tobacco.

· The AFRO group, which includes 41 African nations, remains strong in their resolve to have a comprehensive ban of tobacco advertising. The AFRO group came to ASH's staff to obtain briefings on tobacco advertising and its implications.

Trade
· The overwhelming majority of nations negotiating the FCTC want a clause stating that tobacco-control measures should be immune from challenge in the World Trade Organization or the North American Free Trade Agreement. Health officials worldwide fear that their laws aimed at curbing the tobacco epidemic could be termed barriers to free trade. Unfortunately, they may be right. For example, Philip Morris and other tobacco firms have filed a lawsuit against Canada´s recent ban on the terms "light," "low tar" and "mild" -- terms that U.S. health officials call misleading yet are protected under WTO and NAFTA intellectual-property rules because they are part of the copyrighted brand names of products such as Benson & Hedges Lights.

· The overriding mission of the FCTC lies in keeping tobacco out of developing countries. The overriding interest of the US and other countries exporters of cigarettes is to keep those markets open. For this reason, ASH believes that it is important that the FCTC has priority over trade agreements. Typical trade rules that apply to wheat or electronic equipment can not be applied to a lethal product like tobacco which kills half of its long term users.