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THE US AT THE THIRD INTER NEGOTIATING MEETING OF THE FRAMEWORK CONVENTION ON TOBACCO CONTROL

Status of the Negotiations: Nations Struggle to Narrow Differences During the first four days of negotiations (Nov. 22-25), nations have undertaken an almost line-by-line review of the proposed text of the Convention in an effort to determine which issues can be quickly brought to consensus and which issues will require further debate and negotiation. Delegates are working from a convoluted text with multiple textual options on each issue that were proposed by nations at previous negotiations. The goal of this round of negotiations is to narrow the range of textual options under consideration and set the stage to address the most difficult issues at the two rounds of negotiations scheduled for next year. The World Health Organization has set a goal of completing the Convention by early 2003.

Protection of the Non Smoker and Clean Indoor Air - The U.S. delegation proposed prohibiting smoking in "enclosed public places, public transport and indoor premises of government agencies." However, in place of a complete workplace ban, the U.S. called for "the promotion of systemic protection from exposure to tobacco smoke in restaurants and indoor private workplaces." U.S. advocates expressed concern that there is no scientific basis for the U.S. position and that it would establish a two-tiered system of protection from secondhand smoke that would aid efforts by the tobacco industry and its allies to fight enactment of clean indoor air measures across the globe.

Smuggling - Simultaneous with the main Convention negotiations, the U.S. has proposed negotiating a separate protocol - a more detailed addendum to the Convention - to address cigarette smuggling. Advocates believe a protocol on smuggling can be productive if it leads nations to make specific commitments and take action more quickly to combat smuggling. However, they expressed concern that the U.S. position paper on smuggling needed more detail.

Price and Tax Measures - While stating that "the United States recognizes that price and tax increases are effective measures for reducing tobacco consumption," the U.S. delegation has opposed provisions calling on nations to increase tobacco taxes and banning tax-free and duty-free sales of tobacco products. The U.S. expressed constitutional and federalism (states' rights) concerns in opposing the tax provision and possible conflicts with other international agreements in opposing the duty-free sale provision.

Trade vs. Public Health - One of the key issues of the negotiations is how the Convention will treat conflicts that arise between public health measures and trade agreements. The majority of nations have spoken out for provisions that would give priority to public health protection when tobacco-control measures are examined for compatibility with other international agreements. In contrast, the U.S. has proposed the following language: "The parties agree that tobacco control measures shall be transparent, non-discriminatory and implemented in accordance with their international obligations." At the end of the trade debate, the chair of the negotiating session pointedly noted that the large majority of nations favored giving public health measures priority over other international agreements and stated that nations agreed to this principle for the first time at the recent World Trade Organization meeting in Doha, Qatar. In Doha, nations agreed that developing nations' access to affordable AIDS drugs took priority over trade provisions.

Tobacco Product Regulation - The U.S. supported a provision calling for "cooperation under the auspices of the World Health Organization in the development of general model standards or procedures for the regulation of the contents of tobacco products; and the establishment of domestic regulatory agencies that are science- and health-based and have enforcement authority."

Ingredient Disclosure - While noting that current U.S. law requires only general ingredient disclosure, the U.S. stated it could support a call for broader disclosure as part of the FCTC. The U.S. position called for measures to require "the disclosure by all manufacturers of all ingredients and additives and major constituents of tobacco smoke to relevant government authorities" and "clear and meaningful information about toxic ingredients and constituents of tobacco smoke to the public."

"Light" and "Low-tar" - The U.S. delegation opposed a provision calling for a ban on "the terms 'low tar', 'light', 'ultra light', 'mild' or any other 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." Instead, the U.S. proposed allowing each country to regulate the use of such terms to prevent deception.

Health Warnings - While calling for "a requirement for clear, conspicuous and prominent health warnings," the U.S. argued that each country should have the flexibility to develop warnings appropriate for its target audiences.

Advertising Ban - The U.S. has opposed a total ban on tobacco advertising that is supported by many countries, arguing that such a ban poses First Amendment constitutional concerns in the United States. Public health advocates have proposed alternative language calling for a total ban where possible and the maximum possible restrictions in nations with constitutional concerns. It is worth noting as well that most of the developing world is calling for a full ban on tobacco advertising.

U.S. Proposes Early Protocols on Smuggling, Advertising
The U.S. delegation Thursday proposed that delegates negotiate separate protocols - more detailed provisions than will be included in the FCTC itself - on smuggling and advertising. "We see selected protocols negotiated simultaneously with the FCTC as the best way to make progress toward a final agreement by the end of 2003," the U.S. stated. However, several countries expressed concern that simultaneous negotiation of the Convention and the protocols risks weakening and delaying the Convention itself. Advocates believe a protocol on smuggling can be productive if it leads nations to make specific commitments and take action more quickly on key issues. However, they expressed concern that the U.S. position paper on smuggling was weak and lacked detail. While calling on "each party to take all practical and effective measures to combat smuggling of tobacco products," the U.S. position paper did not call for steps urged by advocates, such as a ban on duty free sales, a system for tracking and tracing tobacco products and labeling of the destination market at the point of manufacture. On advertising, the U.S. noted the split between countries that support a total ban on tobacco advertising and those who have constitutional barriers to such bans, but did not propose a solution. Advocates expressed concern that a separate protocol on advertising is not needed, and may in fact be diversionary, as a total ban on advertising should be written into the Convention itself.

Who's On the U.S. Delegation
The U.S. delegation to the FCTC has been changed substantially since the last negotiations. The new Chief Delegate is Dr. Kenneth W. Bernard, Assistant Surgeon General, Office of the Secretary, Department of Health and Human Services. He replaces Dr. Thomas Novotny, who headed the delegation at the first two negotiations. Other U.S. delegation members as listed in the Provisional List of Participants are:
Ms. A.S. Gash, Director for Multilateral Trade and Environment Policy, Office of the United States Trade Representative.
Ms. R. Henson, Director, Office on Smoking and Health, Centers for Disease Control and Prevention
Mr. D.E. Hohman, Health Attaché, Permanent Mission, Geneva
Ms. M.C. Jones, Director, Office of Technical Specialized Agencies, Bureau of International Organization Affairs, Department of State
Mr. J.R. Lom, Attorney, Bureau of Alcohol, Tobacco and Firearms
Ms. E.D. O'Pharrow, Special Agent and Program Manager, Bureau of Alcohol, Tobacco and Firearms
Mr. T.F. Pechacek, Associate Director for Science, Office on Smoking or Health, Centers for Disease Control and Prevention
Mr. J.B. Sandage, Attorney-Adviser, Office of the Legal Adviser, Department of State
Mr. W.R. Steiger, Special Assistant to the Secretary for International Affairs, Department of Health and Human Services
Mr. G. Young, Office of the Department of Agriculture, Office of the United States Trade Representative
Dr. J.M. Sharfstein, Committee on Government Reform, House of Representatives (Congressional observer)
Ms. J.B. Epstein, Private Sector Adviser to the Director, Office of International and Refugee Health, Department of Health and Human Services