Chairman's text

D. Guiding principles5. Tobacco control measures should not constitute a means of arbitrary or unjustifiable discrimination in international trade

Text Proposed by the United States of America:

The US Delegation was the only delegation that supported this provision, unequivocally giving priority to trade over public health. This provision would greatly undermine the FCTC.

Why this is significant

The US Delegation was the only delegation that supported this provision, unequivocally giving priority to trade over public health. This provision would greatly undermine the FCTC.As written, the Chairman's text gives precedence to trade agreements over the FCTC. 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. Trade agreements concentrate on the promotion and expansion of trade for covered products. In the past, interpretation of treaties has been in favor of trade promotion rather than public health. 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. 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. In addition, during the negotiations, no less than 78 countries went on record unequivocally favoring giving priority in international law to stronger tobacco control measures over liberalized tobacco trade. Countries that supported stronger tobacco control measures included 45 African countries, 10 countries of South-East Asia, 15 European Union countries, China, Jamaica, Latvia, Norway, Oman, Pakistan, Saudi Arabia and Uruguay. Only three countries that spoke failed to give unqualified support for giving priority to tobacco control. Of these three, only the United States was unequivocally opposed to giving higher priority to public health.

Chairman's text

Each Party shall, to the extent possible within the means at its disposal and its capabilities, adopt legislative, executive and administrative measures, and cooperate with other Parties in harmonizing appropriate tax policies, in order to reduce tobacco consumption and exposure to tobacco smoke. Such measures and policies shall include the following:(passive smoking)(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, with particular attention to special risk groups such as children and pregnant women;

Text proposed by the United States of America:

Each Party should, taking into account the means at its disposal and its capabilities, adopt legislative, executive and administrative measures, and cooperate with other Parties in developing appropriate non-price policies, in order to reduce tobacco consumption and exposure to tobacco smoke. Such measures and policies should include the following:(Passive smoking)(a) implementation of legislation and other effective measures at the appropriate government level(i)prohibiting smoking in places providing services to children, such as schools, libraries, and day care, health care and early childhood development settings;(ii) prohibiting smoking in the indoor premises of government agencies and authorities and comparable public bodies intended for the public and clients; and(iii) promoting effective education campaigns on the subject of smoke free homes and other environments, with special attention to the health effects of the most vulnerable, such as children and pregnant women.(iv) States should be encouraged to enforce secondhand smoke restrictions through innovative actions.

Why this is significant

The US delegation made changes to the Chairman's text that would greatly reduce the ability for the FCT to protect the rights of non-smokers against second hand smoke. First, the US delegation replaced "shall" by "should". This would give Parties total discretion to either adopt or reject the implementation of legislation and other effective measures that would provide systematic protection from exposure to tobacco smoke.Secondly, the US delegation removed the inclusion of a provision encouraging governments to protect nonsmokers in workplaces and public buildings.In addition, this provision should not be limited to protecting only specific groups such as children. Everyone has the right to be protected against the dangers of second hand smoke.It must be noted as well, that the US government has considerably weakened its position in regards to second hand smoke and the protection of nonsmokers between the first Inter Negotiating Meeting that took place in October 2000 and the second Inter Negotiating Meeting that took place in May 2001. For example, it pulled back from proposals for an international ban on smoking in bars, restaurants, outside schools and on public transportation

Chairman's text:

F. Price and tax measures to reduce the demand for tobacco 2. Each Party shall, to the extent possible within the means at its disposal and its capabilities, adopt legislative, executive and administrative measures, and cooperate with other Parties in harmonizing appropriate tax policies, in order to reduce tobacco consumption and exposure to tobacco smoke. Such measures and policies shall include the following: (a) prohibition of tax-free and duty-free sales of tobacco products; (b) imposition of taxes on tobacco products so as to achieve a stable and continuous reduction in tobacco consumption; (c) adoption of other price and tax measures that may be recommended by the Conference of the Parties.

Text proposed by the United States of America:

2. Each Party should, taking into account the means at its disposal and its capabilities, adopt measures, and cooperate with other Parties in developing appropriate tax policies, in order to reduce tobacco consumption and exposure to tobacco smoke.

Why this is significant

Price measures are an effective tool to reduce tobacco consumption. In this instance, the language proposed by the US delegation: (a) removes the language concerning tax free and duty free sales of tobacco products. This undermines the notion that purchase incentives for tobacco are inappropriate and a danger to public health;(b) removes the clause imposing a tax policy that would reduce tobacco consumption and consequently disease caused by tobacco consumption.

Chairman's text13.

The Parties recognize that an effective licensing system for retailers of tobacco products is an important mechanism to curb illicit trade in tobacco products and to prevent sales of tobacco products to children and young persons.14. Each Party shall, to the extent possible within the means at its disposal and its capabilities, adopt legislative, executive and administrative measures to license all tobacco product retailers.

Text proposed by the United States of America:

Delete paragraph 13Delete paragraph 14

Why this is significant

In this instance, the US delegation weakens the FCTC by deleting a provision calling for the licensing of tobacco retailers as an effective means to enforce youth access law. This is a law that is already in place in many American States.

Chairman's text:

G. (Packaging and labeling)(d) adoption of appropriate measures to ensure that:(i) the terms "low tar", "light", "ultra light", "mild" or any other similar term has the aim or indirect effect of conveying the impression that a particular tobacco product is less harmful than others are not used on any unit packet or package of tobacco products;(ii) tobacco packaging and labeling does not otherwise promote a tobacco product by any means that are false, misleading or deceptive or that are likely to create an erroneous impression about its characteristics, health effects, hazards or emissions;(iii) each unit packet or package of tobacco products carries the statement and product information specified in Article [Measures Related to the Supply of Tobacco];(iv) each unit packet or package of tobacco products carries a general health warning, including a picture or pictogram illustrating the harmful consequences of tobacco consumption, in accordance with Annex [INSERT]; these warnings shall:(1) clearly indicate the prohibition of sales of tobacco products to persons under the age of 18;(2) provide clear information about the toxic contents of the tobacco product, specifically tar, nicotine and carbon monoxide, including actual measurements of smoke yields; (3) appear in the principal language or languages of the country in whose territory the product is placed on the market.

Text proposed by the United States of America:

(d) adoption of appropriate measures, consistent with each Party's domestic law, to encourage clear, conspicuous and prominent health warnings for labels on packages of tobacco products and to prohibit false, misleading, unsubstantiated, and deceptive claims.

Why this is significant

The language proposed by the US government weakens the FCTC by:(i) removing the language prohibiting the use of misleading words such as "low" and "light" which convey the erroneous impression that a "light" cigarette is less harmful. In addition, aggressive marketing of such "light" products has only increased tobacco consumption.(ii) removing the introduction of pictograms illustrating the negative effects of smoking. Such pictograms have been proven to be effective in reducing sales of tobacco, hence positively impacting public health..

Chairman's text

(Advertising, promotion and sponsorship)2. In addition to obligations related to other non price measures specified in Article [INSERT], ALL parties shall commit themselves specifically to:(a) prohibiting all forms of direct and indirect tobacco advertising, promotion and sponsorship targeted at persons under the age of 18;(b) imposing strict restrictions on all forms of direct and indirect tobacco advertising, promotions and sponsorship targeted at persons 18 years of age and older, including incentives such as gifts, coupons, rebates, competitions and frequent purchaser programmes, with the aim of reducing the appeal of tobacco products to all segments of society; (c) requiring that tobacco companies disclose all expenditures on advertising and promotion and make those figures available to the public;(d) adopting national measures and imposing appropriate regulatory restrictions to ensure that tobacco advertising, promotions and sponsorship does not promote a tobacco product by any means that are false, misleading or deceptive or that are likely to create an erroneous impression about its characteristics, health effects, hazards or emissions;(e) adopting measures and imposing appropriate regulatory restrictions in order progressively to phase out tobacco sponsorship of sporting and cultural events;(f) adopting national measures and cooperating in order to phase out cross border advertising, promotions and sponsorship, including, inter alia, tobacco advertising, promotions and sponsorship on cable and satellite television, the Internet, newspapers, magazines and other printed media.

Text proposed by the United States of America

2. Each Party shall, to the extent possible within the means at its disposal and its capabilities, adopt legislative, executive and administrative measures in order to reduce tobacco consumption and exposure to tobacco smoke. In addition to obligations related to other non price measures specified in Article [INSERT], all Parties shall commit themselves specifically to:(a) eliminating, to the extent permitted under domestic law, tobacco advertising, promotion and sponsorship that has special appeal to children and adolescents;(b) banning outdoor advertising of tobacco products, to the extent that such advertising is targeted at or focused on children, such as within a specified distance of places providing services to children, such as schools, libraries, and day care, health care and early childhood development settings;(c) where print advertising is permitted and is accessible to children, limiting it to black/white type format;(d) requiring that tobacco companies report all annual expenditures on advertising, marketing, and promotion in the aggregate and make those figures available to the public;(e) 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, unsubstantiated, or otherwise deceptive;(f) requiring health warnings in any tobacco product advertising.

Why this is significant

Bans on tobacco advertising, sponsorship and other promotional activities have proven to be effective in reducing tobacco consumption and prevention people for starting to smoke. For this reason, an overwhelming number of countries present at the negotiations have expressed a strong support for a total ban on tobacco advertising. The US Delegation opposes a total ban on tobacco products and further weakens the already weak language proposed by the Chairman. The language proposed by the US delegation does not even include a total ban of advertisement to children. The current language only limits advertisement to youth under 18. It has been demonstrated that partial bans have little or no effect. For this reason the WHO and the World ban have recommended that countries prohibit all forms of tobacco advertising. In addition, a large number of countries, especially in the developing world, have expressed strong support for a total ban on tobacco products. While ASH understands that certain countries, including our own, may have some constitutional limitations that make it difficult to implement a total ban on tobacco products, the US should not stand in the way of countries that can implement a total ban on advertising of tobacco products.

Chairman's text

5. Each Party shall undertake the following legislative, executive, and administrative measures in order to prevent and combat illicit trade in tobacco products.(a) monitoring and collection of data on cross-border trade in tobacco products, including illicit trade;(b) enactment and/or strengthening of criminal legislation, with appropriate penalties, that prohibits the production of, and trade in counterfeit and contraband cigarettes and other such tobacco products, and taking of appropriate steps to enforce such positions; (c) appropriate steps to ensure that all confiscated counterfeit and contraband cigarettes and other such tobacco products are delayed.6. The Parties shall strengthen cooperation between different national and international agencies in promoting investigations, judicial prosecutions and proceedings relating to illicit trade in tobacco products. The Parties shall further cooperate to promote regular exchange of information to prevent such trade pursuant to Annex [INSERT] to this convention.

Text proposed by the United States of America:

Delete paragraph

Why this is significant

One third of all global cigarettes are never accounted for as legal imports. In addition to having an economical impact, smuggling has a major public health implication. By undermining tax and price policies, smuggling allows for the introduction of cheap cigarettes. This in turn only increasing the number of smokers, especially among the young and poor who are more sensitive to price.The FCTC offers an opportunity for countries to take a concerted global action to curb the wide spread smuggling of cigarettes. The US delegation greatly reduces the opportunity to reduce smuggling by removing the inclusion of measures to combat illicit trade of tobacco products from the FCTC.

Chairman's text:

I. Measures related to the supply of tobacco (Government support for tobacco manufacturing and agriculture) 15. Each Party shall gradually eliminate subsidies for tobacco growing and manufacturing of tobacco products and, in accordance with the means at its disposal and its capabilities, promote alternative economic activities for tobacco workers and growers.

Text proposed by the United States of America:

Delete paragraph.

Why this is significant

The text proposal submitted by the US removes the language imposing an elimination of tobacco subsidies and exploration of alternative economic activities for tobacco growers.