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COPing with the global tobacco epidemic: FCTC COP7 and its implications

Published online by Cambridge University Press:  21 July 2017

Lukasz GRUSZCZYNSKI
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Abstract

This report analyses the outcome of the latest meeting of the Conference of the Parties to the Framework Convention on Tobacco Control. In this context, it concentrates on the adopted amendments to the partial guidelines for implementation of Articles 9 and 10 of the Framework Convention, recommendations on the regulation of e-cigarettes, and discussion on the interactions between international trade/investment obligations and implementation of the obligations of the Convention.

Type
Reports
Information
European Journal of Risk Regulation , Volume 8 , Special Issue 2: Special Issue on the Implementation in Europe of the WHO Recommendations on Food Marketing to Children , June 2017 , pp. 428 - 436
Copyright
© Cambridge University Press 

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Footnotes

*

Associate Professor at the Institute of Legal Studies, Polish Academy of Sciences (Poland), Visiting Fellow at the HAS Centre for Social Sciences, Institute for Legal Studies and Pázmány Péter Catholic University (Hungary). This research was financed by the Polish National Science Centre pursuant to grant number 2016/21/B/HS5/02065.

References

1 The treaty came into force in 2005, 90 days after the 40th accession, ratification, or acceptance.

2 These general requirements are further developed in the Protocol to Eliminate Illicit Trade in Tobacco Products adopted by the WHO in 2012. As of today, the Protocol has been ratified by or acceded to by 24 Parties. It will enter into force 90 days after the threshold of 40 Parties is reached.

3 Cf Art. 23.5 FCTC. The article specifically provides: “The Conference of the Parties shall keep under regular review the implementation of the Convention and take the decisions necessary to promote its effective implementation.”

4 These include Arts. 5.3, 6, 8, 9 and 10, 11, 12, 13 and 14. All guidelines are available on the FCTC website at <http://www.who.int/fctc/treaty_instruments/adopted/en/> (accessed 31 March 2017).

5 Conference of the Parties to the FCTC, Draft report of the seventh session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, FCTC/COP/7/37, 12 November 2016, para. 26.

6 Further development of the partial guidelines for implementation of Arts. 9 and 10 of the WHO Framework Convention on Tobacco Control, Report by the Working Group, FCTC/COP/7/8, 15 August 2016.

7 Partial guidelines for implementation of Arts. 9 and 10, Regulation of the contents of tobacco products and regulation of tobacco product disclosures, adopted by the Conference of the Parties at its fourth session (decision FCTC/COP4(10)) with amendments adopted at the fifth session (decision FCTC/COP5(6)), para. 1.2.1.

8 Report by the Working Group, supra note 6, p. 6 (Annex 1).

9 Cf Draft report, supra note 5, para. 43.

10 Report by the Working Group, supra note 6, para. 10.

11 Information provided during the interview with one of the delegates to the FCTC COP7. See also decision FCTC/COP7(14).

12 Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning the Manufacture, Presentation and Sale of Tobacco and Related Products, COM (2012) 788 Final (19 December 2012).

13 WHO, Tobacco Laboratory Network Official Method SOP 04: Standard operating procedure for determination of nicotine in cigarette tobacco filler, available at <http://bit.ly/2iEGiLj>>Google Scholar.

14 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969 (entered into force 27 January 1980), 1155 UNTS 331; for the general discussion see G Nolte (ed.), Treaties and Subsequent Practice (Oxford University Press 2013)Google Scholar.

15 For a more detailed discussion, see L Gruszczynski, “The World Health Organization Framework Convention on Tobacco Control as an International Standard under the Agreement on Technical Barriers to Trade” in A Mitchell and T Voon (eds.), The Global Tobacco Epidemic and the Law (Edward Elgar Publishing 2014) 105 Google Scholar et sqq.

16 Cf e.g., Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes Google Scholar, WTO WT/DS406/R (adopted 24 April 2012).

17 Of course the significance of guidelines goes beyond the international law level. Because of their epistemic value they also provide important arguments for national health advocates and strengthen their position vis-à-vis governments.

18 Philip Morris Brands SARL, Philip Morris Products SA and Abal Brothers (SA) v Oriental Republic of Uruguay, ICSID Case No ARB/10/7, Award (8 July 2016).

19 ENDS is a term conventionally used in the WHO/FCTC nomenclature. This group encompasses various types of electronic cigarettes.

20 WHO, Electronic Nicotine Delivery Systems and Electronic Non-Nicotine Delivery Systems (ENDS/ENNDS). Report by WHO, FCTC/COP/7/11, August 2016.

21 E.g. ibid, para. 11.

22 Ibid para. 26.

23 Cf the discussion in L Gruszczynski, “FCTC’s COP6 Meeting and Its Implications for Tobacco Control Polices” (2014) 4 European Journal of Risk Regulation 537, 540–541 Google Scholar.

24 J Britton and others, Commentary on WHO Report on Electronic Nicotine Delivery Systems and Electronic Non-Nicotine Delivery Systems (2016), available at <http://www.ukctas.net/pdfs/UKCTAS-response-to-WHO-ENDS-report-26.10.2016.pdf> (accessed 31 March 2017)+(accessed+31+March+2017)>Google Scholar.

25 Ibid p. 4.

26 Cf J Hartmann-Boyce and others, Electronic Cigarettes for Smoking Cessation (Cochrane Report), 13 September 2016, available at: <http://onlinelibrary.wiley.com/doi/10.1002/14651858.CD010216.pub3/full> (finding 26 new studies in the pipeline).+(finding+26+new+studies+in+the+pipeline).>Google Scholar

27 Trade and investment issues, including agreements, and legal challenges in relation to the implementation of WHO FCTC, Report by the Convention Secretariat, FCTC/COP/7/21, 29 July 2016.

28 A denial of benefit clause was included in the Trans-Pacific Partnership (TPP) Agreement. It gives the TPP State-Parties the right to deny access to the ISDS system to an investor from another TPP country that seeks to challenge a national tobacco control measure.

29 FCTC/COP/7/21, supra note 27, paras. 22–24.

30 S Puig, Tobacco Litigation in International Courts Google Scholar, Arizona Legal Studies Discussion Paper No 2016-30, p. 1, also published in 57(2) Harvard International Law Journal (forthcoming).

31 See, e.g., National Foreign Trade Council, A Letter to Michael Froman, United States Trade Representative, 22 August 2013, available at <http://www.nftc.org/default/Publications/Trade_Policy/TPP Letter 082213.pdf> (accessed 31 March 2017)+(accessed+31+March+2017)>Google Scholar.

32 Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, DS435 (complaint by Honduras), DS441 (complaint by the Dominican Republic), DS458 (complaint by Cuba), DS467 (complaint by Indonesia).

33 Conference of the Parties to the FCTC, Second Report of Committee B (Draft) Google Scholar, FCTC/COP/7/B/R/2, 11 November 2016, p. 3.