[Intl-tobacco] NEJM: Waxman on FCTC

[Robert Weissman]

New England Journal of Medicine
Volume 346:936-939
March 21, 2002
Number 12


The Future of the Global Tobacco Treaty Negotiations
Henry Waxman

Government officials around the world now recognize what industry
executives have long understood — the tobacco business is fundamentally
a global enterprise.1 The sale of raw leaf and finished products, the
smuggling of cigarettes to evade taxes, and the effects of print and
television advertising all cross national borders. The consequences of
this enterprise are staggering — by the year 2020, an estimated 8.4
million people will die annually from tobacco-related diseases, more
than two thirds of them in developing countries.2 If current trends
continue, more people will perish annually from tobacco-related illness
than from any single disease.

To respond to this global public health crisis, in 1995 the World Health
Assembly of the World Health Organization inquired into the feasibility
of an international treaty on tobacco control.3 Experts in international
law found that a legally binding agreement could be used to establish
standards for international tobacco control, assist governments in
developing effective domestic legislation, and create a global mechanism
to counter the political influence of the tobacco industry.4 In 1999,
the World Health Assembly authorized the start of negotiations,5 and
representatives from more than 160 countries have subsequently met three
times to negotiate the treaty, which is called the Framework Convention
on Tobacco Control (FCTC). At least two more sessions are planned before
the FCTC is ready for ratification by individual nations in 2003.

The United States has a crucial role in the FCTC process and should lead
the effort to develop a strong treaty. The United States supports
tobacco-control programs on several continents. Indeed, some of the most
compelling evidence of the effectiveness of antitobacco policies comes
from state programs in the United States.6,7 Yet the United States also
exports more cigarettes than any other nation in the world Å\ more than
one of every five traded, representing billions of dollars in revenue
for U.S. tobacco companies.8 With negotiations at a midpoint, and in
many ways at a crossroads, it is important to evaluate the public health
implications of U.S. actions critically.

The Changing U.S. Role

At the first negotiating session, in October 2000, the U.S. delegation
supported many strong tobacco-control positions.9 Donna Shalala, who was
then Secretary of Health and Human Services, stated that the U.S. policy
was to take the lead in creating and ratifying an effective treaty that
would reduce global tobacco use.

At the second session, in May 2001, the U.S. delegation appointed by the
new administration reversed a number of previously held positions. In
comments to the delegation, the largest U.S. tobacco company, Philip
Morris, urged that 11 provisions be deleted from the treaty. U.S.
negotiators proposed or supported 10 of these deletions.10 The United
States also objected to a provision that warning labels on cigarette
packages be printed in the main language or languages of the country of
sale.11 During the proceedings, the chair twice publicly noted that
positions being proposed by the United States conflicted with the
international consensus.9

After considerable criticism,12,13,14 U.S. negotiators at the third
session, in November 2001, retreated from several of the new positions.
For example, the United States abandoned its opposition to the proposal
that warning labels be printed in the main language or languages of the
country of sale.15 The United States also proposed a comprehensive
standard for global tobacco surveillance and advanced early discussions
of measures to combat cigarette smuggling. On many key issues, however,
the United States continued to oppose important public health
provisions.

U.S. Positions on Key Issues

Taxes

Taxes on tobacco reduce its consumption, including consumption by
children.16,17 The World Bank has recently estimated that if the prices
of cigarettes were increased by 10 percent throughout the world, 40
million people would quit smoking, and 10 million lives would be
saved.18 On the basis of such evidence, in October 2000, the U.S.
delegation supported the requirement that all countries signing the FCTC
impose taxes on tobacco products and take steps to prevent the erosion
of the value of taxes over time.19

In May 2001, however, U.S. negotiators supported making all tobacco
taxes optional under the treaty,20 a proposal that would render the tax
provisions unenforceable. The U.S. delegation maintained this position
at the session held in November 2001.15

Advertising and Promotion

Because television advertisements, magazines, and international
travelers wearing promotional T-shirts or carrying promotional items can
cross national boundaries, other countries and many public health
advocates have supported an FCTC provision that would ban all tobacco
advertising and promotion. Such a provision would help reduce
consumption.21,22 U.S. negotiators, however, have opposed this proposal
on the grounds that a complete ban could violate the First Amendment.
The United States has instead supported the development of an associated
but distinct agreement (known as a "protocol") to ban advertising, which
would apply only to the countries that chose to sign it.15,19,23

As for the text in the FCTC on advertising and promotion, the United
States has offered different proposals at each negotiating session. In
October 2000, the U.S. negotiators proposed a ban on any tobacco
advertising or promotion that "appeals" to children. A U.S. delegate
explained that "it was possible for advertising to appeal to children
and hence encourage them to smoke even if it was not consciously
targeted at them."19 In May 2001, however, the U.S. delegation supported
a ban only on advertisements with a "special appeal" to children.24 In
November 2001, the U.S. proposal was even narrower, applying only to
marketing efforts "targeted" at persons under the age of 18 years.15
Under this formulation, tobacco companies could design advertising
campaigns that encouraged children to smoke as long as the campaigns
were ostensibly targeted at a different age group. Indeed, this proposal
would permit the return of such marketing ploys as Joe Camel, which R.J.
Reynolds claimed was created for adult smokers,25 despite its known
appeal to children.26,27

Labeling

Marketing brands of cigarettes as "light" or "mild" can mislead
consumers into thinking that these brands offer a health advantage over
other tobacco products.28 For this reason, Canada and the European Union
have banned such terms in their countries and have urged a global
prohibition as part of the FCTC.29,30,31

In May 2001, U.S. negotiators opposed these efforts.11 In November 2001,
facing opposition from the European Union and other countries, the U.S.
negotiators revised their approach. The delegation proposed barring the
use of terms such as "light" and "mild" if the terms convey "a false or
misleading impression that a particular tobacco product is less harmful
than others."15 Although this proposal is an improvement over the May
2001 position, it would allow tobacco companies to defer compliance
until there was proof that each brand of cigarettes was being marketed
in a misleading manner. The U.S. position would also permit companies to
use colors to signal health benefits to purchasers without evidence of
such benefits.

Passive Smoking

Policies that limit smoking in public places and workplaces both protect
nonsmokers, including children, from respiratory disorders caused by
passive exposure to cigarette smoke and encourage smokers to quit.33,34
At the first negotiating session, in October 2000, the United States
proposed that the FCTC require countries to adopt measures that combat
passive smoking, including smoking bans on public transportation, in
bars and restaurants, and at enclosed public events.19 Yet in May 2001,
the U.S. negotiators sought to make all passive-smoking provisions
optional under the treaty.35 Moreover, the United States proposed the
deletion of any mention of smoking restrictions on public transportation
and in workplaces.36

In response to criticism, the United States modified its position in
November 2001. The U.S. negotiators proposed that the treaty encourage
countries to prohibit smoking on public transportation and in enclosed
public places, called for "systematic protection" of nonsmokers in all
indoor workplaces and restaurants, and suggested that attention be paid
to vulnerable groups, including children, pregnant women, and persons
with chronic heart or lung disease. Nonetheless, the U.S. delegation
continued to oppose mandatory restrictions on passive smoking.15

Trade

The underlying premise of the free-trade movement is that trade should
be encouraged. Trade in cigarettes, however, is an exception to this
rule. Multinational tobacco companies, when allowed into foreign
markets, market their products aggressively to women and children,
resulting in increased rates of cigarette smoking.37,38 For this reason,
several countries have proposed that the FCTC follow the approach of the
World Trade Organization in its recently concluded agreement on patents
of pharmaceuticals, which recognizes the principle that public health
concerns can take priority over trade rules.39 In November 2001, the
U.S. delegation opposed this proposal, insisting that trade principles
(such as "nondiscrimination" between domestic and imported products)
trump public health concerns.15

Another trade-related issue involves standards that cigarettes should be
required to meet when shipped in global commerce. At the second
negotiating session, in May 2001, the European Union proposed that
tobacco exports be held to the standards of the exporting country,
unless the standards of the importing country would be more protective
of public health.40 The United States did not accept this position.41

The Politics of Global Tobacco Control

The issues cited above exemplify the high stakes of the FCTC
negotiations. At future sessions, other topics, such as the regulation
of tobacco products, the liability of manufacturers, cigarette
smuggling, and ongoing monitoring of national efforts to control
smoking, will also receive attention. The U.S. role will be central in
negotiations on all these critical public health issues.

Unfortunately, efforts to improve the U.S. position face a daunting
obstacle: the political might of the tobacco industry. As Richard Kluger
wrote about past efforts to reduce tobacco use, in his Pulitzer
Prize_winning history, Ashes to Ashes, "Big tobacco did not hesitate to
dig into its deep pockets to resist the social tide through the purchase
and manipulation of the political process."42 These attempts to
influence federal policymakers have continued to the present day.
According to the nonpartisan Center for Responsive Politics, in the 2000
campaign, U.S. tobacco companies contributed $7.0 million to George W.
Bush, Republican congressional candidates, and Republican party
organizations and $1.4 million to Democratic candidates and
organizations. Since the election, the industry has contributed another
$2.3 million to President Bush and Republicans and $400,000 to
Democrats. From my vantage point as a legislator who has long battled
the tobacco industry, I see a connection between the industry's
pervasive political influence and the weaknesses in the current
administration's negotiating positions.

With about one year to go before the FCTC is finalized, the prognosis
for the treaty remains unclear. Without improvements in the U.S.
position, a unique opportunity to control the enormous worldwide toll of
tobacco consumption may be lost. Recent experience has shown, however,
that criticism and pressure can lead to progress. Diligent oversight by
Congress, combined with heightened awareness and advocacy within the
medical community, can play a vital part in strengthening the U.S.
resolve to establish a strong treaty.

We know more about the harm of tobacco consumption and effective ways to
reduce this harm than about perhaps any other major cause of human
suffering. That knowledge Å\ not political influence or campaign
contributions Å\ should guide U.S. actions in these crucial public
health negotiations.


Henry A. Waxman, J.D.
U.S. House of Representatives
Washington, DC 20515
I am indebted to Joshua M. Sharfstein, M.D., Karen L. Lightfoot, M.P.A.,
and Philip S. Barnett, J.D., for their assistance in the preparation of
this paper.
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