18.4 Measures relating to the reduction of demand for tobacco: non-price measures

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Under Article 7, each Party to the FCTC recognises that 'comprehensive non-price measures are an effective and important means of reducing tobacco consumption.' Parties have accepted a range of obligations to implement non-price measures including in relation to: protection from exposure to tobacco smoke; regulation of the contents of tobacco products and of tobacco product disclosures; packaging and labelling of tobacco products; education, communication, training and public awareness; advertising, promotion and sponsorship; and tobacco dependence and cessation. Each Party is required to adopt and implement effective legislative, executive, administrative or other measures necessary to implement the obligations in Articles 8 to 13, and must cooperate, as appropriate, with other Parties directly or through competent international bodies with a view to their implementation.

Additionally, the COP is required to assist Parties in giving effect to the provisions dealing with non-price measures to reduce the demand for tobacco by proposing appropriate guidelines for the implementation of Articles 8 to 13. Guidelines are non-binding instruments adopted by an international body to provide assistance to countries in addressing specific issues at the national or international level. Under the FCTC, guidelines are elaborated to assist Parties in implementing their legal obligations in relation to complex issues: they are 'designed to provide a reference frame and detailed guidance to countries in adopting national measures on the issues in question'.[4]

18.4.1 Protection from exposure to tobacco smoke

Under Article 8, each Party to the FCTC recognises that 'scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability.' In areas of existing national jurisdiction as determined by national law, Parties are required to adopt and implement effective measures providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places. At other jurisdictional levels, Parties are required to actively promote adoption and implementation of these measures.

While the text of Article 8 is relatively general—for example, it does not define 'effective' measures—the COP recently adopted, at its second session (COP-2), guidelines to assist Parties in meeting their obligations under this Article.[5] The guidelines contain 'agreed upon statements of principles and definitions of relevant terms, as well as agreed upon recommendations for the steps required to satisfy the obligations of the Convention.' Key principles that should guide Parties in their implementation of Article 8 include: that effective protection requires the creation of 100% smokefree environments; that all people should be protected from exposure to tobacco smoke; that legislation is necessary for effective protection and that voluntary smokefree policies are ineffective; that good planning, adequate resources, and participation by civil society are all essential for successful implementation and enforcement of smokefree legislation; that monitoring and evaluation of the implementation, enforcement and impact of smokefree legislation is necessary; and that measures to protect people from exposure to tobacco smoke should be strengthened and expanded as necessary to reflect new scientific evidence and case-study experiences.

18.4.2 Regulation of the contents of tobacco products, and of tobacco product disclosures

18.4.2.1 Contents of tobacco products

Article 9 of the FCTC requires action with respect to regulation of the contents of tobacco products. The COP, in consultation with competent international bodies, is required to propose guidelines for testing, measuring, and regulating the contents and emissions of tobacco products. Parties are required, 'where approved by competent national authorities', to adopt and implement effective measures for testing, measuring, and regulating the contents and emissions of tobacco products.

18.4.2.2 Tobacco product disclosures

Under Article 10, each Party to the FCTC must, 'in accordance with its national law', adopt and implement effective measures requiring manufacturers and importers of tobacco products to disclose to governmental authorities information about the contents and emissions of tobacco products, and requiring public disclosure of information about the toxic constituents of tobacco products and the emissions that they may produce.

18.4.3 Packaging and labelling of tobacco products

Article 11 requires each Party to the FCTC to adopt and implement a range of measures with respect to the packaging and labelling of tobacco products. These obligations fall broadly into two categories: first, obligations with respect to the prevention of false, misleading or deceptive packaging and labelling of tobacco products; and second, obligations with respect to the display of warnings and other information on tobacco product packaging.

18.4.3.1 False, misleading or deceptive packaging and labelling

Under Article 11.1(a) each Party shall, within three years after entry into force of the FCTC for that Party, adopt and implement, 'in accordance with its national law', effective measures to ensure that packaging and labelling do not promote a tobacco product by any means that are 'false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions.' Such means include the use of 'any term, descriptor, trademark, figurative or any other sign that directly or indirectly creates the false impression that a particular tobacco product is less harmful than other tobacco products', which may include terms such as 'low tar', 'light', 'ultra light', or 'mild'.

18.4.3.2 Warnings and other information

Each Party shall, within three years after entry into force of the FCTC for that Party, adopt and implement, 'in accordance with its national law', effective measures to ensure that each unit packet and package of tobacco products, and any packaging and labelling used in the retail sale of tobacco products, 'carry health warnings describing the harmful effects of tobacco use' (Article 11.1(b)), and 'contain information on relevant constituents and emissions of tobacco products as defined by national authorities' (Article 11.2). The packaging and labelling may also include 'other appropriate messages' (Article 11.1(b)). Warnings and messages must be approved by the competent national authority, and must be rotating, large, clear, visible and legible. They should cover 50% or more of the principal display areas, but must cover no less than 30%. They may be in the form of, or include, pictures or pictograms. Each Party must require that textual warnings and information appear in its principal language or languages (Article 11.3).

18.4.4 Education, communication, training and public awareness

Under Article 12 of the FCTC, Parties accept a number of obligations with respect to education, communication, training and public awareness. Each Party is required 'to promote and strengthen public awareness of tobacco control issues, using all available communication tools, as appropriate'. Towards this end, each Party must adopt and implement effective measures to promote awareness about tobacco and the tobacco industry among the general public, and to promote awareness of and participation in tobacco control by certain agencies, persons and organisations.

18.4.4.1 The general public

Each Party to the FCTC is required by Article 12 to adopt and implement effective measures to promote: public awareness of the adverse health, economic, and environmental consequences of tobacco production and consumption and exposure to tobacco smoke, and about the benefits of cessation of tobacco use and tobacco-free lifestyles; public access to information regarding these negative consequences, and to a wide range of information on the tobacco industry as relevant to the objective of the FCTC; and broad access to effective and comprehensive educational and public awareness programs on the health risks and addictive characteristics of tobacco consumption and the health risks of exposure to tobacco smoke.

18.4.4.2 Agencies, persons and organisations

Each Party to the FCTC is required by Article 12 to adopt and implement effective measures to promote: effective and appropriate training and awareness programs on tobacco control addressed to persons such as health workers, community workers, social workers, media professionals, educators, decision-makers, administrators, and 'other concerned persons'; and awareness and participation of public and private agencies and nongovernmental organisations not affiliated with the tobacco industry in developing and implementing intersectoral programs and strategies for tobacco control.

18.4.5 Tobacco advertising, promotion and sponsorship

Under Article 13.1, Parties to the FCTC recognise that 'a comprehensive ban on advertising, promotion and sponsorship would reduce the consumption of tobacco products.' Article 13 commits each Party to a range of obligations, including: to undertake bans or, in the case of constitutional constraints, restrictions on tobacco advertising, promotion and sponsorship, including cross-border advertising, promotion and sponsorship originating from its territory; if it does not have a comprehensive ban, to disclose tobacco industry expenditure on advertising, promotion and sponsorship not yet prohibited to relevant government authorities; to report on the measures taken to implement these bans or restrictions; to cooperate in the development of technologies and other means necessary to facilitate the elimination of cross-border advertising; and to consider the elaboration of a protocol on cross-border advertising, promotion and sponsorship.

18.4.5.1 Bans or restrictions

Article 13.2 requires each Party, 'in accordance with its constitution or constitutional principles', to undertake, within five years after entry into force of the FCTC for that Party, appropriate measures to implement a comprehensive ban of all tobacco advertising, promotion and sponsorship. Subject to the legal environment and technical means available to that Party, this comprehensive ban must extend to cross border advertising, promotion and sponsorship originating from its territory. For a Party 'that is not in a position to undertake a comprehensive ban due to its constitution or constitutional principles', the obligation is to undertake appropriate measures to apply restrictions on all tobacco advertising, promotion and sponsorship, extending to cross border advertising, promotion and sponsorship originating from its territory with cross-border effects (Article 13.3).

Article 13.4 sets out minimum obligations which must be complied with by each Party. Article 13.5 encourages Parties to implement measures beyond these minimum obligations. Each Party must: (a) prohibit all forms of tobacco advertising, promotion and sponsorship 'that promote a tobacco product by any means that are false, misleading or deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions'; (b) require that 'health or other appropriate warnings or messages accompany all tobacco advertising and, as appropriate, promotion and sponsorship'; and (c) restrict the use of 'direct or indirect incentives' that encourage the purchase of tobacco products by the public.

Article 13.4 also requires a Party that is in a position to undertake a comprehensive ban (i.e. is not prevented from doing so by constitutional constraints) to ban tobacco advertising, promotion and sponsorship on radio, television, print media and, 'as appropriate, other media, such as the internet', within a period of five years; and to prohibit tobacco sponsorship of 'international events, activities and/or participants therein'. A Party that is not in a position to undertake a comprehensive ban, due to its constitution or constitutional principles, must restrict tobacco advertising, promotion and sponsorship on radio, television, print media and, as appropriate, other media, within a period of five years; and must restrict tobacco sponsorship of international events, activities and/or participants therein.

The Parties to the FCTC also recognise, in Article 13.7, the 'sovereign right' of Parties that have a ban on certain forms of tobacco advertising, promotion and sponsorship 'to ban those forms of cross-border tobacco advertising, promotion and sponsorship entering their territory and to impose equal penalties as those applicable to domestic advertising, promotion and sponsorship originating from their territory in accordance with their national law.'

18.4.5.2 Disclosure

A Party that does not have a comprehensive ban on tobacco advertising, promotion and sponsorship is required under Article 13.4(d) to disclose to relevant government authorities expenditures by the tobacco industry on advertising, promotion and sponsorship not yet prohibited.

18.4.5.3 Reporting

Each Party is required to report, in conformity with Article 21, on the measures it has taken to implement either a comprehensive ban (Article 13.2), or restrictions (Article 13.3), on advertising, promotion and sponsorship as required under Article 13. Additionally, Article 13.4(d) states that relevant government authorities to which expenditures by the tobacco industry on advertising, promotion and sponsorship are disclosed may decide to make those figures available to the public and to the COP.

18.4.5.4 Cooperation

Article 13.6 requires all Parties to cooperate in the development of technologies and other means necessary to facilitate the elimination of cross-border advertising.

18.4.5.5 Consideration of a protocol

The Parties to the FCTC are required by Article 13.8 to consider the elaboration of a protocol setting out appropriate measures that require international collaboration for a comprehensive ban on cross-border advertising, promotion and sponsorship.

18.4.6 Tobacco dependence and cessation

Under Article 14.1, each Party 'shall develop and disseminate appropriate, comprehensive and integrated guidelines based on scientific evidence and best practices, taking into account national circumstances and priorities, and shall take effective measures to promote cessation of tobacco use and adequate treatment for tobacco dependence'. Article 14.2 outlines a number of steps that each Party shall endeavour to take towards this end, with respect to cessation programs, programs for diagnosis and treatment of tobacco dependence, and collaboration to facilitate accessibility and affordability for treatment of dependence.

18.4.6.1 Cessation programs

Pursuant to Article 14.2(a), each Party to the FCTC shall endeavour to design and implement effective programs aimed at promoting the cessation of tobacco use, in locations such as educational institutions, health care facilities, workplaces and sporting environments. Article 14.2(b) requires Parties to endeavour to include counselling services on cessation of tobacco use in national health and education programs, plans and strategies, with the participation of health workers, community workers and social workers as appropriate.

18.4.6.2 Programs for diagnosis and treatment of dependence

Parties shall endeavour to include diagnosis and treatment of tobacco dependence in national health and education programs, plans and strategies, with the participation of health workers, community workers and social workers as appropriate (Article 14.2(b)), and to establish programs for diagnosing, counselling, preventing and treating tobacco dependence in health care facilities and rehabilitation centres (Article 14.2(c)).

18.4.6.3 Collaboration

Pursuant to Article 14.2(d), each Party shall endeavour to collaborate with other Parties to facilitate accessibility and affordability for treatment of tobacco dependence, including pharmaceutical products. Such products and their constituents may include medicines, products used to administer medicines and diagnostics when appropriate.