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 World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)ⁱ 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
• restrictions and requirements for packaging and labelling of tobacco products
• promotion and strengthening of education, communication, training and public awareness of tobacco control issues
• banning tobacco advertising, promotion and sponsorship
• promoting treatment of tobacco dependence and cessation of tobacco use.

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, Article 7 requires the Conference of the Parties to the Convention (COP) 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. The guidelines adopted by the FCTC COP are intended to assist Parties in implementing their legal obligations under the Convention. As agreements between the Parties subsequent to conclusion of the Convention regarding the interpretation and application of its provisions, the guidelines must be taken into account in legal interpretation of the FCTC (Vienna Convention on the Law of Treaties, Article 31).ⁱⁱ While some elements of the guidelines impact directly on the interpretation of Parties' legal obligations, others are recommendatory.

As of November 2010, the COP had adopted guidelines for implementation of all the provisions requiring non-price demand reduction measures, including Article 14. The guidelines adopted for implementation of Articles 9 and 10 at this time were partial only, with additional guidelines to be elaborated in a 'step-by-step' process.

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—guidelines to assist Parties in meeting their obligations under this Article were adopted by the COP at its second session (COP-2).ⁱⁱⁱ 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'. They 'identify the measures necessary to achieve effective protection from the hazards of secondhand tobacco smoke', based on 'the best available evidence and the experience of Parties that have successfully implemented effective measures'.

Key principles agreed in the guidelines for 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
• 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.

The guidelines also indicate what should be understood by key terms of Article 8: 'indoor', 'workplaces', 'public transport' and 'public places'.

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

Articles 9 and 10 of the FCTC require Parties to adopt measures for testing, measuring and regulating the contents and emissions of tobacco products, and for disclosure of the contents, toxic emissions and constituents of tobacco products. The COP adopted partial guidelines for implementation of these obligations at its fourth session (COP-4), with guidance 'consolidated into one set of guidelines' because of 'the close relationship between these two articles'.^iv

The partial guidelines for implementation of Articles 9 and 10 provide guidance on certain aspects of regulation of the contents of tobacco products and of tobacco product disclosures, and recommendations on the process for adoption, implementation and enforcement of these measures, including their financing. Elaboration of a complete set of guidelines will continue in a 'step-by-step' process.

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.

The partial guidelines for implementation of Articles 9 and 10 adopted by COP-4 provide guidance on regulation to reduce the attractiveness of tobacco products by prohibiting or restricting certain ingredients. These include ingredients used to increase palatability (such as added sugars, sweeteners, flavours, spices and herbs), ingredients that have colouring properties, ingredients used to create the impression that tobacco products have health benefits (such as vitamins) and ingredients associated with energy and vitality (such as caffeine and guarana).

Guidance on other aspects of regulation to reduce the attractiveness of tobacco products and on regulation to reduce addictiveness and toxicity—including with respect to constituents of processed tobacco, the emissions of tobacco products and tobacco product characteristics—is intended to be provided at a later stage.

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. Parties must also adopt and implement effective measures for public disclosure of information about the toxic constituents of tobacco products and the emissions that they may produce.

The partial guidelines for implementation of Articles 9 and 10 adopted by COP-4 provide guidance on requirements for disclosure to governmental authorities about the ingredients of tobacco products and about tobacco product characteristics, such as design features. They also contain recommendations with respect to disclosure of market information to help determine regulatory needs and priorities.

Guidance on disclosure to governmental authorities of the constituents of processed tobacco and the emissions of tobacco products, and on disclosure to the public, is intended to be provided at a later stage.

18.4.3 Packaging and labelling of tobacco products

Article 11 requires each Party to the FCTC to adopt and implement measures with respect to the packaging and labelling of tobacco products. The 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. The COP, at its third session (COP-3), adopted guidelines to assist Parties in implementing their obligations under Article 11.^v

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'. This may include terms such as 'low tar', 'light', 'ultra light' or 'mild'.

In adopting the guidelines for implementation of Article 11, the Parties agreed that 'the display of figures for emission yields (such as tar, nicotine and carbon monoxide) on packaging and labelling, including when used as part of a brand name or trademark' has resulted in the mistaken belief that some cigarettes are less harmful
than others.

The guidelines also indicate other means of promotion that may be misleading, deceptive or likely to create an erroneous impression:

• the display of terms such as 'extra', 'ultra', and similar terms in any language
• the display of quantitative and qualitative statements about tobacco constituents and emissions that might imply that one brand is less harmful than another (including statements such as 'these cigarettes contain reduced levels of nitrosamines')
• the display of expiry dates, where this misleads or deceives consumers into concluding that tobacco products are safe to be consumed at any time.

The guidelines recommend that Parties consider adopting 'plain packaging'—measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style—which may 'address industry package design techniques that may suggest that some products are less harmful than others'.

18.4.3.2 Warnings and other information

Article 11.1(b) provides that 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'. The warnings must be 'large' (they shall cover no less than 30% of the principal display areas, and should cover 50% or more), 'clear, visible and legible', and 'rotating'. They may be in the form of, or include, pictures or pictograms.

Packaging and labelling may also include 'other appropriate messages' (Article 11.1b), and must 'contain information on relevant constituents and emissions of tobacco products as defined by national authorities' (Article 11.2). Each Party must require that textual warnings and information appear in its principal language or languages (Article 11.3).

The guidelines for implementation of Article 11 state that health warnings and messages should appear: 'on both the front and back (or on all main faces if there are more than two) of each unit packet and package, rather than just one side ... recognizing that the frontal display area is the one most visible to the user for most package types'; 'at the top of the principal display areas'; and 'in such a way that the normal opening of the package does not permanently damage or conceal the text or image of the health warning' and it is 'not obstructed by other required packaging and labelling markings or by commercial inserts and onserts'. The guidelines recommend maximising the size of warnings and messages to 'cover as much of the principal display areas as possible'. As noted above, they also recommend that Parties consider adopting 'plain packaging', which may 'increase the noticeability and effectiveness of health warnings and messages' and 'prevent the package from detracting attention from them'.

The guidelines recommend the use of a range of different warnings and messages. Warnings should include text 'in bold print in an easily legible font size and in a specified style and colour(s) that enhance overall visibility and legibility' (with 'contrasting colours for the background of the text'), and 'culturally appropriate pictures or pictograms, in full colour' (recognising that warnings including pictures are 'more likely to be noticed' and may reach those for whom text warnings are not legible, as well as being 'far more effective').

The requirement that health warnings be 'rotating' means 'having multiple health warnings and messages appearing concurrently' or 'setting a date after which the health warning and message content will change', and the guidelines recognise that using both types of rotation increases the effectiveness of warnings.

The guidelines also indicate that, in implementing the obligation to require the display of information on relevant constituents and emissions, Parties should require 'that relevant qualitative statements be displayed on each unit packet or package about the emissions of the tobacco product' (such as 'smoke from these cigarettes contains benzene, a known cancer-causing substance', and 'smoking exposes you to more than 60 cancer-causing chemicals').

Finally, the guidelines deal with the process of adopting and implementing packaging and labelling measures, indicating what may be considered 'effective measures', with recommendations on drafting, the process of entry into force of new requirements, and monitoring, enforcement and penalties.

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 of and access to information 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.

COP-4 adopted guidelines to assist Parties in meeting their obligations under Article 12.^vi The objectives of the guidelines are to identify key measures necessary to successfully educate, communicate with and train people on the health, social, economic and environmental consequences of tobacco production, consumption and exposure to tobacco smoke, and to guide Parties in establishing sustainable infrastructure to support such measures.

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
• 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.

The guidelines for implementation of Article 12 contain detailed recommendations on planning, implementing and evaluating public awareness programs, and on ensuring that the public has free and universal access to accurate information on the strategies and activities of the tobacco industry and on its products.

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
• awareness and participation of public and private agencies and non-governmental organisations not affiliated with the tobacco industry in developing and implementing intersectoral programs and strategies for tobacco control.

The guidelines for implementation of Article 12 contain detailed recommendations on planning, implementing and evaluating training programs and on consultation, cooperation and partnerships with civil society.

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 1 defines 'tobacco advertising and promotion' as 'any form of commercial communication, recommendation or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly', and 'tobacco sponsorship' as 'any form of contribution to any event, activity or individual with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly'.

Article 13 requires each Party to undertake a comprehensive ban (or, if constitutional impediments prevent a comprehensive ban, restrictions) on all tobacco advertising, promotion and sponsorship, including cross-border advertising, promotion and sponsorship originating from its territory. Any Party that does not have a comprehensive ban must require disclosure to relevant government authorities of tobacco industry expenditure on advertising, promotion and sponsorship not yet prohibited. All Parties must cooperate in the development of technologies and other means necessary to facilitate the elimination of cross-border advertising, and consider the elaboration of a protocol on cross-border advertising, promotion and sponsorship. To assist Parties in meeting these obligations, COP-3 adopted guidelines for implementation of Article 13.^vii

18.4.5.1 A comprehensive ban

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, the comprehensive ban must extend to cross-border advertising, promotion and sponsorship originating from its territory. Parties also recognise their 'sovereign right' to ban prohibited forms of advertising, promotion and sponsorship entering their territory and to impose equal penalties as those applicable to domestic advertising, promotion and sponsorship (Article 13.7).

The guidelines for implementation of Article 13 state that a 'comprehensive ban on all tobacco advertising, promotion and sponsorship applies to all forms of commercial communication, recommendation or action and all forms of contribution to any event, activity or individual with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly'. The guidelines specify a range of such forms of communication, recommendation, action or contribution, including, but not limited to:

• display of tobacco products at points of sale (including vending machines)
• tobacco pack or product features with promotional aims, effects or likely effects (such as logos, colours, fonts, pictures, shapes and materials on or in packs or on individual cigarettes or other tobacco products)
• internet sales of tobacco products
• 'brand stretching' and 'brand sharing'
• contributions to 'socially responsible causes' and public dissemination of information about 'socially responsible' business practices (except where strictly necessary)
• certain depictions of tobacco in entertainment media
• a range of particular forms included in the 'indicative (non-exhaustive) list' attached as an appendix to the guidelines.

The guidelines indicate that undertaking a comprehensive ban requires enacting legislation which 'avoid[s] providing lists of prohibited activities that are, or could be understood to be, exhaustive'; defines and applies strictly any exceptions allowing for 'communication within the tobacco trade'; and 'covers the entire marketing chain', ensuring that 'all persons or entities involved in the production, placement and/or dissemination of tobacco advertising, promotion and sponsorship' bear responsibility in accordance with their roles in production and dissemination. Undertaking a comprehensive ban also requires '[e]ffective monitoring, enforcement and sanctions supported and facilitated by strong public education and community awareness programmes'.

For a Party 'that is not in a position to undertake a comprehensive ban due to its constitution or constitutional principles', the primary obligation under Article 13 is to apply restrictions on all tobacco advertising, promotion and sponsorship, extending to advertising, promotion and sponsorship originating from its territory with cross-border effects (Article 13.3). While acknowledging that 'the question of how constitutional principles are to be accommodated is to be determined by each Party's constitutional system', the guidelines indicate the Parties' common view that Article 13 requires any Party 'not in a position to undertake a comprehensive ban due to its constitution or constitutional principles' to 'apply restrictions that are as comprehensive as possible in light of those constraints'.

Article 13.4 sets out minimum obligations that must be complied with by each Party, in accordance with its constitution or constitutional principles. Article 13.5 encourages Parties to implement measures beyond these obligations. As explained in the guidelines, the 'minimum obligations' apply to all forms of tobacco advertising, promotion and sponsorship not or not yet prohibited in accordance with Parties' primary obligations under Articles 13.2 and 13.3. They include obligations to 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', and to require that 'health or other appropriate warnings or messages accompany all tobacco advertising and, as appropriate, promotion and sponsorship'.

18.4.5.2 Disclosure

Any Party that does not have a comprehensive ban on tobacco advertising, promotion and sponsorship is required under Article 13.4(d) to require disclosure to relevant government authorities of expenditures by the tobacco industry on advertising, promotion and sponsorship not yet prohibited. Such authorities may decide to make those figures available to the public and to the COP.

The guidelines for implementation of Article 13, noting that Article 13.5 encourages Parties to implement measures beyond their obligations under Article 13.4, recommend that disclosure requirements be implemented by all Parties, including those with comprehensive bans in place (in which some very limited forms of relevant commercial communication, recommendation or action might continue to exist). The guidelines include recommendations on particular information that should be required to be disclosed, and on making such information readily available to the public.

18.4.5.3 Cooperation and consideration of a protocol

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. Under Article 13.8, the Parties are required 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.

The Parties have acted at the multilateral level through the COP to consider the elaboration of a protocol and other means necessary to facilitate the elimination of cross-border advertising, promotion and sponsorship. The first session of the COP (COP-1) established an expert group to consider the matter of a protocol.^viii The group—noting that the significant obligations to which Parties have already committed in respect of international cooperation under various articles of the FCTC are applicable to tobacco advertising, promotion and sponsorship—recommended that the need for a protocol be reconsidered after guidelines and other measures to promote and facilitate cooperation had been put in place.^ix The working group that elaborated the guidelines for implementation of Article 13 developed more detailed recommendations on measures to facilitate international cooperation.^x These recommendations were noted by COP-3^xi and partially adopted by COP-4, which decided to establish a standing expert group on cross-border advertising, promotion and sponsorship.^xii

18.4.6 Demand reduction measures concerning 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.

COP-4 adopted guidelines to assist Parties in fulfilling their obligations under Article 14.^xiii Recognising the differing national circumstances of Parties and the need to develop infrastructure to support tobacco cessation and treatment of tobacco dependence, the guidelines recommend a 'stepwise' approach: 'Parties should use existing resources and infrastructure as much as they can, and ensure that tobacco users receive at least brief advice. Once this has been achieved, other mechanisms for providing tobacco dependence treatment, including more specialist approaches, can be put in place'.

18.4.6.1 Cessation programs and diagnosis and treatment of dependence

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, healthcare facilities, workplaces and sporting environments. Article 14.2(b) requires Parties to endeavour to include counselling services on cessation of tobacco use and 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(c) requires Parties to endeavour to establish programs for diagnosing, counselling, preventing and treating tobacco dependence in healthcare facilities and rehabilitation centres.

The guidelines for implementation of Article 14 recommend a number of actions to strengthen or create the necessary infrastructure and develop cessation support, taking into account national circumstances and priorities. These include conducting a national situation analysis, addressing tobacco use by healthcare workers and others involved in cessation, developing training capacity, integrating brief advice into existing healthcare systems, and establishing sustainable sources of funding. The guidelines also contain agreed key components of a system to help tobacco users quit—taking into account national circumstances and priorities, Parties should establish population-level approaches (mass communication and education programs, integration of brief advice into all healthcare systems, and widely publicised and adequately staffed quitlines), as well as establish more intensive individual tobacco dependence treatment services, make medications available, and consider emerging research evidence and novel approaches.

18.4.6.2 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. The guidelines for implementation of Article 14 recommend that Parties share tobacco cessation and treatment experiences, including strategies to develop and fund support for cessation of tobacco use, national treatment guidelines, training strategies, and data and reports from evaluations of tobacco dependence treatment systems.