18.5 Measures relating to the reduction of the supply of tobacco

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18.5.1 Illicit trade in tobacco products

Under Article 15.1, each Party to the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)ⁱ recognises that 'the elimination of all forms of illicit trade in tobacco products, including smuggling, illicit manufacturing and counterfeiting, and the development and implementation of related national law, in addition to subregional, regional and global agreements, are essential components of tobacco control'.

Parties have accepted a range of obligations to facilitate the elimination of illicit trade in tobacco products, including with respect to:

• documenting and controlling the movement of tobacco products
• legislating against illicit trade
• dealing with confiscated goods, equipment and proceeds
• reporting to the Conference of the Parties (COP)
• promoting cooperation relating to investigations, prosecutions and proceedings
• further measures including licensing.

18.5.1.1 Documenting and controlling the movement of tobacco products

Under Article 15.2, each Party is required to adopt and implement effective measures to ensure that all unit packets and packages of tobacco products, and any outside packaging of such products, are marked to assist Parties in determining the origin of the products. Each Party is also required, 'in accordance with national law and relevant bilateral or multilateral agreements', to assist other Parties in determining the 'point of diversion', and to monitor, document and control the movement of tobacco products and their legal status. In addition, Parties must require that unit packets and packages of tobacco products sold on its domestic market carry the statement: 'Sales only allowed in (insert name of the country, subnational, regional or federal unit)', or carry any other effective marking indicating the final destination or which would assist authorities in determining whether the product is legally for sale on the domestic market. Under Article 15.3, each Party must require that the above information and marking be presented in a legible form and/or appear in its principal language or languages.

Article 15.4 requires each Party, with 'a view to eliminating illicit trade in tobacco products', to monitor and collect data on cross-border trade in tobacco products, including illicit trade, and exchange information among customs, tax and other authorities 'as appropriate, and in accordance with national law and relevant applicable bilateral or multilateral agreements'. Parties are required to adopt and implement measures to monitor, document and control the storage and distribution of tobacco products held or moving under suspension of taxes or duties within its jurisdiction.

In addition, Article 15.2 requires each Party to 'consider, as appropriate, developing a practical tracking and tracing regime that would further secure the distribution system and assist in the investigation of illicit trade', while Article 15.7 commits each Party to 'endeavour to adopt and implement further measures including licensing, where appropriate, to control or regulate the production and distribution of tobacco products in order to prevent illicit trade'.

18.5.1.2 Legislating against illicit trade

Under Article 15.4(b), each Party is required to enact or strengthen legislation, with appropriate penalties and remedies, against illicit trade in tobacco products, including counterfeit and contraband cigarettes.

18.5.1.3 Dealing with confiscated goods, equipment and proceeds

Article 15.4(c) requires each Party to take appropriate steps to ensure that all confiscated manufacturing equipment, counterfeit and contraband cigarettes and other tobacco products are destroyed, using environmentally friendly methods where feasible, or are disposed of in accordance with national law. Parties must also, under Article 15.4(e), adopt measures as appropriate to enable the confiscation of proceeds derived from illicit trade in tobacco products.

18.5.1.4 Reporting to the Conference of the Parties (COP)

Article 15.5 requires that information collected by Parties pursuant to Article 15.4 be provided, as appropriate, in aggregate form by the Parties in their periodic reports to the COP, in accordance with Article 21 of the FCTC.

18.5.1.5 Promoting cooperation relating to investigations, prosecutions and proceedings

As appropriate and in accordance with national law, Article 15.6 requires each Party, with a view to eliminating illicit trade in tobacco products, to promote cooperation between national agencies and relevant regional and international intergovernmental organisations with respect to investigations, prosecutions and proceedings. Special emphasis is to be placed on cooperation at regional and subregional levels.

18.5.2 Sales to and by minors

Under Article 16, Parties are required to take measures with respect to sales of tobacco products to and by minors. Parties must adopt and implement effective measures to prohibit the sales of tobacco products to 'persons under the age set by domestic law, national law, or eighteen'; and should adopt and implement measures to prohibit the sales of tobacco products by persons under this age.

18.5.2.1 Prohibiting sales to minors

All Parties are required by Article 16.1 to adopt and implement effective measures, 'at the appropriate government level', to prohibit sales of tobacco products to 'persons under the age set by domestic law, national law, or eighteen'. Such measures may include:

• requiring tobacco sellers to place clear and prominent indicators about the prohibition of tobacco sales to minors at the point of sale and, in case of doubt, to request that purchasers provide evidence of having reached legal age
• banning the sale of tobacco products in any manner by which they are directly accessible, such as store shelves
• prohibiting the manufacture and sale of sweets, snacks, toys or any other objects in the form of tobacco products which appeal to minors
• ensuring that tobacco vending machines are not accessible to minors and do not promote the sale of tobacco products to minors.

A Party may also, by means of a binding written declaration pursuant to Article 16.5, indicate its commitment to prohibit the introduction of tobacco vending machines within its jurisdiction, or, as appropriate, to a total ban on tobacco vending machines. As of January 2011, only two Parties had declared a commitment under Article 16.5: China had indicated its commitment to prohibit the introduction of tobacco vending machines and Estonia had indicated its commitment to a total ban on tobacco vending machines. It should be noted that, as recognised in the guidelines for implementation of Article 13,ⁱⁱ tobacco vending machines are a form of tobacco advertising and promotion and should be banned by all Parties, subject to constitutional impediments, in accordance with their obligations under that Article.

Article 16 also requires all Parties to prohibit, or to promote prohibition, of the distribution of free tobacco products to the public and especially minors (Article 16.2) and to endeavour to prohibit the sale of cigarettes individually or in small packets, which increase the affordability of such products to minors (Article 16.3). Parties are also required to adopt and implement effective measures, including penalties against sellers and distributors, to ensure compliance with the obligations on sales of tobacco products to minors (Article 16.6).

18.5.2.2 Prohibiting sales by minors

Under Article 16.7, each Party should, as appropriate, adopt and implement effective measures to prohibit the sales of tobacco products by minors.

18.5.3 Provision of support for economically viable alternative activities

Article 17 requires Parties, in cooperation with each other and with competent international and regional intergovernmental organisations, to 'promote, as appropriate, economically viable alternatives for tobacco workers, growers and, as the case may be, individual sellers'.