A further example of the role of the WHO FCTC in Australian tobacco control policy is the ‘Guidance for Public Officials on Interacting with the Tobacco Industry’ published by the Australian Government Department of Health and Aged Care in November 2019 (Guidance).1 The Guidance interprets Australia’s obligations under Article 5.3 of the WHO FCTC and their implications for the practice of Australian public officials.
As detailed in Chapter 19, Section 19.3.3 Protection from tobacco industry interference (Article 5.3), Article 5.3 of the WHO FCTC requires public officials to protect public health policies with respect to tobacco control “from commercial and other vested interests of the tobacco industry”. This section provides a brief overview of the Guidance, including the scope of its application and the content of the obligations place on public officials when interacting with the tobacco industry.
19.12.1 Scope of the application of the Guidance
The Guidance applies to “public officials”, which is “an official, representative or employee in a Commonwealth government agency, body or entity” that is “acting on behalf of any branch or level of government”, including contractors and consultants. Examples of public officials include a Member of Parliament or their staff, an Australian Public Service officer, a statutory authority employee, an Australian Defence Force member and an officer representing Australia overseas.
The Guidance states a “public health policy” in relation to tobacco control constitutes “any general tobacco control policy or program” that improves population health by reducing tobacco prevalence. This includes strategies, regulation or policies to reduce tobacco supply and demand, eliminate or reduce tobacco consumption or exposure to tobacco smoke; consumer law and competition policies; taxation, excise and price programs; trade facilitation; licensing arrangements; and law enforcement strategies and activities in relation to illicit tobacco.
The Guidance recognises that the requirements of Article 5.3 for Australia extend to new and emerging products, such as e-cigarettes and heated tobacco products. This is due to the increasing integration between the tobacco industry and manufacturers of e-cigarettes and heated tobacco products and is supported by a decision of the Sixth Conference of Parties, which invited Parties to consider taking measures to: “protect tobacco-control activities from all commercial and other vested interests related to ENDS/ENNDS, including interests of the tobacco industry”.2
19.12.2 Content of obligations placed on public officials when interacting with the tobacco industry
The Guidance refers to Australia’s 5 January 2015 communication to the UN Secretary General, where Australia declared its understanding that it ‘should interact with the tobacco industry only when and to the extent strictly necessary to enable [it] to effectively regulate the tobacco industry and tobacco products, and should ensure that any such interactions are conducted transparently’.3 According to the Guidance, this means the tobacco industry should not be able to influence the implementation of tobacco control measures and policies, and that consultation with the tobacco industry should be limited to what is necessary to enact effective tobacco control measures. Wherever possible and unless prohibited by law, any consultations should be public, accountable and transparent, and high-level information about the interaction may be disclosed on the relevant agency website. Further, the Guidance states that agencies should ensure staff members are aware of Article 5.3 of and recommends incorporating the Guidance into staff induction materials.
The Guidance recognises that the level of tobacco industry interaction and appropriate management of those interactions will vary between agencies. The Guidance notes that for some agencies, interactions would be highly unusual. Such interactions would require a high level of attention to the Guidance, suggesting, for example, that:
- a minimum of two officials should be present in any meeting or interaction, including email correspondence;
- information about the meeting or interaction should be recorded, including at a minimum the date, location, nature and method of the interaction, names of parties involved, matters discussed, decisions taken and any proposed follow up activity; and
- officials should not agree to side meetings, accept invitations to social events or hospitality, or engage in any interaction that creates the perception of partnership or cooperation.
Other agencies may be required to interact with the tobacco industry in order to effectively regulate them. For such agencies, the Guidance notes that interactions should be limited to those necessary, that agencies should be mindful of disguised objectives or disguised links to the tobacco industry, and that staff are aware of article 5.3 and interactions out of the ordinary are monitored. The Guidance also provides that the following obligations apply to Australian public officials when interacting with the tobacco industry:
- avoid all real and perceived conflicts of interest with respect to the tobacco industry, which involves declaring any current, previous or proposed connection with the tobacco industry, including by a close family member;
- carefully scrutinise and treat with caution any information that is offered by the tobacco industry outside of its required legal disclosures;
- reject partnership of any kind and limit interactions with the tobacco industry;
- avoid granting preferential treatment to the tobacco industry, including accepting contributions, providing tax exemptions, granting benefits, giving awards or engaging with foreign government representatives of state-owned tobacco interests; and
- be cautious of any claims about the tobacco industry’s corporate social responsibility.
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References
1. Officials on Interacting with the Tobacco Industry. Canberra: Australian Government Department of Health, 1 November 2019. Available from: https://www.health.gov.au/sites/default/files/2023-05/guidance-for-public-officials-on-interacting-with-the-tobacco-industry.pdf.
2. Conference of the Parties to the WHO Framework Convention on Tobacco Control (Sixth Session). Decision on Electronic Nicotine Delivery Systems and Electronic Non-nicotine Delivery Systems, FCTC/COP6(9), 18 October 2014. Available from: https://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6(9)-en.pdf.
3. Australian Government. Declaration with regard to the Declaration lodged by the Czech Republic upon its ratification of the WHO FCTC on 1 June 2012. 5 January 2015. Available from: https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IX/IX-4.en.pdf.