At its sixth session in Moscow, Russia in 2014, the COP adopted the decision to examine the impact of the WHO FCTC ten years after its entry into force.1 The COP established an Expert Group to assess and examine the impact of the WHO FCTC on implementation of tobacco control measures and on the effectiveness of its implementation in order to assess the impact of the Convention as a tool for reducing tobacco consumption and prevalence after its first 10 years of operation.
The Expert Group’s impact assessment report presented at the seventh session of the COP in 2016,2 relied upon global evidence of scientific studies by the International Tobacco Control (ITC) Project, commissioned reports, government documents and missions to 12 WHO FCTC Parties selected across each of the World Bank-classified income groups and the WHO regions.
The report of the Expert Group found that there had been ‘significant gains’ (para 92) in tobacco control since the entry into force of the WHO FCTC, with the WHO FCTC :
- providing an impetus and plan of action for the implementation of effective tobacco control policies;
- contributing to smoking prevalence reduction in countries where the treaty has been implemented at high levels and consequently also reduced mortality and morbidity;
- helping to galvanise multisectoral engagement outside of health sector;
- serving as an important support and reference in the defence of legal challenges brought by the tobacco industry;
- promoting government, NGO and civil society collaboration;
- increasing awareness of tobacco industry interference; and
- generating activity at UN, global, regional and national levels. (para 252)
19.9.1 WHO FCTC and broader global governance frameworks
The critical role of the WHO FCTC has been recognised beyond the ambit of tobacco control regulatory and normative frameworks and within broader Non-communicable Disease (NCD) governance agendas. The 2011 Political Declaration of the High-level Meeting of the General Assembly on the Prevention and Control of NCDs (paras 8 and 43(c)3) enshrines a commitment to accelerate implementation of the WHO FCTC by States Parties, encourages non-Parties to consider becoming a party to the treaty, and recognises the fundamental conflict of interest between the tobacco industry and public health. This commitment was reiterated in the Outcome Document of the 2014 High-Level Meeting of the United Nations General Assembly on the comprehensive review and assessment of the progress achieved in the prevention and control of NCDs4 and in the 2018 Political Declaration of the Third UN High-Level Meeting on NCDs.5
Implementation of the WHO FCTC has also been recognised as playing an integral role to the attainment of global sustainable development within broader global development frameworks. Entering into force on 1 January 2016, the 2030 Agenda for Sustainable Development — adopted by the United Nations General Assembly in September 2015 by Member States including Australia — consists of seventeen Sustainable Development Goals (SDGs) including Goal 3a of the 2030 Agenda for Sustainable Development which calls for strengthened implementation of the WHO FCTC in all countries as appropriate. 6 The Addis Ababa Action Agenda, the outcome document of the Third International Conference on Financing for Development to support implementation of the SDGs, expressly identifies strengthened implementation of the WHO FCTC by Parties to the Convention and the need to support mechanisms to raise awareness and mobilize resources.7
19.9.2 WHO FCTC and Trade and Investment Agreements
The tobacco industry routinely claims that tobacco control measures breach the provisions of international trade agreements. The World Trade Organization is the central multilateral body dealing with the rules of international trade. Over the last few years, tobacco control measures have been the subject of WTO dispute proceedings with claims invoking WTO’s Technical Barriers to Trade (‘TBT’) Agreement, the General Agreement on Tariffs and Trade (‘GATT’) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), including a WTO challenge to Australia’s tobacco plain packaging laws brought by Cuba, the Dominican Republic, Honduras, and Indonesia. On 28 June 2018, the panel hearing the WTO dispute dismissed all of the claims by the complainants, finding that tobacco plain packaging is not more trade-restrictive than necessary to protect public health and does not violate any relevant international obligations regarding intellectual property. The panel also concluded that tobacco plain packaging is ‘apt to, and does, contribute’ to its public health objectives.8 Honduras and the Dominican Republic have appealed the decision to the WTO Appellate Body.
Claims have also been brought under international investment law agreements against countries seeking to implement tobacco control measures, including a challenge to Australia’s tobacco plain packaging measures. On 17 December 2015, an arbitral tribunal hearing a challenge by Philip Morris Asia against Australia’s tobacco plain packaging laws under a 1993 Australia – Hong Kong Bilateral Investment Treaty (‘BIT’) issued a unanimous decision agreeing with Australia’s position that the tribunal had no jurisdiction to hear Philip Morris Asia’s claim. The tribunal found that a corporate restructure undertaken by Philip Morris after the Australian Government had announced its intention to introduce plain packaging was carried out for the principal, if not sole, purpose of gaining protection from the Australia – Hong Kong BIT. As the restructure occurred when there was a reasonable prospect that the dispute under the Australia – Hong Kong BIT would materialise, the initiation of the arbitration constituted an abuse of rights.9Subsequently, on 8 July 2016, an arbitral tribunal dismissed an investment treaty challenge brought by Philip Morris Switzerland under a Switzerland — Uruguay BIT against Uruguay’s tobacco packaging laws (graphic health warnings covering 80% of the front and back of packaging and a single presentation requirement for tobacco products).10The tribunal held the measures under challenge did not constitute an expropriation of Philip Morris Switzerland’s investments, did not deny fair and equitable treatment, and were a valid exercise of Uruguay’s sovereign right to regulate for public health. For more information on the case, please see: http://www.mccabecentre.org/downloads/Knowledge_Hub/McCabe_Centre_paper_on_Uruguay_award.pdf
International trade and investment agreements provide regulatory space for bona-fide, non-discriminatory public health measures, including tobacco control measures outlined in the WHO FCTC, as recognized in case law interpreting the agreements8, 10-15 and confirmed in a range of international instruments. The right of governments to regulate in the interests of public health within the context of international trade and investment agreements finds expression in the WHO FCTC and decisions of the COP. In its Preamble, the WHO FCTC states the determination of its Parties ‘to give priority to their right to protect public health’. Under Article 2.2 of the WHO FCTC, the Parties agree that they may enter into other bilateral or multilateral agreements on issues relevant or additional to the Convention, provided that such agreements are compatible with their obligations under the Convention.
In the ‘Punta del Este Declaration’ adopted at COP-4, the Parties reaffirmed their ‘firm commitment to prioritize the implementation of health measures designed to control tobacco consumption in their respective jurisdictions’, declaring their concern regarding actions taken by the tobacco industry that seek to subvert and undermine government policies on tobacco control.16 The Punta del Este Declaration recalls relevant exceptions provided to the obligations of Parties to the World Trade Organization (WTO) agreements, and recognises that ‘measures to protect public health, including measures implementing the WHO FCTC and its guidelines fall within the power of sovereign States to regulate in the public interest’.
At its seventh session, in the context of trade and investment issues pertaining to implementation of the WHO FCTC, the COP noted recent tribunal decisions affirming the sovereign right of States to adopt public health measures on tobacco control; recognised that measures to protect public health, including those implementing the WHO FCTC and its guidelines fell within the sovereign powers of the State; and considered the importance of safeguarding regulatory space for public health objectives when entering into trade and investment agreements. The COP called for coordination and cooperation between health and trade/investment departments, including in the context of trade and investment agreement negotiations, and requested the Convention Secretariat, in cooperation with WHO and the relevant Knowledge Hubs, to collect, document and inform Parties on practices to promote and safeguard public health measures under trade and investment agreements and on recent relevant developments and decisions of international fora and tribunals regarding measures implemented by Parties in compliance with the WHO FCTC and its guidelines.17
1. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Impact Assessment of the WHO FCTC: Decision of the Sixth Session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, FCTC/COP6(13). Moscow, Russia, 13—18 October 2014. Available from: http://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6(13)-en.pdf.
2. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Impact Assessment of the WHO FCTC: Report by the Expert Group. FCTC/COP/7/6. Delhi, India, 7−12 November 2016. Available from: http://www.who.int/fctc/cop/cop7/FCTC_COP_7_6_EN.pdf?ua=1.
3. Sixty-sixth session of the United Nations General Assembly. Political declaration of the high-level meeting of the General Assembly on the prevention and control of noncommunicable diseases, A/RES/66/2. New York. 19 September 2011. Available from: http://www.who.int/nmh/events/un_ncd_summit2011/political_declaration_en.pdf.
4. Sixty-eighth session of the United Nations General Assembly. Outcome document of the high-level meeting of the General Assembly on the comprehensive review and assessment of the progress achieved in the prevention and control of noncommunicable diseases. A/RES/68/300. New York. 10 July 2014 Available from: http://www.who.int/nmh/events/2014/a-res-68-300.pdf.
5. Seventy-third session of the United Nations General Assembly. Political declaration of the third high-level meeting of the General Assembly on the prevention and control of non-communicable diseases - Time to deliver: Accelerating our response to address non-communicable diseases for the health and well-being of present and future generations. A/RES/73/2, 10 October 2018.
6. Seventieth session of the United Nations General Assembly. Transforming our world. The 2030 Agenda for Sustainable Development.ARES/70/1. New York. 2015. Available from: https://sustainabledevelopment.un.org/post2015/transformingourworld/publication.
7. United Nations. Addis Ababa Action Agenda of the Third International Conference on Financing for Development. Addis Ababa, Ethiopia. Available from: https://sustainabledevelopment.un.org/content/documents/2051AAAA_Outcome.pdf
8. Australia – Certain measures concerning trademarks, geographical indications and other plain packaging requirements applicable to tobacco products and packaging, report of the panel (WT/DS 435/441/458/467). World Trade Organization, 28 June 2018.
9. Philip Morris Asia Limited v Commonwealth of Australia, Award on Jurisdiction and Admissibility (PCA Case No 2012-12, 17 December 2015).
10. Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay (ICSID Case No ARB/10/7, Award, 8 July 2016).
11. Appellate Body Report, European Communities – Measures affecting asbestos and asbestos-containing products (‘EC — Asbestos’), WT/DS135/AB/R (12 March 2001).
12. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (‘Brazil — Retreaded Tyres’), WT/DS332/AB/R (3 December 2007).
13. Panel Report, Thailand – Restrictions on importation of and internal taxes on cigarettes (‘Thailand-Cigarettes’), DS10/R – 37S/200 (adopted 7 November 1990).
14. Chemtura Corporation v. Canada (Award), 2010 (IIC 451).
15. Methanex Corporation v. United States of America (Award), 2005 (44 ILM 1345).
16. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Decision FCTC/COP4(5)—Punta Del Este Declaration. 6 December 2010. Available from: http://apps.who.int/gb/fctc/PDF/cop4/FCTC_COP4_DIV6-en.pdf.
17. Conference of the Parties to the WHO Framework Convention on Tobacco Control. Draft Decision, Trade and investment issues, including agreements, and legal challenges in relation to the implementation of the WHO FCTC, Second Report of Committee B, FCTC/COP/7/B/R/2 Delhi, India, 11 November 2016. Available from: http://www.who.int/fctc/cop/cop7/FCTC_COP_COMMITTEE_B_2.pdf?ua=1.