by Allan Brandt
Vice President Dan Quayle candidly expressed U.S. policy on the matter in 1990:Tobacco exports should be expanded aggressively because Americans are smoking less. . . . We’re not going to back away from what public health officials say and what reports say. But on the other hand, we’re not going to deny a country our export from our country because of that policy.69
Quayle’s comments simply made explicit what was already clear: the Bush administration would support trade regardless of the public health implications. “We do not see why the U.S. should necessarily set the global public health agenda,” said Adam Bryan-Brown, an R.J. Reynolds spokesperson. Trade representatives and industry executives alike continued to argue that opening new markets merely created new competition among brands, not new smokers.70
In 1990, the General Accounting Office (GAO) investigated the USTR’s policies regarding the export of American tobacco products and concluded that there was a discrepancy between the USTR’s actions to open new markets and U.S. health policies regarding domestic and international tobacco control. The GAO also documented that the Department of Health and Human Services was given no role whatsoever in the formulation of trade policy, even on issues that carried significant public health concerns.71 Surgeon General Koop drew attention to these contradictions in the early 1990s:The inconsistency between U.S. tobacco trade policy and U.S. health policy increasingly is obvious and denounced in the international health community. . . . At a time when we are pleading with foreign governments to stop the export of cocaine, it is the height of hypocrisy for the U.S. to export tobacco.
Koop later decried the role the government had played in expanding tobacco markets. “I think the most shameful thing this country did was to export disease, disability and death by selling our cigarettes to the world. . . . What the companies did was shocking, but even more appalling was the fact that our government helped make it possible.”72
The companies had a long and successful history of opposing tobacco control initiatives in the developing countries. Their strategy included establishing ties to agricultural and finance ministers in developing nations, emphasizing the economic significance of tobacco, creating resentment about the “imposition” of controls, and attempting to shift authority over tobacco from the WHO to more sympathetic agencies, specifically within the United Nations. These massive and well-financed campaigns took full advantage of the industry’s lobbying and public relations expertise, honed through its long history of fighting regulations in developed nations, to derail the recommendations of health ministries. The tobacco companies fomented opposition, secretly funded “independent,” third-party groups representing local and international leaf growers, and infiltrated UN group processes.73
Industry representatives repeatedly castigated WHO efforts at tobacco control as paternalistic and intrusive. While WHO sought to develop transnational regulatory initiatives, the multinational companies insisted that tobacco policies must be handled at the discretion of individual governments. As British American Tobacco asserted in 1982:As far as smoking and health issues are concerned, it must be up to individual governments, which have, of course, sovereign rights over their policies, to state how they wish such matters to be handled. . . . Commercial, marketing and regulatory practices vary widely from country to country. We believe that to attempt to impose practices which suit one country on other countries with very different cultural, economic and social circumstances would be irrelevant, impertinent and do little service to the cause of North-South understanding.74
The companies constantly reiterated their basic premise that smoking was a matter of individual choice. Third world governments did not need paternalistic public health crusaders determining tobacco policies for their citizens. Management consultant George A. Dalley argued in a private 1984 memo that
Philip Morris should be unapologetic about its advertising and promotion activity in the third world. There is something patronizing about the WHO approach to smoking and health in the third world. WHO assumes that people must be saved from demon tobacco by their governments; that they can’t be trusted to make personal decisions about whether or not to smoke. People in the West, despite increased government intervention, make these decisions all the time, and third world leaders generally resent the implication that they and their people must be protected. Since smoking is often associated with increased affluence, there is the further resentment that part of the lifestyle towards which people in the third world are striving is, by some arbitrary judgment, being made unattainable. Thus nationalism and aspiration for development and a higher standard of living will lead third world governments to resist the efforts of the do-gooders from WHO to impose a smokeless society upon them.75
Going a step further, Dalley described how the industry vigorously sought to invent a new image as a responsible and progressive participant in international commerce and development:WHO pins the blame on the multimillion dollar tobacco companies for promoting smoking and views with alarm the development of new markets by international corporations such as Philip Morris.
In this context, Philip Morris needs to be involved in the international debate on the impact of smoking on health and in efforts to defend its ability to market product in new, developing markets. But beyond this, I believe it would be useful for the company to raise its profile as a responsible international corporate citizen. There is an existing opportunity for the leadership of the company to identify Philip Morris with issues of paramount concern to the so-called Third World, such as the impact of current economic trends in the industrialized world upon the future of their own development, the international debt crisis, trade, the arms race and others.76
These leadership initiatives never strayed far from the primary goal of weakening tobacco control efforts. To coincide with the World Health Conference on Tobacco OR Health held in Argentina in 1992, for example, Philip Morris operatives planned a publicity campaign to refocus public attention on AIDS. A letter from a local British American Tobacco representative to the executives organizing this campaign makes the company’s intentions clear:Please find enclosed herewith draft with the actions to be developed in conjunction with PM [Philip Morris] in orther [sic] to weaken the 8th World Conference on Tobacco or Health. . . .
AIDS CAMPAIGN PROPOSAL
The object will be to scatter the public attention payed [sic] to the Conference and refer it to the AIDS subject, bearing in mind that nowadays Argentina is quite concerned and threatened with AIDS than any other epidemic disease.
Being the disease of the century and a preventive disease, AIDS should be ‘public enemy No. 1’ because of its terminal consequences at every age.
Facing the AIDS increasing importance in the world and in Argentina we believe this disease to be the sole matter capable of eclipsing the conference.77
By the early 1990s, it had become apparent that the considerable progress international health efforts had made in improving life expectancy through disease prevention and better nutrition might be completely undone by cigarettes. In response to this threat, WHO began to direct new attention to the health impacts of tobacco. In 1995, the World Health Assembly, WHO’s governing body, began an inquiry into the possibility of an international treaty on tobacco control. The investigation assessed strategies for developing international standards of tobacco control; ways to assist national governments in developing domestic legislation; and the need for an international mechanism to counter the influence of the multinational industry. In May 1996, the World Health Assembly unanimously passed a resolution calling for the director-general to develop a framework convention (a form of multilateral treaty) for tobacco control under Article 19 of the 1948 WHO constitution, which states that WHO “shall have the authority to adopt conventions and agreements with respect to any matter within the competence of the organization.”78
The idea of such a treaty marked the return of international law, after almost a century of neglect, to matters of public health. Internation
al health diplomacy and protocols date back to the mid-nineteenth century. In 1851, the first International Sanitary Conference was held to develop approaches to stem the ongoing epidemics of smallpox, cholera, and yellow fever, which posed a major impediment to international commerce. The initiatives developed from the Sanitary Conference were intended to harmonize public health protocols among European nations and establish international standards for disease surveillance. In this period prior to the development of modern therapeutic regimes, public health was widely regarded as a critical element of international diplomacy and trade.79
WHO was established in 1948 with a sweeping mandate: “the attainment by all peoples of the highest level of health,” with health ambitiously defined as “a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity.” The WHO charter explicitly included a treaty-making authority, and it was envisioned that this function would be central to the organization’s programs. But as of the early 1990s, this capacity had never been deployed. World health initiatives came to center on control of infectious disease: delivery of immunizations and antibiotics, and access to primary health care.80 This priority was not surprising given that in the immediate postwar period, new antibiotics, vaccines, and other measures appeared to offer unparalleled opportunities to stop infectious disease in its tracks. When the organization invoked its legislative powers, it was generally to support efforts to eradicate infectious diseases through International Sanitary Regulations (later renamed International Health Regulations), which mandate that nations report cases of yellow fever, cholera, and the plague. These legal initiatives, though important, were not in sync with the changing landscape of international health and the rise of chronic noninfectious diseases like cancer and heart disease in the third world, formerly of concern only for wealthier countries. This health transition would ultimately force WHO to confront tobacco. Historically, public health had not had the tools to prevent the chronic diseases associated with tobacco use, but now these noncommunicable diseases were among the most prominent causes of disability and death.81
The notion of developing an international treaty for tobacco control was first broached in the early 1990s by Ruth Roemer and Allyn Taylor, American legal scholars with strong interests in health and international law. Roemer had extensive experience in tobacco control issues, and Taylor had fashioned an important argument concerning the need for additional capacity in international public health law. Having floated the idea with WHO staff and tobacco-control advocacy groups, Taylor and Roemer were asked to develop a more fully articulated proposal in 1995.82 Their manuscript apparently met with mixed reactions in WHO’s upper echelons. Some considered it unrealistic, impractical, and overly ambitious, and preferred a nonbinding “code of conduct” to an international treaty. But Derek Yach, the new WHO chief of the Policy Coordination Committee and executive director of noncommunicable diseases and mental health, became a powerful advocate for developing a binding multilateral agreement.
Yach was a physician and public health authority whose tobacco control efforts had met with considerable success in his native South Africa. In the early 1980s, he had written an account of health and economic impacts of smoking in South Africa that the Medical Research Council, where Yach worked, refused to publish, fearing industry retribution. Yach submitted it to the South African Medical Journal, where it appeared in 1982. By 1988, he had assisted in the preparation of a special tobacco issue of that journal—an important breakthrough in national antitobacco efforts and a major influence on South Africa’s turn to a more proactive tobacco control policy. Between 1993 and 2000, cigarette consumption in South Africa would decline by 20 percent. Yach knew from this early work that tobacco control required the integration of multiple disciplines: “You need the right combination of science, evidence, and politics to succeed,” he said in a 2003 interview. “If you have one without the other, you don’t see action.”83
At WHO, Yach sought to bring “best practices”—often modeled on U.S. grassroots activities—to the Tobacco Free Initiative. He was especially influenced by the state initiatives in California and Massachusetts, the two leading U.S. programs, where aggressive antitobacco advertisements were coupled with school-based education, workplace bans, and cessation programs.84 Further, a number of countries developed national tobacco control programs that confirmed the efficacy of such interventions on a mass scale. In Poland, for example, under the leadership of physician Witold Zatonski, smoking rates among men dropped from over 60 percent in the late 1970s to 40 percent in 2000. Zatonski credited the Massachusetts program as his model.85 In Thailand, where Greg Connolly also provided advice and expertise, new public health initiatives—motivated in part by the U.S. trade actions—led to a reduction in rates of smoking from over 26 percent of adults to 20.5 percent between 1992 and 1999.86 Nations as diverse as Uganda and Ireland passed smoke-free workplace laws despite corporate opposition.87 Antitobacco activists, public health officials, and nongovernmental tobacco control organizations now made up an active international network galvanizing activities in countries around the globe.
As this community’s influence grew, support for a formal treaty grew as well.88 With the election of Gro Harlem Brundtland, former prime minister of Norway, to the director-generalship in 1998, WHO became considerably bolder, especially in efforts directed at noncommunicable diseases and the politics of public health. As Brundtland explained in 2002, “I needed to move the global health agenda much more closely to the development debate, on to the tables of prime ministers and development and finance ministers, not just the health ministers.”89
In addition to dedicating WHO to an “evidence-based” approach that would evaluate public health initiatives for “efficacy,” Brundtland brought a reformist agenda to an organization widely regarded as being in disarray. Richard Smith, editor of the British Medical Journal, had described WHO as “top heavy,” “over centralized,” and “smelling of corruption.”90 Extensive cronyism had compromised its technical expertise. Brundtland had to reform WHO’s administration at the same time that she refocused its resources on the systemic, chronic diseases now increasingly significant in the developing world. She possessed a deep commitment to the authority of scientific and medical expertise and was not afraid to tackle health issues where commerce and public health might collide.91 Tobacco control soon rose to the top of her priorities. In 1999, following the approval of the World Health Assembly, formal negotiations began to develop a Framework Convention on Tobacco Control (FCTC). Brundtland established a working group to assist in drafting the treaty. At each step, the likelihood of some agreement seemed increasingly feasible, especially given the strong commitment of the upper echelons of WHO administration.92
A framework convention is a complex multilateral agreement that enunciates core principles and policies. These approaches would then be implemented by national legislation and policy initiatives among those who ratify the framework and become “party” to the convention. Most framework conventions of the late twentieth century dealt with environmental issues that were outside the control of individual nations. Climate change, ozone depletion, and environmental pollution—addressed in the Kyoto, Montreal, and Barcelona Conventions—were all problems that required collective policies among nations. As a result, these agreements were fashioned to assign collective responsibilities for mitigating these shared burdens.93 A central issue of the FCTC was whether tobacco could justify this collective approach. The multinational tobacco companies and their allies contended that tobacco restrictions did not meet this international criterion for common action and should be dealt with exclusively on a nation-by-nation basis. In response, the treaty’s advocates directed attention to supranational issues, such as the relationship of taxation to cigarette smuggling, and the “leakage” advertising between nations with strict controls and those without restrictions. Unilateral attempts by nations to control tobacco use were likely to fail, given th
e companies’ aggressive multinational marketing efforts and the WTO’s insistence on treating tobacco as a “conventional” product. Tobacco, treaty advocates argued, constituted a risk that could be mitigated only through international collaboration. 94
The drafting of the convention by the Intergovernmental Negotiating Body (which met six times between 2000 and 2003) took many complex turns. Among the most contentious issues were how binding the advertising and other promotional restrictions should be. American negotiators took the position that such restrictions were unconstitutional. Another concern was that the new treaty would conflict with existing trade agreements, raising questions about the legitimacy of regulatory restrictions, such as those on advertising and promotion. A number of delegations sought language to clarify that the framework convention would take precedence; the United States, Germany, and Japan opposed this measure. With the support of Philip Morris, the U.S. negotiators worked to assure that trade agreements would have priority. The American representatives also objected to a proposed system for tracking and tracing cigarette packages in order to combat smuggling, an important source of profit for the industry because such cigarettes go untaxed.95