The Cigarette Century

by Allan Brandt

  As negotiations continued through the change of U.S. presidential administrations in 2001, the chief U.S. negotiator involved in the process, Assistant Surgeon General Thomas Novotny, a career civil servant and a Public Health Service expert on tobacco control, found himself under serious pressure to weaken previously held positions supporting tobacco control. White House representatives had demanded that he now oppose limitations on terms like low-tar and lights that the National Cancer Institute had previously deemed to misrepresent the risks of cigarettes. The Bush administration pushed him to demand that the agreement permit any nation to “opt out” of any particular protocol, a proposal that would have rendered the convention meaningless.96 Administration officials also instructed him to oppose key provisions on taxation and advertising, to argue that controls on exposures to secondhand smoke must be voluntary, and to oppose restrictions on public smoking that were already widely accepted in the United States. “The positions that we had developed, which were headed in the right direction, we had to reverse in midstream, almost in mid-sentence,” he later explained. “It was horrible. I felt devastated.”97

  Novotny resigned, joining a small but growing contingent of individuals who had bravely stood up to the powerful interests of Big Tobacco and their allies in government.

  Congressman Henry Waxman, a major supporter of stronger restrictions on the industry and a close observer of the FCTC process, accused the Bush administration of undertaking “a breathtaking reversal in U.S. policy—going from global leader on tobacco control to pulling back and advocating the industry’s positions.” Waxman wrote directly to Bush, asserting, “I have received evidence that the U.S. is seeking to undermine world efforts to negotiate an international agreement to reduce tobacco use.”98 Although the United States eventually voted in the World Health Assembly to support the treaty, there was little doubt that the Bush administration had worked hard to undermine it.99

  As the convention-building process went forward at WHO, the major tobacco companies took additional countermeasures. Philip Morris hired a public relations firm, Mongoven, Biscoe & Duchin (MBD), to evaluate their liabilities and offer strategies as the framework convention process moved forward in the late 1990s. MBD had achieved fame during the Nestlé boycott in the 1980s by helping Nestlé respond to international sanctions while continuing to aggressively market its controversial infant formulas throughout the world. Following in the historic footsteps of Hill & Knowlton, MBD now offered to play a vital role in fighting off tobacco regulations. Eager to get the full attention of management, MBD’s sales pitch to Philip Morris stressed the high stakes for the industry:As currently proposed and drafted, the framework convention will provide the means to eradicate the tobacco business worldwide. To shape an agreement into an acceptable program to safeguard minors would require a long-term (five to seven years) strategy involving considerable money, resources and executive commitment. . . . WHO is in the fight with substantial resources, unshakeable determination and powerful allies. It also has all the emotional issues on its side—health, children, women, the poor and a host of others.100

  As a result of these concerns, MBD proposed approaches for influencing the process in the industry’s interest.

  Examination of the draft text will help Philip Morris anticipate the potential protocols that the framework convention will create. The history of framework conventions shows that successful weakening of the language of an article in the framework convention can be easily undermined by the protocol process. The potential protocols are more important to the company in the long-term than the framework convention itself.101

  Therefore, Philip Morris should remain an engaged participant in the process so as to co-opt and weaken the treaty:Aside from delaying the adoption of a convention the company is best served by participating in the development of the agreement. It would be in the company’s best interest to have the treaty focus entirely on protecting children and leaving adult choice protected.102

  Philip Morris’s strategy should be to inhibit consensus and disrupt the negotiations:Keeping in mind the need to make any treaty more costly than no treaty, proposals can be surfaced which assist many developing countries but which seriously harm others. Resolution of such issues is time consuming and often embittering. . . . The vast majority of the countries participating in the code development process are motivated solely by self-interest and the assumption of that principle should underlie every strategy the company adopts.103

  As MBD recognized, self-interest was a motivation with which the tobacco industry’s executive elite could easily identify.

  Much of the documentation WHO used in its investigation of the industry came from the litigation in the United States. The availability of these internal memoranda, reports, and letters revealed not only industry strategy for the promotion and marketing of cigarettes, but also the intensity and scope of its efforts to undermine international tobacco control initiatives. The U.S. litigation had, in this way, served the interests of international efforts for tobacco control. With these materials in hand, Brundtland’s resolve to push ahead with the FCTC was redoubled.104

  The final version of the FCTC closely followed the format of other recent international environmental agreements. A lengthy preamble expressed the particular concerns that gave rise to the treaty:• The dramatic increase in worldwide tobacco consumption;

  • The escalation in smoking and other forms of tobacco consumption by children and adolescents;

  • The impact of all forms of advertising, promotion, and sponsorship aimed at encouraging tobacco use.

  The framework seeks to bring all nations into a shared tobacco-regulatory regime that sets stringent universal standards of control. These standards are minimums: signatories are invited to pursue additional restrictions. “Nothing in these instruments shall prevent a party from imposing stricter requirements that are consistent with the provisions and are in accordance with international law.”105 The convention explicitly drew upon the public health initiatives that had over recent decades been shown to have a positive impact on the prevention and reduction of cigarette use. Among the measures the convention endorses are:• Taxes: To reduce demand, taxes ought to be raised to both cover tobacco-related health costs, as well as increase the price of cigarettes, keeping in mind the importance of price to underage customers. Duty-free sales ought to be reduced or banned.

  • Disclosure: Tobacco manufacturers shall be required to disclose ingredients.

  • Labeling: Health warnings must cover at least 30 percent of cigarette packaging.

  • Terms such as light, low-tar, and mild are considered misleading and ought not appear on tobacco products. These terms were banned in a previous draft; it is now at the discretion of each country whether to ban them.

  • Education: Each country must promote and strengthen public awareness of tobacco control issues, using all available communication tools.

  • Public Restrictions: Countries ought to develop national laws and encourage regions and municipalities to develop laws to protect nonsmokers from smoke in public places, including workplaces, public transportation, and restaurants.

  • Advertising: Each country ought to enact a comprehensive ban on tobacco advertising, sponsorship and promotion, including cross-border advertising.

  • Cessation: Each country shall take effective measures to promote tobacco cessation and ensure adequate treatment for tobacco dependence.

  • Smuggling: As an antismuggling measure, each cigarette pack must be marked to show both the exporting and importing countries.

  • Youth: To reduce sales to minors, each country must prohibit the distribution of free tobacco products, as well as the sale of individual cigarettes or small packs of cigarettes, both of which increase afford-ability. Tobacco products may not be sold in any place where they are directly accessible to minors (vending machines, store shelves). Candy, snacks, and toys that resemble tobacco products (i.e., candy cigarettes) may not be manu
factured or sold. All vendors must ask for proof of age for tobacco purchases.

  • Litigation: Countries are encouraged to consider tobacco litigation to recover damages.

  These provisions are both general and modest. The model of the framework convention recognizes that nations are more likely to ratify treaties setting out broadly shared principles than those containing specific mechanisms of implementation and enforcement. Nonetheless, the FCTC offers an important consensual basis for the development of more aggressive and significant protocols that might ultimately provide a balancing force against the current global-trade regime.106

  The ultimate test for the FCTC will be in the collision with the free-trade regimes of the World Trade Organization. After considerable debate during the drafting process, the final text is silent on the inevitable conflicts between public health restrictions and trade liberalization. In their original 1995 proposal, Taylor and Roemer contended that according to the Vienna Convention on the Law of Treaties, an international tobacco control treaty would supersede the WTO since subsequent multilateral agreements take precedence over previous international accords. Although a joint study of the WHO and WTO, issued during FCTC negotiations, asserted that the WTO recognized human health as “important to the highest degree,” this recognition has yet to be put to any concrete test.107

  Even the WTO was forced to admit that the sale of tobacco products entails many market failures and inefficiencies. In the developing world, there is inadequate information and education about the health risks of tobacco use or its highly addictive qualities. And the harms imposed on nonsmokers add still more social costs. Nonetheless, tobacco use is defined nearly everywhere as a “lifestyle” issue and an essentially voluntary behavior. This view remains largely unchallenged in the administration of WTO, the North American Free Trade Agreement (NAF TA), and other important trade agreements.108 In Canada, for example, tobacco companies cited NAFTA in their successful efforts to scuttle a law requiring plain packaging of cigarettes. Philip Morris claimed that proposals to remove light and mild from packaging violated NAFTA and WTO rules on Technical Barriers to Trade and Intellectual Property because such restrictions could be interpreted as eroding trademarks.109 The WTO negotiations on corporate services (under the General Agreement on Trade in Services) has the potential to sharply curtail the ability of governments to protect their citizens from commerce in tobacco products.110

  Under the WTO—as under GATT—anyone advocating restrictions faces a heavy burden to demonstrate scientifically not just the health impact of a dangerous product like the cigarette, but also the efficacy of any proposed regulations. Anticipating possible free-trade objections, WHO worked to ensure that the protocols of the FCTC would be based on scientific evidence of their effectiveness. 111 Although the FCTC did not explicitly urge that tobacco be excluded from free-trade agreements, this was nonetheless the implicit motivation underlying its development. “It would be anomalous for the nations of the world to identify tobacco control as a major global health priority,” explained one legal scholar, “justifying several years of multilateral negotiations, only to conclude that tobacco products should in fact be subject to the normal trade rules.”112 According to this view, it was crucial that dangerous products, like cigarettes, be treated as an exception in trade agreements: “This distinction between a beneficial product and a harmful one essentially turns the traditional presumption in favor of free trade on its head with respect to tobacco.”113

  Although the final version of the treaty was derided as “feeble” and “meaningless,” Derek Yach emphasized the procedural success of establishing a framework. “We will not achieve this goal if the Framework Convention is too stringent, contradicting fundamental political and legal realities in each country, and requiring too much from the first stage of a multistage process. . . . A framework convention cannot go further than the political will of the negotiators at a given time. This process will continue to unfold and mature after the adoption of the Convention.”114 The FCTC, in other words, establishes only the basic foundation for subsequent efforts. Even following its ratification, tobacco control and regulation will face formidable obstacles throughout the world. As Yach recently noted in a series of pointed questions:How do we move fast from adoption to ratification and full implementation of the FCTC? You need to push daily and weekly for countries to act.

  How do we interact with tobacco companies and the investment community as new products are developed?

  How do we access funding for governments and NGOs that already exists but is not being requested?

  How do we popularize the next era of tobacco control measures needed to move faster ahead: from plain packaging to tax financed health promotion programs to locally effective counter marketing?

  How do we work with farmers in poor countries and have them be advocates for tobacco control?

  We need to find ways to get the rate of decline to reach 5-10% per year, not the feeble 1-2% it is in some countries today.115

  The FCTC would offer a procedural basis for systematically addressing these questions, but Yach’s formulation explicitly recognizes that tobacco control will achieve no dramatic, precipitous victory.

  On May 21, 2003, the 192 member nations of WHO unanimously adopted the FCTC, WHO’s first-ever multilateral treaty. Brundtland noted, “Today, we are acting to save billions of lives and protect people’s health for generations to come. This is a historic moment in global public health, demonstrating the international will to tackle a threat to health head on.” Matthew Myers, president of the Campaign for Tobacco-Free Kids, went even further, claiming, “This treaty is the closest thing we have to a vaccine against tobacco-caused death in the developing world.”116 After more than a half-century, the organization had exercised its mandate for promoting public health law through its treaty-making power.

  These long-standing advocates of the treaty were not the only ones expressing support. Tommy Thompson, the U.S. secretary of Health and Human Services, said, “This is an outstanding day when you can stand up and make a step forward for public health.” Although the United States was reluctant to support the treaty over the years of negotiations—indeed, the U.S. vote had been uncertain the night before—Thompson now was effusive in his praise and eager to remind the assembly that the United States was a world leader at home in antismoking efforts. Even Philip Morris seemed eager to show that it had turned over a new tobacco leaf and become a “responsible corporate citizen.” Mark Berlind, associate general counsel for the company, said, “What we hope and expect is that this treaty can be a catalyst in every country that signs on for meaningful and effective treatment of tobacco.” Since the FCTC would require the ratification of forty countries to take effect, such posturing had little immediate cost.

  The apparent unity masked ongoing and intense conflicts about the marketing and use of tobacco products.117 The critiques were drafted even before the waiters had cleared away the wine glasses from the closing reception. First, the industry argued that the FCTC imposed Western ideas of health on the rest of the world. Martin Broughton, chairman of British American Tobacco, had complained in 2000 that the FCTC was a “developed world obsession being foisted on the developing world,”118 and he and his allies now took up this attack again. Under the Brundtland directorship, they charged, WHO had strayed from its essential mission of protecting individuals in poorer nations from the principal threats to health—which in their view meant communicable diseases. This argument was perhaps most effectively voiced by the British philosopher Roger Scruton, who wrote an extensive criticism of the FCTC in 2000. “It cannot be the function of a health bureaucracy,” he wrote, “to cure us of such self-imposed risks,” a category that included rugby, football, cycling, and horseback riding as well as smoking. For Scruton, tobacco use was not a health problem but simply a question of “lifestyle” outside the purview of medicine, public health, and certainly regulation. His assault on WHO offered a sophisticated amalgam of ol
d saws and nouveau, anti-PC chic.

  By a semantic trick, Mrs. Brundtland and her team have been able to classify as a dangerous disease what is in fact, a voluntary activity and a source of pleasure, the risk of which falls entirely on the smoker. . . . Big tobacco is an easily demonized opponent, and one currently as defenceless as a chained and baited bear.119

  Scruton’s attack on the FCTC could not have been more forceful if he were working for the tobacco industry itself. And it soon came to light that this supposedly independent intellectual was in the employ of Japan Tobacco, one of the world’s largest producers and exporters. In an e-mail to his handlers leaked to the Guardian, Scruton had sought a bump in salary: “We think we give good value for money in a business largely conducted by shysters and sharks.”120 No doubt he was the best philosopher Big Tobacco could buy. Scruton quickly learned that taking tobacco money on the sly could have repercussions for a professional pundit. The Financial Times and Wall Street Journal both severed their ties with him after his financial arrangements were made public. But his activities were in no way unusual. The tobacco companies have a long history of acquiring the services of intellectuals and cultural elites as part of their long-term strategy to influence public discourse and debate.121 In any event, in the industry’s concerted effort to disrupt the FCTC, Scruton was a bit player.

  British American Tobacco, in a statement rife with historical irony, sought to portray the FCTC as an act of Western colonialism:A clumsy pursuit of global standards can become a form of moral and cultural imperialism, based on assumptions that “west is best.” Imposing western priorities, or “global solutions” that force the values and priorities of any one country on another, can become a new form of colonialism.122