Wilkenfeld Testimony Before the U.S. Department of Health and Human Services Public Hearing on the Framework Convention on Tobacco Control

Statement of Judith P. Wilkenfeld, Director, International Program, Campaign for Tobacco Free Kids Steering Committee, Framework Convention Alliance

Sep. 20 2002

Nashville, TN — Good morning. My name is Judy Wilkenfeld, and I am the Director of International Programs at the Campaign for Tobacco Free Kids. I also serve as the U.S. member of the Steering Committee of the Framework Convention Alliance, on whose behalf I am speaking today.

The Framework Convention Alliance is a coalition of more than 180 groups from over 70 countries working together for a strong Framework Convention on Tobacco Control (FCTC). A majority of the member groups in the Alliance come from developing countries or the countries of Eastern Europe and the former Soviet Union, that are currently bearing the brunt of the global tobacco epidemic. It is their countries who will be most effected by what comes out of the FCTC process, and it is for them that I would like to speak today.

I want to thank the U.S. Department of Health and Human Services for holding this public meeting to solicit comment on the proposed FCTC. The Alliance sincerely hopes that this hearing will lead to a change in the U.S. negotiating posture in the negotiations to one that supports public health over the interests of the tobacco industry.

I will be very frank and say that we have been extremely disappointed with the U.S. negotiating positions so far. Current U.S. efforts to weaken and water down the treaty are not befitting of a great country, nor are they appropriate given the central role that U.S.-based tobacco companies have played in spreading this epidemic. We hope and trust that the U.S. delegation to the FCTC will take this opportunity to undo the damage it has done in the negotiations so far, and work for a strong treaty that protects public health.

The Alliance has identified four key areas of the Chair's text that need to be strengthened if the FCTC is to be effective. These are: 1) conflicts between international trade and public health, 2) packaging and labelling, 3) advertising, and 4) illicit trade in tobacco products. The Alliance has produced a briefing paper on these four issues which contains specific text recommendations. In addition to this testimony, I would like to submit this paper for your consideration.

This morning I would like to confine my remarks to the trade-related aspects of the Chair's text. In addition to this testimony I would like to submit for your consideration a paper on trade issues and the Chair's text that we have prepared in conjunction with Action on Smoking and Health in London.

The Chair's text appears to go to some length to subordinate the FCTC to trade agreements. But the record from previous negotiations shows that only a small number of nations favor this approach, and they have been unable to provide a convincing rationale in support of it. Many country delegations have expressed the view that the FCTC should elevate concern for public health above trade concerns, but their views have been ignored in the current text.

Up until now, the U.S. delegation to the FCTC has been in the minority on this issue. It has continued to oppose efforts to allow parties to the FCTC to create appropriate exemptions for trade in tobacco products, despite overwhelming support for such an exemption by the other countries negotiating the treaty, including many of our major trading partners.

The Administration's refusal to back provisions in the FCTC that prioritize public health over the interests of the tobacco industry is particularly troubling given our nation's role in spreading tobacco-related addiction and death through our foreign trade policies. As many of you may remember, during the late 1980s the U.S. Government used the threat of trade sanctions to force open markets in South Korea, Japan, Thailand and Taiwan. The results, as we now know, were catastrophic. In South Korea, for example, the smoking rate among teenage boys was 18% in 1988 -- a year later, after U.S. cigarette imports were allowed, it rose to 30%. Smoking rates for teenage girls climbed during the same period from 2% to 9%.

The world's most powerful nation should not now be adding to this sordid history by using its diplomatic and economic might to promote the interests of the tobacco industry and add to the tremendous toll in disease and death that tobacco use takes around the world. And, given recent history, we believe that United States has a special responsibility to reverse the damage that its trade policies have inflicted on developing countries by supporting provision in the FCTC that would prioritize public health over commercial considerations. Rather, it should seek to undo the damage that past policies have caused to human health.

The Chair's text fails to include several important proposals that enjoyed widespread support during prior negotiating sessions, including:

  • language reflecting the negotiating Parties' intent to make public health concerns a higher priority than commercial and trade concerns;
  • a commitment by Parties not to promote tobacco product exports or tobacco use in other nations; and
  • a provision acknowledging that action to protect the public from the proven harms caused by tobacco use are justified even in the absence of complete scientific certainty about the effectiveness of proposed remedies and related issues.

If such provisions are incorporated into the FCTC, they would establish an important precedent in international law, and could lead to helpful changes in the way tobacco products are viewed in international trade.

There are three primary reasons why these provisions are needed:

  1. International trade rules are designed to stimulate increased trade and consumption of products. Standards that place a high priority on promoting trade and that impose strict scrutiny on trade-restrictive measures may be appropriate as a general rule when applied to beneficial products. While the tobacco industry and its supporters argue that tobacco products should be treated just like any other "legal product" in international trade, the fact is that tobacco products are not like any other legal product -- they are uniquely addictive and lethal when used as intended, resulting in the death of approximately half of all long-term users. Unlike other risky products that are acknowledged to have some beneficial uses, tobacco use is universally discouraged by governments and health authorities. And unlike products that are harmful under some circumstances, tobacco products are harmful to all users at all dose levels. Rather than being simply "legal," the manufacture, sale, advertising and use of tobacco products are subject to special rules in most nations. Therefore it is entirely appropriate to develop rules that place a higher priority on protecting public health than on promoting trade in tobacco products.

  2. There are ample precedents for the kinds of trade-related provisions that many governments and the public health community are advocating for in the FCTC. There is already a well-established pattern in which broad trade agreements establish general rules, and specific agreements are developed as necessary to address unusual products that do not fit within the general framework. International agreements already are in place to address specific concerns regarding hundreds of products including small arms, landmines, other weapons, narcotic drugs and psychotropic substances, ozone-depleting chemicals, hazardous waste, genetically modified organisms, persistent organic pollutants such as DDT, and endangered species. In the environmental field alone, more than 20 multilateral treaties include trade-related provisions.

  3. Existing international trade rules have stimulated tobacco consumption in many nations and are currently a threat to tobacco control policies. As we know, the tobacco industry has a long history of using international trade agreements to force open restricted markets, drive down tobacco product tariff rates and challenge effective tobacco control measures. While we do not promote protectionism and trade discrimination as tobacco control policies, important measures that are justified on health grounds – large warning labels, bans on misleading descriptors such as "light" and "low tar" – continue to be subject to legal threats by the tobacco industry. Often, a threat by the industry is all that is needed to discourage a nation from enacting an innovative tobacco control policy. Very few nations wish to become involved in complex international trade disputes. This "chilling effect" is already substantial and is likely to grow in light of the trend in trade agreements toward giving private companies a right to of action independent of any national government. Currently, for example, the Canadian government is considering a proposal to prohibit the use of misleading descriptors such as "light" and "low tar" but Philip Morris has threatened to use its independent right of action under NAFTA Chapter 11 to sue the Canadian government if it moves ahead with its proposal. Tobacco companies have virtually unlimited funds available to bring international trade actions designed to thwart effective tobacco control measures, and have shown a willingness to do so if given the opportunity. There is therefore no justification for building this weakness into a treaty that aims to promote health.

Because of these reasons, we would like to recommend five specific changes in the Chair's text as it relates to trade issues. They are:

  1. The deletion of Article 2.3. The fundamental rules governing conflicts that arise when parties are subject to two inconsistent treaties are (a) lex specialis -- treaties of a specific nature take precedence over treaties of a general nature; and (b) lex posterior -- the later in time treaty prevails. For reasons discussed above, there is no reason to override these rules to make the FCTC subordinate to all other agreements, as Article 2.3 would do.

  2. The deletion of Article 4.5. This provision effectively subordinates the FCTC to trade agreements and subordinates concern for public health to concern for non-discrimination in tobacco trade. Non-discrimination in trade is an important value as it relates to trade in beneficial products. However, with respect to trade in tobacco products, public health must be the paramount concern.

  3. The deletion of article 15.2. This provision would make it a higher priority to avoid discrimination in tobacco product trade than to establish effective measures to secure more than $25 billion in government revenue, save lives from tobacco use and tackle organised crime, money laundering and terrorism.

  4. The addition of a ‘non-interference' clause and language that asserts the supremacy of the FCTC in conflicts related to tobacco between parties to the FCTC. Such language was put forward by Thailand and Oman during the second negotiating session and enjoyed widespread support but for some reason has been omitted from the current Chair's text.

  5. The inclusion of the inclusion of language stating that lack of full scientific certainty regarding the impacts of tobacco or the efficacy of specific tobacco control measures should not be used as a reason for postponing such measures or for challenging tobacco control measures taken by other States. This approach is already incorporated in numerous multilateral environmental agreements, including the Rio Declaration on Environment and Development, Cartagena Protocol on Biosafety and others.

United States support for these changes in the Chair's text would raise our standing in the international community and help to erase the shameful period in our nation's history when the U.S. government put the interests of the tobacco industry ahead of that of global public health.

Thank you.

 

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