Tackling Big Tobacco: The Establishment of the Framework Convention on Tobacco Control

An interview with Derek Yach

Derek Yach shepherded negotiations over the Framework Convention on Tobacco Control, the first global health treaty negotiated through the World Health Organization (WHO), which was adopted in May 2003 and came into force in February 2005. He established the Tobacco Free Initiative at WHO and during the tenure of WHO Director-General Gro Harlem Brundtland served as the agency’s Executive Director of Noncommunicable Diseases and Mental Health.

Yach is currently a professor at the Yale School of Public Health, and head of the school’s Division of Global Health. He is co-editor of the online journal Globalization and Health.

Derek Yach: It is an international treaty in the genre of treaties that address the environment, human rights and international weapons control. It binds countries to initial action and then creates a structure to move to more specific protocols, which would involve more specific action for tobacco control.

The FCTC was born out of the recognition that even if countries adopt the best national policies, they would still be subject to considerable cross-border advertising, marketing and other international influences. A treaty therefore was thought to be the best means of both galvanizing global support for tobacco control in general, but more specifically to address the cross-border and transnational aspects of tobacco control.

MM: Where did the idea come from?

Yach: A little known Russian researcher in 1970 first raised the issue in a WHO technical report on smoking and health about the need to consider an international treaty to address the transnational aspects of tobacco control.

That stayed pretty dormant until Allyn Taylor, who was then a young lawyer, looked at WHO’s general involvement in international law and felt under guidance of her mentor at the time, Ruth Roemer, that the case should be made for a formal convention to deal with tobacco control. She published the proposal in the Yale Law Review.

The idea would again have remained dormant, but the Canadian government, together with a group of NGOs [nongovernmental organizations], then raised it in 1994 at the World Conference on Tobacco or Health. The Canadian government held a number of initial meetings in 1995-1996 which led to a resolution of the World Health Organization Executive Board in 1996, saying that this is something that needs to be worked on.

When Gro Harlem Brundtland came in as director-general of the World Health Organization, she recognized that working on a convention would give a higher focus to tobacco control. From then on, the machinery for treaty negotiation was set in process.

MM: How was the treaty negotiated?

Yach: Like all treaties, it was the product of a negotiation between governments. Over the course of a five-year period, there was first a period of working groups for people to get to know each other — to understand the scientific and technical issues at stake, what works and doesn’t work from a political, economic and technical feasibility point of view — and then they moved to six rounds of formal negotiations. Each of the formal rounds was preceded by regional meetings in Africa, the Middle East, the Pacific and so on, where governments would prepare their positions in a smaller grouping of anywhere between 10 and 50 countries. Then the formal negotiations would happen in a mixture of plenary and working groups that were called for seven to 10 days.

MM: What was the industry role in the negotiations?

Yach: We’ll never be sure. We know that they were ever watchful and in fact from 1998, when the first decision was made to appoint Brundtland, the industry documents make clear that Philip Morris, BAT and others worked hard to see whether they could preempt the FCTC by offering some voluntary concessions, particularly in the area of marketing.

That was formally offered to WHO through BAT. Brundtland declined to comment or even respond to the request.

During the same period, we recognized that the best way of dealing with industry was to carry out an inquiry into the way the industry had subverted WHO policy in the past. This was a unique project for a UN agency to undertake. It was carried out by a Committee of Experts. The four-person inquiry included David Kessler, who was head of the U.S. Food and Drug Administration (FDA) and then dean at Yale School of Medicine and eventually dean at the University of California, San Francisco; Anky Martiny, who was nominated by James Wolfensohn to represent the World Bank, and came from Transparency International Germany; Fazel Randera, who was Nelson Mandela’s physician, and Inspector General of Intelligence in South Africa; and it was headed by Tom Zeltner, who was head of the Swiss federal health department and also a lawyer.

Their findings were based upon the documents from the state of Minnesota litigation against the industry and from other litigation. The expert committee was able to show that there had been a conspiracy since the early 1980s to try to ensure that the WHO didn’t establish a strong international tobacco control program.

The publication of the expert committee’s report led to regional reports and a number of national reports. These all helped, we believe, to put the industry on the defensive and helped governments realize that they need to be very wary of industry involvement in their delegations.

We also had public hearings, to which we invited all interested parties, including the industry, to give their views on the Convention.

Most countries were able to watch and ensure that their delegations were free or had limited undue influence from industry.

Those countries that have an ownership stake in the tobacco business, either because they have a monopoly, like the Chinese government, or the Japanese government which owns a major stake in Japan Tobacco, had industry spokesmen as part of their legitimate government delegation. That created a kind of two-tiered situation; for those countries that own part of the industry, they were fulfilling their sovereign right as a government to bring industry as part of their delegation.

Finally, it should be pointed out that in the wings there were many fringe industry groups throughout the negotiating period. The duty-free stores were the most well organized — trying to make sure that the issue of duty-free sales didn’t get too much attention.

MM: How did you overcome opposition and obstruction from countries that were more sympathetic to industry interests, including especially the United States?

Yach: With R.J. Reynolds selling its international division to Japan Tobacco, the U.S. only really had one major multinational, Philip Morris, with of course the biggest brand in the world, Marlboro.

I think Philip Morris recognized fairly early on that because of two factors — their investments in R&D, and the massive global recognition of Marlboro as a brand — having a higher regulatory authority and global law would probably protect their market share and their future investments in new product development. So they were less fearful.

From about 2000, they probably went relatively quiet in terms of lobbying the U.S. government.

When you read some of the documents, Philip Morris actually argues that the U.S. government is now to the right of their position in supporting many of the elements of the treaty. They explained that they were supporting parts of it because it would help them maintain market share.

In other countries, like Japan, the internal dynamics were changing. The finance ministry, which owned Japan Tobacco, was starting to perform badly; the Japanese economy was under pressure; and at the same time the labor and health departments merged to become a mega department, with for the first time the power to take on the finance ministry. In that bigger set of issues in Japan, the tobacco and finance lobby had actually weakened relative to the rest.

There were some small countries which remained super vulnerable throughout the process. We’ll never be sure exactly how the industry used them. We suspect that BAT plays a continuing role in Pakistan, for example; we suspect that there are countries like Bulgaria that remain under the sway of Philip Morris; and the Dominican Republic, whose president was the head of Dominican Republic Philip Morris, continues to be obstructive. Cuba, with a strong historical interest in tobacco, also remained obstructive.

But it is interesting that in the end it remained relatively small countries that were the main opponents. Germany, however, was one big problem throughout and remained difficult within the European Union. Germany stood out even against Greece and Spain, where historically you would have thought there would be some opposition — but in the end they weren’t too strong in opposition.

Turkey was the very first country to express its concern about the treaty privately. I was at an extraordinary dinner with Brundtland, where the Turkish ambassador and the Turkish trade representative tried during the course of the dinner to say: Don’t put this on the table, it’s not going to be necessary, we know that the companies can actually address this in a voluntary way given the chance. Turkey remained a bit obstructive, until two years into the negotiations, when the government changed and then they also changed their view.

MM: How did you mobilize the political will within the WHO to push the FCTC through to completion?

Yach: The most important thing was having Brundtland come in and think very deeply during her transitional period about the kind of problems that would attract international support to the agency and would allow her to do business in new ways. She chose malaria and tobacco as her pathfinder projects, and I was privileged to head the Tobacco Free Initiative.

We knew that we had two different roles in heading both of these initiatives: to address a major public health problem in ways in which we were explicitly told to be innovative, and to cut the usual bureaucratic nonsense. Work on malaria would focus particularly on the needs of sub-Saharan Africa with its severe under development; work on tobacco would focus on almost all of the other countries of the world.

We did not anticipate in the beginning that the strongest support and the most effective lobbying group would come from the African governments themselves — they were supposed to be so afflicted with malaria and AIDS that they wouldn’t regard tobacco as an issue.

In fact, it turned out that they very clearly saw the argument that, since they are so afflicted with malaria and AIDS and TB, why should they have an additional risk imposed upon them from outside.

I think we were able to do a number of things. One was to have the head of an agency say that there are no restrictions on what you need to do to get the job done. That meant that we as a secretariat could go out and work with litigators, with international lawyers, trade lawyers, NGOs, the pharmaceutical industry and the philanthropy community.

Ted Turner had just created the UN Foundation and we were one of the first recipients of funding. We directed that immediately to create a cadre of NGOs and sparkplugs in the media around the world using a fairly hard-hitting campaign, one that WHO had never used before, going explicitly after a corporate sector, which WHO also had never done before.

Within the United Nations, we had a little bit of a tussle, but we wrestled controlled of tobacco from UNCTAD [the UN Conference on Trade and Development]. We were then able to get uniformity across the IMF, the World Bank, FAO [Food and Agriculture Organization], WHO, UNICEF and ultimately report to Kofi Annan that the central issue of tobacco control for the UN was demand reduction, and that supply issues should be seen only as secondary.

Once we did this, it meant that FAO came on board and would no longer support any farming or loans related to tobacco. The World Bank during the process then was stimulated to develop their reports on the economic dangers of tobacco for economies, which played a very important role. UNICEF for a short, fleeting moment was supportive and worked with us to produce a report on the rights of the child and how tobacco is anathema to the rights and implementation of the rights of the child.

And then I would say that the other thing is that Brundtland was willing to go to the pharmaceutical and private sectors and make the case that she was not anti-private sector — as the tobacco industry had painted her — but she was anti-one specific sector, that is, the tobacco sector. And that is why we deliberately launched the pharmaceutical partnership with the smoking cessation firms at the World Economic Forum.

MM: What are the key provisions in the Framework Convention?

Yach: On the demand side, there is a ban on advertising and all forms of marketing to the limits countries’ constitutions permit. There are only two big countries where there is a serious constitutional issue: the U.S. and Germany.

There is a provision for increased warning labels, up to 30-50 percent of the pack size.

There is a provision for increased taxation, where the provisions are not specified in quantitative terms but they are clearly there.

There are provisions on access to smoking cessation, education, surveillance, information and so on.

On the supply side, there are provisions controlling illicit trade and smuggling and trying to control and reduce sales of cigarettes to children.

The most important thing to be highlighted was the need for comprehensiveness and that the more the individual components you bring together, the greater the impact.

The second thing that it recognized was that the transnational aspect needed attention on the positive as well as the negative side. So on the positive side, there is the sharing of knowledge information, and standardized surveillance systems. The global youth tobacco survey is now measuring in a standardized way smoking in 13-15 year-olds in 164 countries around the world, and some of the surveys are into their second or third round.

MM: With the FCTC entering into force, does momentum remain on the side of tobacco control forces?

Yach: Around the world, there are more and more stories of activism and progress, courage and leadership in an area of public health that no longer make headlines.

One key area is the spread of smokefree legislation. Starting this year, for example, all pubs and restaurants in New Zealand are smokefree. I recently was in Ireland where I enjoyed Guinness in a smokefree pub on St Patrick’s Day — an experience quite unthinkable just a few years ago. Ireland went smokefree in 2004.

The Irish have responded to smokefree areas as the people of California and New York City have. They are smoking less in all settings, and even smokers now support the ban. I have no doubt that the New Zealand ban will lead to a similar response. And so will Norway, Australia, Canada and other countries and communities who are introducing comprehensive bans on smoking in public places.

On the other hand, governments and international agencies run the risk of becoming complacent. For many, the FCTC is done, tobacco control has an answer and the rest will follow. Nothing could be more dangerous than that premise.

In fact, if we are not alert and active, the FCTC could turn into yet another treaty gathering dust in ministries and academic institutions around the world.

The global network of NGOs under the umbrella of the Framework Convention Alliance is cash starved.

Worse, tobacco companies are now being patted on the back for being socially responsible, as was the case with BAT at the World Economic Forum in Davos last January.

Internet advertising and sales of tobacco products have increased. Satellite television ads for tobacco continue to be beamed from countries with no laws to those with strong laws. Yet there has been no significant progress in formulating the technological, legal and political basis for a protocol to address cross-border advertising.

MM: What do you see as the next round of cutting-edge policy interventions to reduce tobacco-related death and disease?

Yach: Plain packaging for cigarettes should be a top priority. Fifteen years ago, a Canadian panel of experts concluded that “plain and generic packaging of tobacco products through its impact on image formation and retention, recall and recognition, knowledge and consumer attitudes and perceived utilities would likely depress the incidence of smoking uptake by non-smoking teens, and increase the incidence of cessation by teen and adult smokers.”

In my discussions over the last few years with investment analysts working on tobacco, they have often highlighted the importance of the pack and point of sale as being crucial to the tobacco industries’ profitability. So bans on point-of-sale advertising — already in effect in Saskatchewan, Canada — should be a second priority area.

If both the pack and point-of-sale advertising were curtailed, the loss to brand value would be considerable. In health terms, that means we would have less tobacco use and less death.

The pack and the point of sale will be the final battleground over images. Without the imagery, the color and the associated features, a Marlboro or any popular brand will be less appealing, and that will have an impact on youth initiation.