This post was written by Juan Miguel Litvachkes, O’Neill Institute Research Assistant and National University of Cordoba Abogado (JD Equivalent) Candidate ’14. It was edited by Daniel Hougendobler. For more information about this post, please contact firstname.lastname@example.org.
The Framework Convention on Tobacco Control (hereinafter FCTC) was adopted by the 56th World Health Assembly in May 2003. Two years later, on 27 February 2005, the FCTC entered into force. It was sponsored by the World Health Organization (WHO) and, in the ten years since its creation, has been ratified by 177 countries, making it one of the most ratified treaties in the world.
The reasons behind the success of the FCTC are its goals, which are focused on the protection and promotion of health as understood by the WHO: the right of all people to the highest standard of health. The FCTC was developed in response to the globalization of the tobacco epidemic. Moreover, the Convention represents a milestone for the promotion of public health and provides new legal dimensions for international health cooperation.
Paraguay, along with other countries in the region, was one of the first to sign the treaty on 16 June 2003. It ratified the FCTC on 26 September 2006. According to Paraguayan law the FCTC entered into force on 25 December 2006. So, it has been seven years since Paraguay should have adopted steps towards the reduction of tobacco consumption. Despite this, Paraguay has failed in the implementation of the FCTC. Moreover, the future for the country’s tobacco companies seems to be promising; Horacio Cartes, current president of Paraguay is the head of the biggest national tobacco company, called Tabacalera del Este.
In this post, I will first highlight how Paraguay has done a little to comply with its international obligations. Second, I will compare Paraguay with other countries in the region which have achieved a better compliance. Moreover, I will point out the case of Argentina, which did not ratify the FCTC, but has done much more to control tobacco than Paraguay. To conclude I will focus on the future of the tobacco industry in Paraguay.
Paraguay has presented two follow-up reports to the WHO (2009 and 2012, with the next one due this year). Both reports showed how little Paraguay has done to fight the tobacco companies. Regarding this, it is important to highlight Paraguay’s non-compliance with Article 11 of the FCTC. Article 11 regulates the packaging and labeling of tobacco products. Some of the measures the State Parties must take include ensuring that the packaging and labeling do not promote tobacco products by any means that are false, misleading, deceptive or likely to create an erroneous impression about the health effects, among other things. Article 11(1)(b) states that each unit packet and package and any labeling of tobacco products must contain health warnings describing the harmful effects of tobacco use, and may include other appropriate messages, among other things.
The Minister of Health enacted Administrative Resolution 296 of 14 May 2009 in order to comply with Article 11. In effect, it would mean that Paraguay would adapt its packaging and labeling rules to the FCTC. As a result, every tobacco product would have one of the following warnings:
Smoking causes lung cancer, emphysema and asthma
Smoking causes stroke
Smoking causes erectile dysfunction
Smoking causes heart attack and hypertension
However, the tobacco industry brought a action alleging that the administrative resolution was unconstitutional because the Ministry of Health had no competence to regulate the FCTC. As a consequence, the Executive branch was interfering in a sphere exclusive to the Legislative branch. The Ministry of Health alleged that according to Article 203 of the Act 836/80, the Ministry of Health could regulate the tobacco labeling and packaging. Despite this defense, the Court found that no internal procedure regulated the FCTC; therefore, the Ministry of Health was not allowed to enact measures against tobacco labeling and packaging. Moreover, the Court said that including such warning messages in violation of the Ministry’s competence was a serious breach In conclusion, to the Court it was not serious that the tobacco products actually kill people; its concern was the warning messages saying so.
Afterwards, the Ministry of Health enacted Decree 4106 of 25 March 2010. Again the tobacco industry brought an action, claiming a violation of the Constitution. As before, the industry succeeded and the decree was held unconstitutional. One of the actions was brought by Tabacalera del Este, the company led by the current President of Paraguay, Mr. Horacio Cartes.
Despite this ruling, Paraguay passed an Act allowing a warning message in the labeling and packaging on tobacco products. But, none of these warnings fulfill the guidelines of the FCTC. For instance, Paraguay does not require that packaging and labeling do not promote a product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions. Moreover, the State of Paraguay does not ensure that the health warnings occupy no less than 30% of the principal display areas. And it does not ensure that health warnings are in the form of, or include, pictures or pictograms.
While Paraguay is not complying with the FCTC, other countries in the region seem to meet the requirements of the convention. As an example, Colombia’s Constitutional Court upheld the government’s right to prohibit all advertising and sponsorship of tobacco products based on the FCTC. Bolivia has created a committee to prevent and control tobacco. Moreover, Argentina—which has not ratified the FCTC—has added warning messages and pictures to the tobacco packages and labels.
According to article 27 of the Vienna Convention on the Law of Treaties states that a State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty. Paraguay should know that failure to comply with the FCTC means an international liability and the arguments used by the Constitutional Court would be useless; the fact that Paraguay does not regulate internal procedures is not a valid argument before international organizations, like the WHO.
The future of Paraguay in tobacco issues is not promising, Cartes will be in power until 2018 and it is hard to think that his government will promote regulations on the tobacco industry; this would mean a direct harm to his own business. The purpose of this article was not to make those who fight for a change in tobacco regulations give up. The real purpose is to alert those who fight for a change in tobacco that in the following years, Paraguay will try to brush tobacco problems under the carpet, but this should not stop the hard work of those who want a world free of tobacco.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.