This post was written by Sam Byfield, a Senior Policy Advisor (LiveLighter) at the National Heart Foundation of Australia (Western Australia), and an Associate of the Nossal Institute for Global Health at the University of Melbourne. For questions regarding this post please contact firstname.lastname@example.org.
On 27 February, the Framework Convention on Tobacco Control will celebrate its 10th anniversary. This milestone provides an opportunity to survey some of the FCTC’s achievements, and its broader significance in global health law and governance. Tobacco is responsible for 6 million deaths each year and the impoverishment of millions more, and accordingly the use, interpretation and contestation of the FCTC is fundamentally important not only to global health but to development and human rights more broadly.
The FCTC was adopted by the World Health Assembly in 2003, and entered into force in 2005. The FCTC and its protocols aim to ‘protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke’. The Convention has shown that the law is a crucial battleground in the protection and promotion of public health. While the term ‘framework convention’ was initially understood as a means to establish a ‘general system of governance’, from its conception the FCTC contained detailed provisions and strong obligations in a broad range of areas including protection from exposure to tobacco smoke (article 8), packaging and labelling (article 11) and advertising, promotion and sponsorship (article 13). As Jonathan Liebermann has argued, understanding that the FCTC is a ‘real’ treaty – a ‘powerful, legally binding instrument of international law’ – is fundamental to harnessing its potential.
The most recent FCTC Global Progress Report was published in 2014, and provides a valuable snapshot of progress and challenges. The report notes that since adopting the FCTC, nearly 80% of Parties have developed or strengthened tobacco control legislation, and that implementation of the Convention has progressed steadily, with the average implementation rate now approaching 60%. The report details a range of positive developments in countries at different levels of economic development, with highlights including: the establishment of over 1000 mobile courts in Bangladesh that can issue fines and jail sentences for smoking violations and illegal advertising; divestment of government funds in tobacco industry investments in Australia and Norway; and declarations of intent to achieve tobacco free status by countries including Finland, Ireland, New Zealand and the Pacific region.
The Progress Report also highlights the relationship between the FCTC and trade and investment agreements. In 2014, Australia and Uruguay experienced ongoing international legal disputes concerning implementation of tobacco packaging warnings; and a coalition led by the Malaysian Government and supported by 45 attorneys general of US states and territories sought to have tobacco excluded from trade agreements, including the Trans Pacific Partnership. The tobacco-trade nexus highlights a broader truth about tobacco control – the need for multisectoral engagement in both policy and law.
A crucial point made in the Progress Report, however, is that gaps remain between the resources available and the needs assessed for FCTC implementation. These resources take several forms, including human resource capacity, drugs for treatment of tobacco addiction, financing for research and surveys, and for mass media and other campaigns. The tobacco industry’s ongoing use of legal challenges to prevent, delay or weaken implementation of tobacco control measures was also noted. These barriers highlight a failure by the international community to fully address one of the Convention’s guiding principles: ‘international cooperation, particularly transfer of technology, knowledge and financial assistance and provision of related expertise.’ This is notably the case in low and middle income countries, which are increasingly targeted by the tobacco industry and continue to experience major shortages in funding and capacity to address this market infiltration.
I would argue that an important next step in global tobacco control is increased support by bilateral and multilateral aid donors, and other aid stakeholders, for a range of measures to support tobacco control measures and build capacity; as part of broader efforts to address NCDs. While the architecture around tobacco and NCDs has improved dramatically over the past decade, this has not yet led to a commensurate funding increase. As the Institute for Health Metrics and Evaluation recently demonstrated, while in 2011 $7.7 billion of international health aid was allocated to HIV/AIDS – and malaria, TB, and maternal, newborn and child health received $1.8 billion, $1.3 billion, and $6.1 billion respectively – NCDs received only 1.5% of the overall health aid pie. HIV/AIDS – which kills about 1.5 million people annually, or ¼ the mortality associated with tobacco – received 113 times the $68 million allocated to tobacco.
As I’ve written about elsewhere, the aid agenda remains a largely untapped avenue for reducing tobacco use in developing countries, and preventing and controlling the diseases it causes. Useful starting points for donors wishing to contribute to achieving the goals of the FCTC might include: research into the impact of tobacco use and effectiveness of prevention programs; training in legal and policy responses to NCDs (the McCabe Centre’s receipt of funding from the Australian Government for its training of policy and legal professionals is a good example); and funding for health ministries and other tobacco control stakeholders including civil society. There is also scope for the integration of tobacco control or broader NCDs initiatives into existing aid activities, including maternal and child health, youth, health promotion, HIV and other communicable diseases, health systems strengthening, and advocacy.
The FCTC has provided evidence of the powerful role the sometimes-maligned WHO can play in global health. Criticised by some as failing to adapt to a changing landscape, the FCTC (along with the International Health Regulations) has demonstrated the unique role the WHO can play in driving legal and normative change, and brokering consensus. Accordingly, there are strong arguments for increased funding for the WHO to perform these core functions.
At the High Level Meeting on the Prevention and Control of NCDs in 2011, 193 UN member states committed to ‘accelerate implementation’ of the FCTC, since reducing tobacco consumption is an integral strategy to addressing NCDs. The FCTC has expanded our understanding of what’s possible in global health law and governance, and serves as a model for what the next frontiers of global health law and governance might look like. In particular, two lines of thought are emerging that offer great promise for the next decade: a Framework Convention on Obesity, and the broader concept of a Framework Convention on Global Health. These agendas are still evolving, but ongoing reference to the lessons from the FCTC’s development and implementation will be vital to maximising the effectiveness of global health law and governance in the twenty first century.
The views reflected in this blog 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.