Legal collaboration between countries promotes the implementation of WHO Framework Convention measures

In December 2013, the Melbourne-based McCabe Centre for Law & Cancer (McCabe Centre) signed a Memorandum of Understanding with the WHO Framework Convention on Tobacco Control (FCTC) Secretariat to serve as the first knowledge hub, focusing on litigation. The knowledge hub, with support from the Australian Government, aimed to share Australia’s experience in defending the country’s tobacco industry challenges to plain packaging in 2012 and to provide a framework for legal cooperation with other countries.[1].

The Convention Secretariat has established nine knowledge hubs to date (at least one in each WHO region). These resource centres are tasked with analysing, synthesizing and disseminating knowledge and information to Parties to the Convention on matters within their competence related to the Convention, in accordance with the provisions of Article 22 on “cooperation in the scientific, technical and legal fields and provision of expertise in this field”.

The platforms set up concern not only legal litigation, but also monitoring of the tobacco epidemic, smokeless tobacco, water pipes, taxation, international cooperation, Article 5.3 (promoting good governance and coherence of tobacco control policies, and preventing the tobacco industry from interfering in public health policies), Articles 17 and 18 devoted to tobacco cultivation and the environment and finally Article 12 (prevention and public awareness).

The effectiveness of the resource center in implementing plain packaging around the world

In 2012, Australia became the first party to the WHO Framework Convention to implement plain packaging for tobacco products. It has faced numerous legal challenges to this measure under both national and international law. Some challenges brought or supported by the tobacco industry challenged the challenge to trademark and intellectual property rights, as well as the measure's compliance with trade law and certain investment treaties. All of these challenges have failed, including those brought before the World Trade Organization (WTO), which rejected the last challenge in June 2020. Similarly, all legal challenges brought in countries other than Australia to introduce plain packaging have now been rejected, and 22 other Parties have joined Australia in implementing this measure.

Australia’s experience illustrated a common challenge for all countries in their efforts to implement the FCTC treaty. Since its entry into force in 2005, legal challenges and the fear of legal challenges have often been cited as a barrier to taking action. Since 2010, successive Conferences of the Parties to the FCTC (COP) have mandated work on the relationship between the WHO Framework Convention and trade and investment agreements. The tobacco industry’s efforts to counter and undermine tobacco control measures.

Strengthening a network of legal experts in the field of tobacco control

Through training and workshops, the Knowledge Centre on Legal Litigation has worked with over 100 Parties across all six WHO regions. This includes 19 of the 23 Parties that have adopted plain packaging, as well as many more Parties whose plain packaging laws are under development. The Resource Centre’s international legal training programme has helped over 300 lawyers and government policymakers from low- and middle-income countries address tobacco use and other risk factors for noncommunicable diseases (NCDs). This assistance has focused on legislative provisions that are likely to be challenged, and the approach is cross-cutting and diverse, including provisions that may fall under sustainable development, trade and investment law, and human rights.

The programme thus highlights how FCTC implementation fits into development and NCD agendas, including how many obligations under the Convention constitute cost-effective interventions to address tobacco control and, more broadly, NCDs.

The knowledge centre was thus able to provide participants with key resources and experts (particularly in scientific evidence and specialist areas of law). This was supplemented by the networking of officials and stakeholders from different countries working on similar issues. Other forms of support were also offered in the context of litigation, such as sharing potential responses to the tobacco industry's legal and other arguments. The preparation of texts was also the subject of possible cooperation, as were country experiences that could be shared with others. Thus, beyond plain packaging, the resource centre helped seven Parties defeat the tobacco industry in court. For example, lawyers from the government of Kenya participated in a training programme with supervision from the resource centre's Regional Director for Africa to defend Kenya's tobacco control regulations challenged in court by British American Tobacco (BAT). Kenya won in the High Court, the Court of Appeal and the Supreme Court, with the latter ultimately dismissing BAT’s claims in their entirety. The trained Kenyan officials and the McCabe Centre’s regional director then assisted Ugandan government lawyers, drawing on Kenya’s experience, to successfully defend Uganda’s tobacco control law against a similar lawsuit by BAT Uganda. The Ugandan Constitutional Court found that BAT’s lawsuit was part of a tobacco industry scheme to "thwarting effective framework policies worldwide."

In Sri Lanka, former participants of the training programmes successfully advocated for graphic health warnings covering 80 % of the main surface of the cigarette pack. The size adopted by Sri Lanka at that time was the most stringent requirement in the world for graphic health warnings.

The need for collaboration on the issue of new tobacco and nicotine products

In the 2023 Global Progress Report on the Implementation of the WHO Framework Convention on Tobacco Control, Parties noted the need to intensify training and capacity building in tobacco control. In recent years, new challenges have emerged, such as the COVID-19 pandemic and the increasing prevalence of novel tobacco and nicotine products, which have given rise to new legal challenges. For example, the tobacco industry has filed legal challenges in South Africa following the country’s decision to ban tobacco sales during lockdowns. Parties are also facing litigation over the regulation of novel products. To address this need, the Knowledge Hub is planning more workshops focusing on regional issues and novel tobacco and nicotine products.

All these remedies lead to additional costs, even though funding for the fight against smoking remains insufficient in relation to the issues at stake. Similarly, the international cooperation mentioned in this area, as for other resource centres, is entirely financed by extra-budgetary funds, which are by definition uncertain in the long term.

©Generation Without Tobacco

AE

[1] Clare Slattery, Suzanne Zhou, Hayley Jones, 10 years of the WHO FCTC Knowledge Hub on Legal Challenges: how collaboration facilitates implementation of the WHO FCTC, Tobacco Control, https://doi.org/10.1136/tc-2024-058659