The tobacco lobby is very active within the European Commission

March 11, 2021

Par: National Committee Against Smoking

Dernière mise à jour: August 6, 2024

Temps de lecture: 16 minutes

A report published on 9 March by the European Public Health Alliance (EPHA) Corporate Industry Observatory (CEO) in collaboration with global tobacco watchdog Stopping Tobacco Organizations and Products (STOP) presents and analyses contacts between tobacco industry representatives and the European Commission in 2019, identifying several tactics used to influence tobacco control policy.

The report, " Targeting the European Commission: The Tobacco Industry's 7 Lobbying Techniques ", reveals the very active tobacco industry lobby. The latter manages to exert influence within several Directorates-General of the Commission through letters, physical meetings and other less well-recorded contacts, due to the Commission's continued non-compliance with the provisions of the WHO Framework Convention. Furthermore, access to administrative documents has revealed the tobacco industry's efforts to influence the EU's tobacco tracking and tracing system and the process of revising the directive on the taxation of tobacco products and the possible revision of the Tobacco Products Directive.

The revisions of the two directives mentioned are likely to adopt measures aimed at reducing the appeal of smoking, particularly among young people, as part of the new European Cancer Plan.[1]The latter, published on February 3, 2021, details the ambition to achieve a tobacco-free Europe by 2040 but also the need for better implementation of the WHO Framework Convention on Tobacco Control (FCTC).

The organisations behind these appeals to documents and this report requested all reports and other notes for the year 2019[2] meetings between the relevant Directorates-General (DGs) and representatives of the tobacco industry (producers, distributors, importers as well as organisations and individuals funded by and/or working to promote the interests of the tobacco industry). The Transparency Unit of the Secretariat-General of the European Commission divided the request into eight separate requests, one for each DG deemed relevant:

- Directorate-General for Health and Food Safety (DG SANTE)

- Directorate-General for Internal Market and Industry (DG GROW);

- Directorate-General for Agriculture and Rural Development (DG AGRI);

- Directorate General for Taxation and Customs Union (DG TAXUD);

- Directorate General for Trade (DG TRADE);

- Directorate-General for Competition (DG COMP);

- Directorate General for Economic and Financial Affairs (DG ECFIN)

- The General Secretariat (SG).

I. Tactics Used by the Industry to Influence Anti-Smoking Policies

The tobacco industry has been interfering in public policy for decades in order to counter tobacco control policies. The report identifies 7 tactics used by the industry to the European Commission in 2019:

Spreading inaccurate information and/or untruths: The tobacco industry promotes research aimed at creating doubts about the scientific consensus on tobacco in order to challenge public health facts. It also conducts studies on its own behalf in order to influence the very content of established knowledge.[3]. A report of a meeting between DG TAXUD and British American Tobacco (BAT), dated 8 October 2019[4] shows how BAT used the results of a study commissioned by the company (carried out by Deloitte/Taj) to support its opposition to any increase in the minimum collection rates under the Tobacco Tax Directive. The conclusion was that any increase in these rates would unduly affect Eastern European countries and increase illicit trade.

Delaying public health measures: Delaying or even preventing the introduction or revision of tobacco control legislation is a common tactic used by the tobacco industry and its allies. Philip Morris (PMI) wrote to DG Santé on 8 March 2019 asking it to “formally delay the introduction” of the track and trace system, arguing that “certain external factors beyond our control (…) could have a negative impact on the successful launch of the system.” The tobacco company claimed that this would result in an increase in illicit trade and, consequently, a loss of revenue.[5].

Positioning yourself as victims in the face of the measures put in place: Tobacco companies often portray themselves as victims, particularly when it comes to smuggling, even though research shows that all the major tobacco companies, which constitute an oligopoly, have been actively involved in the illicit trade for decades.[6]-[7]-[8]-[9]The smuggling argument was for example used by tobacco lobbyists in 2019 in a number of letters and emails to argue against the implementation of the tracking and tracing system.

Attacking the regulatory authorities: In a letter dated 10 May 2019 sent to DG Santé, the European Smoking Tobacco Association[10] criticises DG Santé for refusing to meet with representatives of the tobacco industry on several occasions. It accuses it of "hiding behind a misinterpretation of international obligations, ignoring democratic principles and better regulation by the industry itself".

Tackling third countries: Tobacco companies are very interested in EU trade policy. They see EU free trade agreements with third countries as a great opportunity to expand their market shares, where anti-smoking legislation may be weaker or more easily circumvented. For example, Japan Tobacco International (JTI) met with representatives[11] from DG TRADE and DG GROW on 23 May 2019 regarding eleven negotiations conducted by the EU, whether active, suspended or already concluded.

Promote new products: The tobacco industry is pushing regulators to differentiate between these products and traditional cigarettes, particularly in the context of taxation. Under the current directive, excise duties on e-cigarettes and heated tobacco products are lower than those on traditional cigarettes, and the industry is doing everything it can to maintain this advantage. BAT, for example, in a meeting with DG TAXUD[12], argued that there was no need to revise the directive due to a lack of data on e-cigarettes and heated tobacco products. Pro-vaping organizations, including the French vaping federation FIVAPE[13], also argued against the revision of the directive and against the taxation of their products alongside traditional tobacco products.

Divide the actors and oppose the Commission and the Member States: Tobacco lobbyists try to use the principles of EU law, and in particular the rules related to the functioning of the single market, to counter initiatives by Member States. In this way, lobbyists, together with pro-vaping groups, argue that public health legislation in one Member State distorts competition rules, or means that the EU single market is at risk because products are subject to different rules from one country to another and go against the free movement of goods.

II. The reactions of the European Commission to the industry's demands

The report also examines the Commission's response to industry approaches. While the FCTC, and in particular Article 5.3, is designed to protect against such interference, the report finds that the Commission is struggling to fully implement these measures. For example, it does not limit contacts to what is strictly necessary, it refuses to disclose information and is not fully transparent about its dealings with the tobacco industry. Without such safeguards, the Commission remains exposed to the industry's continued efforts to influence policy in a way that favours the industry.

European Commission struggles to limit contacts with industry

The published documents clearly show that several DGs are not following the FCTC guidelines to limit interactions with industry to what is strictly necessary. The Directorate-General for Health has had the most contact with industry, which is not surprising given its active involvement in tobacco control. The documents indicate that it is the only Directorate-General at its level that ensures that meetings are kept to a minimum. These meetings are usually held in the form of workshops with other stakeholders, in order to avoid a restricted setting with only industry representatives. Meetings between industry and some DGs, notably TAXUD and TRADE, are also recurrent, especially when EU policy and related issues are discussed. On the other hand, in the absence of enforcement of the FCTC safeguards, there is considerable scope for cigarette companies to influence political processes and negotiations related to trade, taxation and public health to their advantage.

The Commission partially or completely refuses the disclosure of information

DG COMP refused access to all identified documents, arguing that the requested documents are part of an ongoing antitrust investigation, in which no final decision has yet been taken. The requested documents would contain information relevant to the investigation and their disclosure could be detrimental to the investigation itself, to future procedural steps that the Commission could take. Furthermore, misinterpreted or distorted information would damage the reputation of the companies under investigation. Corporate Europe Observatory responded to underline the obligation to be as transparent as possible regarding tobacco lobbying under Article 5.3. The organisation explained the purpose of the request and asked for a list of documents. The latter was sent on 4 February 2020 and has not received any response to date.

The Freedom of Information Regulations stipulate that "institutions must refuse access to a document the disclosure of which would undermine the protection of the commercial interests of a natural or legal person, including intellectual property." Several DGs (GROW, TAXUD, SANTE) have redacted or refused to disclose information invoking this provision. This response suggests that the Commission's interpretation of the Freedom of Information Regulations clearly places the economic interests of tobacco companies above those of public health.

DG TAXUD, for its part, consulted the tobacco industry to determine what can be released from their exchanges. The fact that freedom of information requests must depend on the industry's goodwill is deeply concerning and suggests that any truly sensitive information will almost certainly never be allowed to be released.

All the DGs blacked out the documents, making the names of the lobbyists they met illegible, citing the regulation 1049/2001 on personal data and data protection. However, according to the authors of the report, if these lobbyists are trying to influence EU policy in an official capacity and represent the interests of industry, their names should not be considered personal data in these circumstances. Refusing to disclose names makes it impossible to analyse and materialise potential conflicts of interest, as well as to track former Commission employees who may leave to work for a large industry, or vice versa.

Limited transparency of Commission interactions

The freedom of information system falls far short of the proactive transparency promoted by the FCTC and which the European Ombudsman has asked the Commission to implement. Only DG SANTE publishes online information on its contacts with tobacco lobbyists. This concerns meetings attended by these lobbyists in the presence of Commissioners, members of their cabinets and Commission DGs.

The minutes of these meetings are spread across various websites and the meetings with the tobacco industry are not clearly indicated or often listed separately. It is therefore difficult to get an overview without using third-party websites such as Integritywatch.eu or lobbyfacts.eu. Furthermore, transparency alone does not necessarily prevent meetings with tobacco industry representatives from taking place.

The report's members point to the number of phone calls, text messages and WhatsApp conversations that may have taken place and which are not recorded and entered into the Commission's transparency register or covered by freedom of information requests. A message dated 11 December 2019 from the European Cigar Manufacturers Association (ECMA)[14] asks a Commissioner from DG GROW for a telephone exchange in the coming days to "discuss the new EU-SME strategy as well as the ongoing inter-service consultation on the possible revision of the Excise Tobacco Products Directive."

III. Recommendations

The authors of the report propose a number of recommendations to the European Commission that are necessary to protect public policies from tobacco lobbying and help European institutions to cope with the constant pressure from this industry.

The European Commission should ensure that DG SANTE's approach is adopted in all DGs in contact with industry by proactively registering all meetings (including minutes) and correspondence with the tobacco industry and their representatives in a central, easily accessible public register, similar to that maintained in the Netherlands. All meetings that deal with tobacco and concern the interests of this industry should be registered in a central portal covering all DGs and Commission bodies. Such an approach would prevent pressure being put on EU officials via third parties such as federations or wider industry networks, such as Business Europe which has a long-standing relationship with PMI and BAT or front groups like Forest.

Define a clear policy applicable to all DGs on how officials should handle contacts with industry, building on the Dutch model. This implies meetings limited to what is strictly necessary and designed with other stakeholders and not as one-on-one meetings. The 2011 instructions from DG SANTE to officials regarding meetings with the tobacco industry provide a clear basis for rules to apply to all DGs.

The Commission should adapt its current implementation of the freedom of information regulations by recognising transparency around lobbying and the protection of public health as clear aspects of the public interest, which prevail over objections related to so-called personal data and the protection of commercial interests. This would result in a better balance, in terms of transparency, between the protection of commercial interests and the safeguarding of the general interest.