Status of the tobacco product tracking and traceability system

Author: Luk Joossens, consultant for Smoke Free Partnership Translation carried out by the National Committee Against Smoking

The Protocol to Eliminate Illicit Trade in Tobacco Products

This Protocol is the first protocol to the WHO Framework Convention on Tobacco Control (FCTC). It constitutes a new international treaty in its own right. It was negotiated by the Parties to the FCTC and was adopted by consensus on November 12, 2012 at the fifth session of the Conference of the Parties (Seoul, Republic of Korea, November 12-17, 2012). It came into force on September 25, 2018.

• The objective of the Protocol

The objective of the Protocol is to eliminate all forms of illicit trade in tobacco products. To achieve this objective, it aims to secure the supply chain of tobacco products through a series of measures. It requires the establishment of a global tracking and tracing regime within five years of its entry into force, including national and regional tracking and tracing systems and a global information sharing point located within of the Secretariat of the Framework Convention.

• Status of the Protocol

The first session of the Meeting of the Parties (MOP1) to the Protocol was held from 8 to 10 October 2018, the second MOP from 15 to 17 November 2021. A third session is scheduled for 27 to 30 November 2023 and is expected to take decisions regarding the global focal point for the exchange of information.

• Protocol Outlook

Eliminating the illicit tobacco trade globally has the potential to increase tax revenues and reduce overall tobacco consumption. Based on 2007 data, the total tax revenue lost from the illicit cigarette trade has been estimated at approximately $40.5 billion per year. If this illicit trade were eliminated, governments would gain at least $31.3 billion per year and the expected reduction in consumption would be 2 %[1]. A study published in 2020 confirmed that eliminating illicit cigarettes in 36 countries with robust data from independent sources on illicit trade would reduce total cigarette consumption by 1.9 %. The study also confirmed that tax revenues from the legal sale of cigarettes would increase by 11.2 % in these countries[2].

The Protocol’s tracking and tracing system

• Definition

“Track and trace” means the systematic monitoring and reconstruction, by the competent authorities or any other person acting on their behalf, of the route or movement followed by the items throughout the supply chain. (Article 1.14 of the Protocol)

• Objective

The objective of the tracking and tracing system is to secure the supply chain and facilitate investigations into illicit trade in tobacco products (Article 8.1) and to assist Parties in determining the origin of tobacco products , the point of diversion if applicable, and to monitor and control the movement of tobacco products and their legal status (article 8.4.1).

In practice, a tobacco product tracking and tracing system should enable any authorized user to identify the current, past and future location of all tobacco products.

• Obligations of the tracking and tracing system

In accordance with the Protocol, each Party requires that unique, secure and irremovable identification marks, such as codes or stamps, be affixed to all unit packets and any other external packaging such as cartridge packaging.

In addition, each Party requires that information be available, either directly or accessible through a link. This information is intended to help Parties determine the origin of tobacco products, the point of diversion - if any -. They make it possible to monitor and control the movement of tobacco products and their legal status. These data are: the date and place of manufacture, the manufacturing unit, the machine used to manufacture the tobacco products, the production team or the time of manufacture, the name of the first buyer who is not affiliated with the manufacturer, invoice number, order number and payment status, market in which the product is intended to be sold at retail, description of the product, storage and shipping of the product if applicable where applicable, the identity of any known subsequent purchaser and the intended route, date of shipment, destination, point of departure and recipient. In accordance with Article 8.4.2, information relating to the date and place of manufacture, the manufacturing unit, the description of the product and the market on which the product is intended to be sold at retail must be part of of the unique identification mark.

The Protocol's tracking and tracing system obligations require the establishment of an international tracking and tracing regime within five years of the Protocol's entry into force, with a "global focal point for information exchange" within the FCTC Secretariat; parties will also be required to establish national/regional tracking and tracing systems.

• Avoiding interference from the tobacco industry

The Protocol clearly defines that obligations assigned to a Party must not be carried out by or delegated to the tobacco industry (Article 8, paragraph 12). Furthermore, Article 8.2 states that the tracking and tracing system is "controlled by the Party" and Article 8.13 that each Party ensures that its competent authorities, when participating in the tracking and tracing regime , interact with the tobacco industry and those who represent the interests of the tobacco industry only to the extent strictly necessary for the implementation of this article.

Tobacco manufacturers have developed their own traceability system called Codentify which results in a visible code printed on tobacco packaging. Codentify was initially developed, owned and patented by Philip Morris International and licensed for free in 2010 to its three main competitors (British American Tobacco, Imperial Tobacco and Japan Tobacco International). In 2016, Codentify's technology and copyright were transferred to a new company, called Inexto, with the aim of displaying independence from the tobacco industry to meet Protocol obligations.[3].

With the exception of the European Union, most Parties have not provided specific information on tobacco industry interference in their respective reports submitted to the FCTC Secretariat in accordance with Article 32 of the Protocol. An internal tobacco industry document on Codentify suggests the industry has developed a strategy to circumvent Article 8 independence requirements[4]. The document states that tobacco companies would license Codentify technology free of charge in a specific market to “credible” third-party vendors who, in turn, would promote Codentify on their behalf.[5]. The Tobacco Control Research Group (TCRG) at the University of Bath has compiled a list of third parties that have promoted Codentify, including ATOS and FractureCode[6]. For governments, it remains difficult to determine which companies represent the interests of the tobacco industry or are truly independent. This is why the EU has adopted criteria for assessing independence in the context of track and trace system operators[7].

EU says its system operates completely independently of industry[8]-[9], but a key criterion is missing. Despite EU guidelines on independence, research by the TCRG found that seven of the eight organizations approved by the EU as data repository providers had pre-existing commercial links with the industry, which in some cases specifically involved the Codentify system[10]. One of the criteria missing from the EU rules is that providers of data storage services and generators of unique identifiers must not have had previous links with the development of track and trace solutions. tobacco industry for at least five years[11].

The organisations that generate the unique identifiers may be linked directly or indirectly to tobacco manufacturers within the EU system. Atos, for example, is the company that generates the unique identifiers in the Netherlands.[12]. This problem exists in other EU countries. In 2016, the Bundesdruckerei, responsible for unique identifiers in Germany, carried out a pilot project on traceability with the main tobacco manufacturers[13].

Tobacco industry interference also exists in other regions - traceability systems in Burkina Faso[14], in Senegal[15], in Mali[16] and in Ecuador[17] are managed by tobacco manufacturers. Ecuador previously used a system run by a company, Sicpa, which offers an independent system. But the country has adopted new legislation which specifies that from April 1, 2022, the importer or manufacturer is responsible for implementing a system of authentication, tracking and traceability of cigarettes. Chad[18] and Ivory Coast[19], both of which had traceability legislation based on Codentify, are in the process of reviewing their systems. Senegal also intends to adopt a new traceability system[20].

An additional means of circumventing the Industry Interference Protocol's restrictions is through the software necessary to generate unique identifiers. Inexto, which focuses on software, says: “ Inexto is a leading provider of software and services for authentication, secure serialization, track and trace, and production volume verification. Our technology already secures more than 100 billion products per year.” In the court case regarding the tender for the track and trace system in Pakistan, Inexto submitted documents in which the company claims that “Inexto has provided or our software supported track and trace or digital verification systems with integrated code databases in over 35 countries »[21]. (These 35 countries include EU countries, Burkina Faso, Ghana and Ivory Coast, as well as third countries such as Mexico and the Russian Federation).

The initial Codentify code was developed so that tobacco companies could access the data stored in the database[22]. Providing software to generate unique identifiers could be the easiest way for businesses to access traceability data. In a digital world, adding functions to software offers companies numerous control possibilities.

In the EU system, tobacco companies pay and choose auditors who must monitor the activities of databases and report access irregularities. External auditors must be approved by the European Commission, but their names and reports are not made public. Inexto's statements that the company provided the software for the EU system should not be taken for granted, but require independent monitoring[23]. The auditors of the European system, appointed by the tobacco manufacturers, probably do not check whether the software of the unique identifiers was developed without the intervention of the tobacco industry or whether it was provided by Inexto.[24]. It is not part of their mandate and is not in their interest to carry out such checks since they have been appointed by tobacco manufacturers.

Interference from the tobacco industry in the generation of unique identifiers can be avoided by not entrusting this mission to the latter, nor to a third party company acting on its behalf. Furthermore, there should be no use of software provided by tobacco companies and their subsidiaries. Software for generating unique identification marks could come, for example, from specialist agencies such as the United Nations International Computing Center (UNICC). UNICC is already working with the Secretariat of the Framework Convention on Tobacco Control on the development of the global information sharing focal point.

• Status of the tracking and tracing system within the Parties

Tracking and tracing systems exist in both Parties and non-Parties to the Protocol. In the Russian Federation, for example, a tracking and tracing system for tobacco products was established in 2019.[25]. The Russian Federation is a party to the FCTC but not yet to the Protocol. In this study, only the tracking and tracing systems of Parties to the Protocol were examined.

As of May 2023, 67 Parties have ratified the Protocol. According to the classification used by the World Bank, 28 parties to the Protocol are high-income countries, 15 are upper-middle income, 14 are lower-middle income and 10 are low-income.[26]The first global progress report found that the current level of implementation of the Protocol in almost all low- and lower-middle-income Parties was rated as low by Parties during the reporting period.[27]. In 2021, a specific FCTC Secretariat survey on tracking and tracing systems found that twenty-three Parties reported implementing a tracking and tracing system, while five Parties responded implementing one. system over the next two years. Most Parties reported that it takes between two and five years to plan and implement a tracking and tracing system. Not all Parties responded to this survey[28].

Information on the characteristics of existing tracking and tracing systems in Parties remains limited. Better knowledge and further evaluation of current systems could lead to better practices and facilitate the establishment of tracking and tracing systems for future Parties to the Protocol. Based on publicly available information, such as survey responses on tracking and tracing systems, reports submitted by Parties to the Meeting of the Parties (MOP)[29] to the Protocol and the overall report on the progress of implementation of the Protocol[30], thirty-seven existing tracking and tracing systems have been identified among the Parties and are classified into the following categories:

a) Track and trace systems based on the EU system :

EU, Austria, Belgium, Croatia, Cyprus, Czech Republic, France, Germany, Greece, Hungary, Lithuania, Latvia, Luxembourg, Malta, Netherlands, Portugal, Slovakia, Spain, Sweden + the United Kingdom (outside the EU, but based to a large extent on EU regulations) (Total: 20 Parties).

b) Tracking and tracing systems based on tax stamps:

Saudi Arabia (De La Rue), Brazil (Ceptis based on Sicpa technology), Egypt[31] (Authentix), Kenya (Sicpa), Mauritius[32] (Holistic India), Pakistan (Authentix, MITAS corporation & AJCL)[33]-[34], Togo (Sicpa)[35], Türkiye (Sicpa), Ghana (De La Rue)[36], Qatar (De La Rue)[37]-[38]. (Total: 10 parts).

c) A variety of other systems, including systems for which there is insufficient public information to classify them:

Burkina Faso (Inexto), Comoros, Ecuador (managed by the tobacco industry), Iraq, Islamic Republic of Iran, Mali (Société nationale des tabacs et Allettes du Mali, Sonatam), Senegal (managed by the tobacco industry ), (Total: 7 Parts).

d) No system or no information in the database on the implementation of the Protocol:

Benin, Cape Verde, Costa Rica, Eswatini, Fiji, Gabon, Guinea, Madagascar, Moldova, Mongolia, Nicaragua, Nigeria, Niger, Paraguay, Rwanda, Serbia, Seychelles, Sri Lanka, Turkmenistan, Uruguay. (Total: 20 Parts).

e) Under preparation and not yet fully operational:

Chad, Congo[39], Ivory Coast, Gambia (Sicpa)[40], Kuwait (De la Rue), India[41], Panama and Samoa. Norway and Montenegro should develop a monitoring system based on EU regulations. (Total 10 Parts)

• The effectiveness of traceability systems at national and regional levels

Tracking and tracing systems should operate at the national, regional and global levels. The objective of the Protocol is to have a global system based on national and regional systems. Tracking and tracing systems should facilitate investigations into illicit trade in legally manufactured cigarettes, not illegally manufactured and unmarked cigarettes. The focus is on controlling legal trade, but illegal manufacturing is not entirely excluded from the scope. Better control of the supply chain (transport, storage facilities and retailers) could help combat illegally manufactured cigarettes.

• National systems

The global system does not yet exist, but the effectiveness of national stamp tax schemes is well described in the literature. The 2011 IARC Handbook on Effective Tax and Pricing Policies for Tobacco Control[42] and the World Bank's 2019 report on combating illicit tobacco trade[43] examined the effectiveness of traceability systems based on enhanced tax stamps in California, Washington, Brazil, Ecuador, and Kenya. They appear effective within certain limits. The Kenya chapter of the World Bank report is very positive in tackling the illicit domestic cigarette trade[44]. National tax stamp systems focus on collecting tax revenue, improving tax administration and controlling the supply chain at the national level. The traceability system works well at the national level, but needs improvement to work at the global level[45]-[46]. The export market is generally excluded from tax stamp schemes unless the export market requests it.

The Philippines, a non-Party to the Protocol, recently extended the use of revenue stamps to exports.[47]. In Kenya, tobacco products intended for export do not bear tax stamps, but are marked in accordance with the legislation of the importing country[48]. Packages falsely exported and re-imported into Kenya can therefore be easily spotted in the Kenyan market[49]. Tax stamp programs generally focus on individual packages and not other exterior packaging such as cartons, crates or pallets. As such, tax stamp systems do not comply with the obligations of the Protocol. The provisions of the Protocol apply to the export market, free zones, duty-free sales and transit trade and require unique identification also on the outer packaging of all tobacco products.

• Regional systems

The EU Traceability System is a regional level tracking and tracing system for tobacco products. The system has been operational since May 2019 and stored data on 112 billion unique tobacco product identifiers as of February 2023[50]. So far, no report on the effectiveness of the EU traceability system has been published[51].

In a survey of EU member states[52], some countries said that the requirement to place a unique identifier should strongly limit the possibility of introducing illicit products onto the EU market.

Two EU countries added that the traceability system was a powerful tool for national authorities investigating smuggling and other crimes. Another EU country considered that the traceability system was useful to some extent, due to the improvement of the databases in place. However, not all EU countries consider the traceability system to be useful in reducing illicit trade and detailed information on how the EU system actually works is lacking.

A detailed report on the results of the EU traceability system would be useful for the EU and other regions. For example, a description of investigations based on tracing data carried out by Member States and the European Anti-Fraud Office, the results of the investigations, analysis of data at EU and Member State level to measure the illicit market, suspicious exports, sudden changes in export patterns of cigarette brands, oversupply in stores and places located near the border of high tax countries would provide useful insights on how Tracking and tracing helps monitor and investigate illicit trade.

• Criteria for evaluating tracking and tracing systems

A global tracking and tracing system could help secure the supply chain and facilitate investigations into illicit trade in tobacco products, if enough Parties have a tracking and tracing system covering all obligations of the Protocol, based on robust data, without interference from the tobacco industry, with access to unique identification marks outside the jurisdiction and mutually recognizable data.

• Do enough Parties have tracking and tracing systems?

The Protocol currently has 67 Parties - probably enough to work, but not enough to resolve all global illicit trade investigations. It was not expected that all parties to the FCTC would become Parties to the Protocol. However, a larger number of Parties remains necessary to meet the objectives of the text. In particular, certain Parties to the FCTC such as the main countries where cigarette manufacturers and producers are located, free zone countries, countries of origin of illicit cigarettes are not part of it. It is also worrying that the number of existing tracking and tracing systems among Parties is low, estimated at 37 out of 67 Parties (55 %). Ten other Parties have a system under development.

In the report of the Convention Secretariat on financial resources and assistance mechanisms, Parties indicated that they needed technical assistance and resources to establish a tracking and tracing system, “ with most Parties recognizing that once tracking and tracing systems are in place, they could help cover some of the costs of implementing and maintaining implementation of the Protocol »[53].

Low-income and lower-middle-income countries, in particular, reported difficulties implementing the Protocol and establishing a tracking and tracing system.

• Degree of coverage of all obligations arising from the Protocol

Several criteria must be taken into account to assess the conformity of the Protocol. First, does a Party have a cigarette tracking and tracing system operational or under development? Then, does this system apply only to cigarettes or also to other tobacco products? The Protocol applies in principle to all imported and manufactured cigarettes, whether intended for domestic consumption or export (Article 8(2)) but traceability market coverage may vary. In Mauritius, tax stamps do not apply to exports, duty-free sales and free zones[54]. The EU traceability system applies to exports and cigarettes for use by member states, but in the case of imports, the system only applies to cigarettes intended for the EU market or placed on this market (Article 15(1) of the European Tobacco Products Directive) and not to cigarettes imported in transit. It is not possible to tackle the illicit tobacco trade without monitoring and controlling export practices, including products in free zones[55]. Information is needed on whether traceability systems cover imports, exports, transit trade, duty-free sales and free zones.

The Protocol applies to all external packaging of cigarettes (single packs, cartons, boxes and pallets). During international transport, cigarette packs become part of a larger outer package. This requires unique marking on all packaging and a link between the different markings. Without aggregation links between packets, cartons, crates and pallets, all pallets would have to be opened and all cigarette packets individually scanned. With aggregation, you simply scan the unique ID of the palette to track all the packages it contains. As such, the Protocol does not require aggregation, but in practice aggregation is necessary to recreate the movement of goods throughout the supply chain. Thirty-three Parties responded in their respective reports submitted to the Convention Secretariat, in accordance with Article 32 of the Protocol, that the system applies to all outer packaging of cigarettes[56].

• Guaranteed interoperability?

Interoperability refers to the essential capability required for different computerized products or systems to connect and exchange information with each other. Traceability systems are based on unique identifiers affixed to cigarette packets. Unique identifiers should provide access to key information (date, location, manufacturer, brand description, destination) at the time of entry and more detailed information through a database link. International data exchange should take place through the Global Focal Point for Information Exchange, upon request of a Party, based on a unique identifier applied to an individual package. Without access to the unique identifier, there is no way to link to the database or global focal point for information exchange.

Unique identifiers are accessible if they are human readable or included in an open standard data carrier, such as a QR code. Unique identifiers are sometimes invisible and included in the tax stamp. The content of the unique identifier may be encrypted or encoded. Under these conditions, access to data and unique identifiers is only possible for agents authorized at the national level, via a national or regional application or device, and not for agents outside the jurisdiction. In the EU, unique identifiers are both human-readable on packages and included in open access data carriers.

The key information contained in the unique identifier is, however, available in coded form and is only accessible to authorized EU officials. For a global traceability system to function, it is necessary to know whether the unique identification codes/marks and the key information they contain (date, location, manufacturing unit, destination market and product description, Article 8.4.2) will be recognized beyond the initial jurisdiction. It would be useful to have an up-to-date library of unique identification codes, their structure and images. It would also show how unique identification codes are applied to packaging, including whether the marking systems are stand-alone or combined with a tax stamp.

At a later stage, Parties should decide on the use of international standards for data structuring and coding when sharing data through the global focal point for information exchange. Until now, parties can decide for themselves how they record, structure and encode data in their national or regional database. However, when the exchange of data between the Parties is organized, international standards for data formatting, messaging and electronic data exchange will be necessary to ensure interoperability.

• The need for reliable data

Reliable data requires a range of control measures, some of which are presented below:

• Provide that identifiers on packages are unique (non-sequential, non-predictable and non-reproducible), non-removable (e.g. via an anti-fraud device) and secure (with a set of high-quality security features) generated by a third party party independent of tobacco manufacturers.
• Have monitoring equipment at the point of manufacture or throughout the supply chain to scan and record the unique identifier and to verify anti-fraud devices and application of the unique identifier on each package, cartridge , checkout and send it in real time to the national or regional database.
• Report all product transactions in the supply chain in real or near real time to the national or regional database.
• Select independent auditors by national authorities to monitor the software and generation of unique identification codes, without interference from the tobacco industry, to monitor the application of unique identification codes at the place of manufacture and access of data to the national or regional database.

©Tobacco Free Generation

AE

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