216. The representative of the World Health Organization (WHO) said that the WHO viewed tobacco use as one of the greatest threats to public health the world has ever faced. Tobacco consumption currently killed nearly six million people a year through direct use and the deadly effects of second-hand smoke, and an average of one person every six seconds and one in ten adults succumbed to tobacco use. Tobacco was indeed the single most preventable cause of death in the world today. It was the only legal consumer product that killed up to half of those who used it as intended and recommended by the manufacturer. Moreover, tobacco was a prominent risk factor for six of the eight leading causes of death in the world. The economic costs of tobacco use were equally as devastating as the public health costs, killing people at the height of their productivity. Yet these disastrous consequences continued in large part due to aggressive and widespread marketing and practices by multinational tobacco companies, including through the use of targeted and precisely designed tobacco product packaging aiming to initiate and maintain addiction among consumers.
217. He said that a strong and irrefutable body of evidence had demonstrated that product packaging traditionally served as one of the tobacco industry's central vehicles in initiating and maintaining addiction to their lethal products among consumers. For example, detailed analyses of tobacco industry documents had illustrated that tobacco companies viewed product packaging as a critical marketing strategy in promoting brand image in order to increase their market share, and target vulnerable segments of the population, including women and children. Peer-reviewed research indicated that plain packaging on tobacco products would increase the impact of health warnings, reduce false and misleading messages that deceive customers into believing that some tobacco products are safer than others, and reduce the attractiveness of products to segments of the population specifically targeted by tobacco companies. Given that the majority of smokers began a lifetime of addiction before the age of 18, plain packaging would severely restrict the industry's capacity to appeal to young people. In the context of the tactics employed by the tobacco industry to use tobacco packaging to mislead consumers with respect to the level of risk to which consumers are exposed, he said plain packaging also circumvented and avoided communication of disparate levels of harm.
218. He said that the tobacco industry would vehemently lobby in opposition to the introduction of plain packaging legislation, even in the face of overwhelming evidence. Fundamentally, the introduction of plain packaging would represent the inability of tobacco companies to appeal to consumers in ways to which they are accustomed, and, in this way, could affect the tobacco industry's economic interests. It was important to note that this nature of opposition to effective tobacco control policies was a traditional tactic employed by the tobacco industry as tobacco companies had operated for decades with the sole purpose of compromising public health policies in order to expand market share. WHO was of the view that a discussion in this forum of these legitimate tobacco control measures would have a substantial impact on tobacco consumption and, in turn, on the national burden of disease attributed to non-communicable diseases, which represented 60 per cent of all deaths worldwide.
219. Another representative of the WHO said that the WHO Framework Convention on Tobacco Control (FCTC) was the first international treaty negotiated under the auspices of the World Health Organization. The Convention had been developed in response to the globalization of the tobacco epidemic and was an evidence-based treaty that reaffirmed the right of all people to the highest standard of health. It had been adopted by the World Health Assembly on 21 May 2003 and had entered into force on 27 February 2005. It had since become one of the most rapidly and widely embraced treaties in the United Nations history. The Convention currently had 173 Parties and she noted that, of the 153 WTO Members, 138 were party to the FCTC, and thus subject to the obligations it contained.
220. She said that the WHO FCTC contained a number of provisions relevant to the issue of plain packaging of tobacco products. Article 3 of the WHO FCTC set out the collective objectives of the parties in negotiating the FCTC in the following terms: "to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke."
221. The general obligations of the parties to the WHO FCTC were set out in Article 5 of the FCTC, and included the development and implementation of comprehensive multi-sectoral national tobacco control strategies, plans and programs in keeping with the convention and any future protocols. In addition, Article 5 made it clear in paragraph 2 (b) that each party to the WHO FCTC had committed itself to adopting, implementing and periodically updating and reviewing effective legislative, executive, administrative and/or other measures aimed at inter alia preventing and reducing tobacco consumption.
222. She said that in addition to these general obligations, the parties to the WHO FCTC had committed themselves to certain specific obligations, including in respect of measures relating to the reduction of demand for tobacco products. Among these agreed measures were non-price measures to reduce demand for tobacco products, including the obligation on parties to adopt and implement effective legislative, executive, administrative or other measures necessary to fulfill their obligations under Articles 8 to 13 of the FCTC. Importantly, Article 7 also included the obligation, through the Conference of the Parties, to propose appropriate guidelines for the implementation of Articles 8 to 13. In terms of specific obligations, Article 11 of the Convention required Parties to adopt and implement effective measures in respect of the packaging and labelling of tobacco products, including health warnings and other appropriate messages.
223. She said that Article 13 of the WHO FCTC had to be read in light of the broad definition of "tobacco advertising and promotion" contained in Article 1(c) of the FCTC as follows: "'tobacco advertising and promotion' means any form of commercial communication, recommendation or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly." Article 13 of the FCTC required parties to undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship.
224. As already noted, Article 7 of the WHO FCTC required the Conference of the Parties - the FCTC's governing body, which comprised all 173 parties to the FCTC - to adopt guidelines for the implementation of certain of the obligations undertaken by the parties, including those in Articles 11 and 13. With respect to the preparation of guidelines under the FCTC, she said that this was an intergovernmental process in which the parties to the Convention created working groups in which the text of the guidelines was elaborated by representatives nominated by the parties before being sent to the Conference of the Parties for consideration for adoption. Members should note that the
Conference of the Parties had adopted all guidelines by consensus. Resources and references used in the development of the guidelines for implementation were made available to the public on the WHO FCTC website.
225. She said that Members had already referred to the guidelines for the implementation of Articles 11 and 13 which specifically referred to taking measures in respect of plain packaging of tobacco products as a means of implementing party obligations to undertake a comprehensive ban of all tobacco advertising.
226. She said that it might also be of interest to Members of the TRIPS Council to note two recent decisions of the Conference of the Parties of the FCTC, the governing body of the Convention which met every two years, most recently in November 2010 in Punta del Este, Uruguay. The first decision of interest was the Punta del Este Declaration (FCTC/COP4(5)) regarding public health policy, international trade and the activities of the tobacco industry, which specifically references Articles of the TRIPS Agreement as well as the Doha Declaration on the TRIPS Agreement and Public Health. The second COP Decision of interest in this context (FCTC/COP4(18)) requested, inter alia, the FCTC Secretariat to cooperate with the WTO Secretariat with the aim of sharing information on trade-related tobacco control issues. She said that all decisions were available on the WHO FCTC website - http://www.who.int/fctc/en/.
227. She informed the Council that a draft protocol to eliminate illicit trade in tobacco products was currently under negotiation. The protocol would deal with certain matters, including counterfeit products, illicit trade and the like. The final session of the Intergovernmental Negotiating Body, open to all parties to the FCTC, was expected to take place in March 2012.