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WHO FRAMEWORK

CONVENTION

TOBACCO CONTROL

for implementation

Article 5.3

Article 8

Articles 9 and 10

Article 11| Article 12

Article 13

Article 14

Guidelines

article 5.3

2013

edition

ARTICLE 5.3

Guidelines for implementation

Article 5.3

WHO Library Cataloguing-in-Publication Data :

WHO Framework Convention on Tobacco Control: guidelines for implementation

Article 5.3; Article 8; Articles 9 and 10; Article 11; Article 12; Article 13; Article 14 –

2013 edition.

1.Tobacco industry - legislation. 2.Smoking - adverse effects. 3.Smoking - legislation.

4.Tobacco-derived products labelling. 5.Tobacco control campaigns. I.World Health

Organization.

ISBN 978 92 4 150518 5

(NLM classification: HD 9130.6)

FCTC/16.1

WHO web site (www.who.int) or can be purchased from WHO Press, World Health

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that they are endorsed or recommended by the World Health Organization in preference

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names of proprietary products are distinguished by initial capital letters.

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Printed in France

ARTICLE 5.3

Guidelines for implementation: Article 5.3

Guidelines for implementation of Article 5.3

of the WHO Framework Convention on Tobacco Control

PROTECTION OF PuBLIC HEALTH POLICIEs WITH REsPECT TO

TOBACCO CONTROL FROM COMMERCIAL ANd OTHER VEsTEd

INTEREsTs OF THE TOBACCO INdusTRy

INTRODUCTION

World Health Assembly resolution WHA54.18 on transparency in tobacco

control process, citing the findings of the Committee of Experts on Tobacco

Industry Documents, states that “the tobacco industry has operated for years

with the express intention of subverting the role of governments and of WHO

in implementing public health policies to combat the tobacco epidemic”.

The Preamble of the WHO Framework Convention on Tobacco Control recognized

the Parties’

“need to be alert to any efforts by the tobacco industry to undermine

or subvert tobacco control efforts and the need to be informed of activities of the

tobacco industry that have a negative impact on tobacco control efforts”.

Further, Article 5.3 of the Convention requires that “in setting and implementing

their public health policies with respect to tobacco control, Parties shall act

to protect these policies from commercial and other vested interests of the

tobacco industry in accordance with national law”.

The Conference of the Parties, in decision FCTC/COP2(14), established a

working group to elaborate guidelines for implementation of Article 5.3 of the

Convention.

Without prejudice to the sovereign right of the Parties to determine and

establish their tobacco control policies, Parties are encouraged to implement

these guidelines to the extent possible in accordance with their national law.

Purpose, scope and applicability

Use of the guidelines for implementation of Article 5.3 of the Convention will

have an overarching impact on countries’ tobacco control policies and on

implementation of the Convention, because the guidelines recognize that

“The term ‘Parties’ refers to States and other entities with treaty-making capacity which have expressed

their consent to be bound by a treaty and where the treaty is in force for such States and entities.”

(Source: United Nations Treaty Collections: http://untreaty.un.org/English/guide.asp#signatories).

Guidelines for implementation: Article 5.3

tobacco industry interference, including that from the State-owned tobacco

industry, cuts across a number of tobacco control policy areas, as stated in

the Preamble of the Convention, articles referring to specific tobacco control

policies and the Rules of Procedure of the Conference of the Parties to the

WHO Framework Convention on Tobacco Control.

The purpose of these guidelines is to ensure that efforts to protect tobacco

control from commercial and other vested interests of the tobacco industry

are comprehensive and effective. Parties should implement measures in all

branches of government that may have an interest in, or the capacity to, affect

public health policies with respect to tobacco control.

The aim of these guidelines is to assist Parties

in meeting their legal

obligations under Article 5.3 of the Convention. The guidelines draw on the

best available scientific evidence and the experience of Parties in addressing

tobacco industry interference.

The guidelines apply to setting and implementing Parties’ public health policies

with respect to tobacco control. They also apply to persons, bodies or entities

that contribute to, or could contribute to, the formulation, implementation,

administration or enforcement of those policies.

The guidelines are applicable to government officials, representatives and

employees of any national, state, provincial, municipal, local or other public

or semi/quasi-public institution or body within the jurisdiction of a Party,

and to any person acting on their behalf. Any government branch (executive,

legislative and judiciary) responsible for setting and implementing tobacco

control policies and for protecting those policies against tobacco industry

interests should be accountable.

The broad array of strategies and tactics used by the tobacco industry to

interfere with the setting and implementing of tobacco control measures,

such as those that Parties to the Convention are required to implement, is

documented by a vast body of evidence. The measures recommended in these

guidelines aim at protecting against interference not only by the tobacco

industry but also, as appropriate, by organizations and individuals that work

to further the interests of the tobacco industry.

While the measures recommended in these guidelines should be applied

by Parties as broadly as necessary, in order best to achieve the objectives

of Article 5.3 of the Convention, Parties are strongly urged to implement

measures beyond those recommended in these guidelines when adapting

them to their specific circumstances.

Where appropriate, these guidelines also refer to regional economic integration organizations.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

GUIDING PRINCIPLES

Principle 1: There is a fundamental and irreconcilable conflict between

the tobacco industry’s interests and public health policy interests.

The tobacco industry produces and promotes a product that has been proven

scientifically to be addictive, to cause disease and death and to give rise to a

variety of social ills, including increased poverty. Therefore, Parties should

protect the formulation and implementation of public health policies for

tobacco control from the tobacco industry to the greatest extent possible.

Principle 2: Parties, when dealing with the tobacco industry or those

working to further its interests, should be accountable and transparent.

Parties should ensure that any interaction with the tobacco industry on matters

related to tobacco control or public health is accountable and transparent.

Principle 3: Parties should require the tobacco industry and those working

to further its interests to operate and act in a manner that is accountable

and transparent.

The tobacco industry should be required to provide Parties with information

for effective implementation of these guidelines.

Principle 4: Because their products are lethal, the tobacco industry should

not be granted incentives to establish or run their businesses.

Any preferential treatment of the tobacco industry would be in conflict with

tobacco control policy.

RECOMMENDATIONS

The following important activities are recommended for addressing tobacco

industry interference in public health policies:

(1) Raise awareness about the addictive and harmful nature of tobacco

products and about tobacco industry interference with Parties’ tobacco

control policies.

(2) Establish measures to limit interactions with the tobacco industry and

ensure the transparency of those interactions that occur.

(3) Reject partnerships and non-binding or non-enforceable agreements

with the tobacco industry.

(4) Avoid conflicts of interest for government officials and employees.

Guidelines for implementation: Article 5.3

(5) Require that information provided by the tobacco industry be transparent

and accurate

(6) Denormalize and, to the extent possible, regulate activities described

as “socially responsible” by the tobacco industry, including but not

limited to activities described as “corporate social responsibility”.

(7) Do not give preferential treatment to the tobacco industry.

(8) Treat State-owned tobacco industry in the same way as any other

tobacco industry.

Agreed measures for protecting public health policies with respect to tobacco

control from commercial and other vested interests of the tobacco industry

are listed below. Parties are encouraged to implement measures beyond those

provided for by these guidelines, and nothing in these guidelines shall prevent

a Party from imposing stricter requirements that are consistent with these

recommendations.

(1) Raise awareness about the addictive and harmful nature of tobacco

products and about tobacco industry interference with Parties’ tobacco

control policies.

All branches of government and the public need knowledge and awareness

about past and present interference by the tobacco industry in setting and

implementing public health policies with respect to tobacco control. Such

interference requires specific action for successful implementation of the

whole Framework Convention.

Recommendations

1.1 Parties should, in consideration of Article 12 of the Convention,

inform and educate all branches of government and the public

about the addictive and harmful nature of tobacco products, the

need to protect public health policies for tobacco control from

commercial and other vested interests of the tobacco industry and

the strategies and tactics used by the tobacco industry to interfere

with the setting and implementation of public health policies with

respect to tobacco control.

1.2 Parties should, in addition, raise awareness about the tobacco

industry’s practice of using individuals, front groups and affiliated

organizations to act, openly or covertly, on their behalf or to take

action to further the interests of the tobacco industry.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

(2) Establish measures to limit interactions with the tobacco industry and

ensure the transparency of those interactions that occur.

In setting and implementing public health policies with respect to tobacco

control, any necessary interaction with the tobacco industry should be carried

out by Parties in such a way as to avoid the creation of any perception of a

real or potential partnership or cooperation resulting from or on account of

such interaction. In the event the tobacco industry engages in any conduct

that may create such a perception, Parties should act to prevent or correct

this perception.

Recommendations

2.1 Parties should interact with the tobacco industry only when and to

the extent strictly necessary to enable them to effectively regulate

the tobacco industry and tobacco products.

2.2 Where interactions with the tobacco industry are necessary, Parties

should ensure that such interactions are conducted transparently.

Whenever possible, interactions should be conducted in public, for

example through public hearings, public notice of interactions,

disclosure of records of such interactions to the public.

(3) Reject partnerships and non-binding or non-enforceable agreements

with the tobacco industry.

The tobacco industry should not be a partner in any initiative linked to setting

or implementing public health policies, given that its interests are in direct

conflict with the goals of public health.

Recommendations

3.1 Parties should not accept, support or endorse partnerships

and non-binding or non-enforceable agreements as well as any

voluntary arrangement with the tobacco industry or any entity or

person working to further its interests.

3.2 Parties should not accept, support or endorse the tobacco industry

organizing, promoting, participating in, or performing, youth, public

education or any initiatives that are directly or indirectly related to

tobacco control.

3.3 Parties should not accept, support or endorse any voluntary code

of conduct or instrument drafted by the tobacco industry that is

offered as a substitute for legally enforceable tobacco control

measures.

3.4 Parties should not accept, support or endorse any offer for assistance

or proposed tobacco control legislation or policy drafted by or in

collaboration with the tobacco industry.

Guidelines for implementation: Article 5.3

(4) Avoid conflicts of interest for government officials and employees.

The involvement of organizations or individuals with commercial or vested

interests in the tobacco industry in public health policies with respect to

tobacco control is most likely to have a negative effect. Clear rules regarding

conflicts of interest for government officials and employees working in tobacco

control are important means for protecting such policies from interference by

the tobacco industry.

Payments, gifts and services, monetary or in-kind, and research funding

offered by the tobacco industry to government institutions, officials or

employees can create conflicts of interest. Conflicting interests are created

even if a promise of favourable consideration is not given in exchange, as the

potential exists for personal interest to influence official responsibilities as

recognized in the International Code of Conduct for Public Officials adopted

by the United Nations General Assembly and by several governmental and

regional economic integration organizations.

Recommendations

4.1 Parties should mandate a policy on the disclosure and management

of conflicts of interest that applies to all persons involved in setting

and implementing public health policies with respect to tobacco

control, including government officials, employees, consultants and

contractors.

4.2 Parties should formulate, adopt and implement a code of conduct

for public officials, prescribing the standards with which they should

comply in their dealings with the tobacco industry.

4.3 Parties should not award contracts for carrying out any work

related to setting and implementing public health policies with

respect to tobacco control to candidates or tenderers who have

conflicts of interest with established tobacco control policies.

4.4 Parties should develop clear policies that require public office

holders who have or have had a role in setting and implementing

public health policies with respect to tobacco control to inform their

institutions about any intention to engage in an occupational

activity within the tobacco industry, whether gainful or not, within

a specified period of time after leaving service.

4.5 Parties should develop clear policies that require applicants for

public office positions which have a role in setting and implementing

public health policies with respect to tobacco control to declare any

current or previous occupational activity with any tobacco industry

whether gainful or not.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

4.6 Parties should require government officials to declare and divest

themselves of direct interests in the tobacco industry.

4.7 Government institutions and their bodies should not have any

financial interest in the tobacco industry, unless they are responsible

for managing a Party’s ownership interest in a State-owned tobacco

industry.

4.8 Parties should not allow any person employed by the tobacco

industry or any entity working to further its interests to be a

member of any government body, committee or advisory group

that sets or implements tobacco control or public health policy.

4.9 Parties should not nominate any person employed by the tobacco

industry or any entity working to further its interests to serve on

delegations to meetings of the Conference of the Parties, its

subsidiary bodies or any other bodies established pursuant to

decisions of the Conference of the Parties.

4.10 Parties should not allow any official or employee of government

or of any semi/quasi-governmental body to accept payments, gifts

or services, monetary or in-kind, from the tobacco industry.

4.11 Taking into account national law and constitutional principles,

Parties should have effective measures to prohibit contributions

from the tobacco industry or any entity working to further its interests

to political parties, candidates or campaigns, or to require full

disclosure of such contributions.

(5) Require that information provided by the tobacco industry be

transparent and accurate.

To take effective measures preventing interference of the tobacco industry

with public health policies, Parties need information about its activities and

practices, thus ensuring that the industry operates in a transparent manner.

Article 12 of the Convention requires Parties to promote public access to such

information in accordance with national law.

Article 20.4 of the Convention requires, inter alia, Parties to promote and

facilitate exchanges of information about tobacco industry practices and the

cultivation of tobacco. In accordance with Article 20.4(c) of the Convention,

each Party should endeavour to cooperate with competent international

organizations to establish progressively and maintain a global system to

regularly collect and disseminate information on tobacco production and

manufacture and activities of the tobacco industry which have an impact on

the Convention or national tobacco control activities.

Guidelines for implementation: Article 5.3

Recommendations

5.1 Parties should introduce and apply measures to ensure that all

operations and activities of the tobacco industry are transparent.

5.2 Parties should require the tobacco industry and those working to

further its interests to periodically submit information on tobacco

production, manufacture, market share, marketing expenditures,

revenues and any other activity, including lobbying, philanthropy,

political contributions and all other activities not prohibited or not

yet prohibited under Article 13 of the Convention.

5.3 Parties should require rules for the disclosure or registration of

the tobacco industry entities, affiliated organizations and

individuals acting on their behalf, including lobbyists.

5.4 Parties should impose mandatory penalties on the tobacco industry

in case of the provision of false or misleading information in

accordance with national law.

5.5 Parties should adopt and implement effective legislative, executive,

administrative and other measures to ensure public access, in

accordance with Article 12(c) of the Convention, to a wide range of

information on tobacco industry activities as relevant to the

objectives of the Convention, such as in a public repository.

(6) Denormalize and, to the extent possible, regulate activities described

as “socially responsible” by the tobacco industry, including but not limited

to activities described as “corporate social responsibility”.

The tobacco industry conducts activities described as socially responsible to

distance its image from the lethal nature of the product it produces and sells

or to interfere with the setting and implementation of public health policies.

Activities that are described as “socially responsible” by the tobacco industry,

aiming at the promotion of tobacco consumption, is a marketing as well as

a public relations strategy that falls within the Convention’s definition of

advertising, promotion and sponsorship.

The corporate social responsibility of the tobacco industry is, according to

WHO,

an inherent contradiction, as industry’s core functions are in conflict

with the goals of public health policies with respect to tobacco control.

Recommendations

6.1 Parties should ensure that all branches of government and the

public are informed and made aware of the true purpose and

Without prejudice to trade secrets or confidential information protected by law.

WHO.

Tobacco industry and corporate social responsibility – an inherent contradiction.

Geneva,

World Health Organization, 2004.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

scope of activities described as socially responsible performed by

the tobacco industry.

6.2 Parties should not endorse, support, form partnerships with

or participate in activities of the tobacco industry described as

socially responsible.

6.3 Parties should not allow public disclosure by the tobacco industry

or any other person acting on its behalf of activities described as

socially responsible or of the expenditures made for these activities,

except when legally required to report on such expenditures, such

as in an annual report.

6.4 Parties should not allow acceptance by any branch of government

or the public sector of political, social, financial, educational,

community or other contributions from the tobacco industry or

from those working to further its interests, except for compensations

due to legal settlements or mandated by law or legally binding and

enforceable agreements.

(7) Do not give preferential treatment to the tobacco industry.

Some governments encourage investments by the tobacco industry, even to

the extent of subsidizing them with financial incentives, such as providing

partial or complete exemption from taxes otherwise mandated by law.

Without prejudice to their sovereign right to determine and establish their

economic, financial and taxation policies, Parties should respect their

commitments for tobacco control.

Recommendations

7.1 Parties should not grant incentives, privileges or benefits to the

tobacco industry to establish or run their businesses.

7.2 Parties that do not have a State-owned tobacco industry should

not invest in the tobacco industry and related ventures. Parties

with a State-owned tobacco industry should ensure that any

investment in the tobacco industry does not prevent them from

fully implementing the WHO Framework Convention on Tobacco

Control.

7.3 Parties should not provide any preferential tax exemption to the

tobacco industry.

The guidelines for implementation of Article 13 of the WHO Framework Convention on Tobacco Control

address this subject from the perspective of tobacco advertising, promotion and sponsorship.

Guidelines for implementation: Article 5.3

(8) Treat State-owned tobacco industry in the same way as any other

tobacco industry.

Tobacco industry can be government-owned, non-government-owned or a

combination thereof. These guidelines apply to all tobacco industry, regardless

of its ownership.

Recommendations

8.1 Parties should ensure that State-owned tobacco industry is treated

in the same way as any other member of the tobacco industry in

respect of setting and implementing tobacco control policy.

8.2 Parties should ensure that the setting and implementing of tobacco

control policy are separated from overseeing or managing tobacco

industry.

8.3 Parties should ensure that representatives of State-owned tobacco

industry does not form part of delegations to any meetings of the

Conference of the Parties, its subsidiary bodies or any other bodies

established pursuant to decisions of the Conference of the Parties.

ENFORCEMENT AND MONITORING

Enforcement

Parties should put in place enforcement mechanisms or, to the extent possible,

use existing enforcement mechanisms to meet their obligations under Article

5.3 of the Convention and these guidelines.

Monitoring implementation of Article 5.3 of the Convention and of these

guidelines

Monitoring implementation of Article 5.3 of the Convention and of these

guidelines is essential for ensuring the introduction and implementation of

efficient tobacco control policies. This should also involve monitoring the

tobacco industry, for which existing models and resources should be used,

such as the database on tobacco industry monitoring of the WHO Tobacco

Free Initiative.

Nongovernmental organizations and other members of civil society not

affiliated with the tobacco industry could play an essential role in monitoring

the activities of the tobacco industry.

Codes of conduct or staff regulations for all branches of governments should

include a “whistleblower function”, with adequate protection of whistleblowers.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

In addition, Parties should be encouraged to use and enforce mechanisms to

ensure compliance with these guidelines, such as the possibility of bringing

an action to court, and to use complaint procedures such as an ombudsman

system.

INTERNATIONAL COLLABORATION AND UPDATING AND REVISION

OF THE GUIDELINES

International cooperation is essential for making progress in preventing

interference by the tobacco industry with the formulation of public health

policies on tobacco control. Article 20.4 of the Convention provides the basis

for collecting and exchanging knowledge and experience with respect to

tobacco industry practices, taking into account and addressing the special

needs of developing country Parties and Parties with economies in transition.

Efforts have already been made to coordinate the collection and dissemination

of national and international experience with regard to the strategies and

tactics used by the tobacco industry and to the monitoring of tobacco industry

activities. Parties would benefit from sharing legal and strategic expertise for

countering tobacco industry strategies. Article 21.4 of the Convention provides

that information exchange should be subject to national laws regarding

confidentiality and privacy.

Recommendations

As the strategies and tactics used by the tobacco industry evolve constantly,

these guidelines should be reviewed and revised periodically to ensure that

they continue to provide effective guidance to Parties on protecting their

public health policies on tobacco control from tobacco industry interference.

Parties reporting via the existing reporting instrument of the Framework

Convention should provide information on tobacco production and manufacture

and the activities of the tobacco industry that affect the Convention or

national tobacco control activities. To facilitate this exchange, the Convention

Secretariat should ensure that the principal provisions of these guidelines are

reflected in the next phases of the reporting instrument, which the Conference

of the Parties will gradually adopt for use by Parties.

In view of the paramount importance of preventing tobacco industry

interference in any public health policy with respect to tobacco control, the

Conference of the Parties may, in the light of experience with implementing

these guidelines, consider whether there is a need to elaborate a protocol in

relation to Article 5.3 of the Convention.

Guidelines for implementation: Article 5.3

USEFUL SOURCES OF INFORMATION

Relevant literature

Brandt AM.

The cigarette century. The rise, fall, and deadly persistence of

the product that defined America.

New York, Basic Books, 2007.

Chapman S.

Making smoking history. Public health advocacy and tobacco

control.

Oxford, Blackwell Publishing, 2007.

Callard C, Thompson D, Collishaw N.

Curing the addiction to profits: a supply-

side approach to phasing out tobacco.

Ottawa, Canadian Centre for Policy

Alternatives and Physicians for a Smoke free Canada, 2005.

Feldman EA, Bayer R (Editors).

Unfiltered: conflicts over tobacco policy and

public health.

Boston, Harvard University Press, 2004.

Gilmore A et al. Continuing influence of tobacco industry in Germany.

Lancet,

2002, 360:1255.

Hastings G, Angus K.

The influence of the tobacco industry on European

tobacco control policy. In: Tobacco or health in the European Union. Past,

present and future.

Luxembourg, Office for Official Publications of the

European Commission, 2004:195–225.

Lavack A.

Tobacco industry denormalization campaigns: a review and

evaluation.

Ottawa, Health Canada, 2001.

Mahood G.

Tobacco industry denormalization. Telling the truth about the

tobacco industry’s role in the tobacco epidemic.

Toronto, Campaign for

Tobacco Industry Denormalization, 2004.

Pan American Health Organization.

Profits over people. Tobacco industry

activities to market cigarettes and undermine public health in Latin America

and the Caribbean.

Washington DC, Pan American Health Organization, 2002.

Simpson D. Germany: still sleeping with the enemy.

Tobacco Control,

2003,

12:343–344.

Hammond R, Rowell A.

Trust us. We’re the tobacco industry.

Baltimore, Johns

Hopkins University Press, 2001.

World Health Organization.

Tobacco company strategies to undermine tobacco

control activities at the World Health Organization.

Geneva, World Health

Organization, 2000.

World Health Organization.

Tobacco industry and corporate social

responsibility – an inherent contradiction.

Geneva, World Health Organization,

2004.

ARTICLE 5.3

Guidelines for implementation: Article 5.3

Yach D, Bialous S. Junking science to promote tobacco.

American Journal of

Public Health,

2001, 91:1745–1748.

Web resources

WHO sites:

Tobacco Free Initiative: http://www.who.int/tobacco/en/

WHO publications on tobacco:

http://www.who.int/tobacco/resources/publications/en/

WHO European Regional Office:

http://www.euro.who.int/healthtopics/HT2ndLvlPage?HTCode=smoking

Tobacco control in the Americas (in English and Spanish):

http://www.paho.org/english/ad/sde/ra/Tobabout.htm

Sites with general, regional or national information and topics related

to tobacco control:

Action on Smoking and Health, UK (and special page for the tobacco industry):

http://www.newash.org.uk/ash_r3iitasl.htm

Corporate Accountability International and the Network for Accountability of

Tobacco Transnationals: www.stopcorporateabuse.org

Economics of tobacco control: http://www1.worldbank.org/tobacco/

European Commission:

http://ec.europa.eu/health/ph_determinants/life_style/Tobacco/tobacco_en.htm

European Network for Smoking Prevention: http://www.ensp.org/

Framework Convention Alliance for Tobacco Control: http://www.fctc.org/

International Union for Health Promotion and Education:

http://www.iuhpe.org/?page=18&lang=en

Model Legislation for Tobacco Control manual:

http://www.iuhpe.org/?lang=en&page=publications_report2

Tobacco industry:

http://tobacco.health.usyd.edu.au/site/supersite/links/docs/tobacco_ind.htm

Smokefree Partnership: http://www.smokefreepartnership.eu/

Thailand Health Promotion Institute: http://www.thpinhf.org/

Tobaccopedia: the online tobacco encyclopaedia: http://www.tobaccopedia.org/

Guidelines for implementation: Article 5.3