FCTC Article 5.3: Scope and meaning

One of the most significant and recent development in global tobacco control is the adoption of guidelines on Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC) by the third session of the Conference of Parties (COP) to the global tobacco treaty in November 2008. The treaty obligates its Parties to undertake a range of measures that reduce tobacco use, while protecting public health policies from the vested interests of the tobacco industry.  

The Preamble of the global tobacco treaty, indicates that 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 FCTC requires that “in setting and implementing their public health policies with respect to tobacco control, Parties should act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with the national law.”  

Effective implementation of Article 5.3 as elaborated through its guidelines will have an overarching impact on most of the other tobacco control interventions at different levels as it formally recognizes the “fundamental and irreconcilable conflict” between public health policy and tobacco industry interests.  

“Big Tobacco has long exploited every opportunity to increase its profits by spreading a preventable epidemic. The Article 5.3 guidelines will help public officials and advocates begin to slam the door on tobacco industry tactics, and focus on implementing the FCTC’s lifesaving measures”, says Kathryn Mulvey, International Policy Director, Corporate Accountability International.  

Ms. Mulvey further stresses that “these guidelines tackle, one-by-one, the means by which tobacco giants like Philip Morris International, British American Tobacco, Japan Tobacco and their subsidiaries interfere in public health policy. 

The Guidelines therefore recommend measures such as: 

• Strictly limiting government interactions with the tobacco industry and its representatives; 
• Rejecting partnerships with the tobacco industry; 
• Ensuring transparency of tobacco industry operations and activities.” 
• Tobacco industry interference in Indian tobacco control  

While the Ministry of Health and Family Welfare in India has been making concerted efforts to move forward the tobacco control programme, recent times have witnessed the Government becoming increasingly susceptible to industry pressure.

a) Delay and dilution of tobacco control policies: The tobacco industry interference has directly or indirectly (through its allied agencies) repeatedly sabotaged public health policies in India. Before going to the third session of the Conference of Parties (COP3) to the FCTC, the Health Ministry had revealed before the Central Information Commission that tobacco industry is putting “pressure” to relax the tobacco control policies (Source: The Hindu, 14 November 2008).  
           
Right after the adoption of Article 5.3 guidelines of FCTC, India faced a major blow with the deferment of the implementation of pictorial health warnings on tobacco products. This was, at least, the seventh time the implementation of pictorial health warnings was being postponed from 30 November 2008 to 31 May 2009—reportedly due to hectic lobbying by the industry allies and other entities like the Bidi Growers’ Association. 

b) Tobacco lobby’s influence over the Indian Cabinet: Earlier in 2008, due to aggressive lobbying, the consultative Group of Ministers (GoM) formed to review pictorial warnings on tobacco products, had diluted the pictorial warnings provision and postponed its implementation on tobacco products many times. 
           
Further, the Union Minister of Labour and Employment, Mr Oscar Fernandes, who is also a member of GoM, told Parliament that “his ministry was receiving representation from various central trade unions such as CITU, the Tobacco Institute of India, Federation of Farmers Association and others particularly relating to apprehension of loss of employment, arrangement of alternative jobs to the affected bidi workers and adverse effect on health among others” (Source: PTI, 21 April 2008). 

c) Mobilising Parliament: On 15 December 2006, Mr. G.K. Sanghi had raised a question in Rajya Sabha about the Government’s response to bidi workers agitating against the proposed printing of skull and bones on bidi packs. Industry smelt success when in May 2007 External Affairs Minister Pranab Mukherjee, a senior member of the Cabinet and also the Chair of the GoM suggested in his letter that the symbol of “skull and cross bones”  in the warnings is likely to offend certain religious communities, who are employed in the bidi industry of Murshidabad (his constituency), as they do not burn their dead. Eventually, Parliament repealed the law to remove the symbol from the warnings.  

d) Moving the courts:  In May 2007, gutka (chewing tobacco) manufacturers in India were attempting to get a court injunction to delay the directive requiring all tobacco products to carry health warnings. Currently there are over 30 cases by the tobacco industry and its allies against pictorial warnings on tobacco packs.  

e) Deploying front groups: In May 2007, the Karnataka Bidi Association said that the directive to print skull and bones on bidi packs would result in a steep decline in its sales adversely affecting the welfare of bidi workers.
           
The All India Bidi Industry Federation had also written to Prime Minister Manmohan Singh that the 2 October 2008 smoking ban has made things tough for the bidi industry. Meanwhile, “we have told the Prime Minister ... that a forced printing of the pictorial (cancer) warning … will lead to a further decline in sales by 30%,” said Rajnikant Patel, president of the All India Bidi Industry Federation to the media. 

f)         Reported Ministry of Health Endorsement of Tobacco-interest Conference: Right after the formal adoption of Article 5.3 Guidelines in November 2008, India’s national tobacco control coalition, the Advocacy Forum for Tobacco Control (AFTC) in India exposed a conference (http://www.tobaccon.org) which claimed to have the support of Ministry of Health and Family Welfare, Government of India and sought to engage the tobacco industry as one of the stakeholders.  

The AFTC formally brought this to the attention of the Health Ministry which reported lack of any formal consent given to the conference organizers. The ministry officials further acknowledged that any association with the tobacco conference would be a violation of Article 5.3 guidelines of FCTC, and brought an end to the speculations about the Ministry’s involvement in this conference. 

“Global South countries have led the way throughout the FCTC process, from treaty negotiations through to the development of guidelines on particular obligations like Article 5.3. Now is the time for India, which joined in the unanimous adoption of the Article 5.3 guidelines at the third session of the Conference of the Parties, to implement them fully and effectively. By using these guidelines to prevent tobacco industry interference in their health policies, developing countries will save millions of lives” emphasizes Kathryn Mulvey. 
Tools to keep the tobacco industry off limits 

Indian governance, legal and administrative system has several regulations and practices that uphold the spirit of the Article 5.3 Guidelines.

 India has completed three years of implementing the Right to Information (RTI) Act in October 2008 and with increasing awareness among people to seek information pertinent to their welfare from the government agencies, it is clearly strategic and vital that tobacco control advocates should use existing provisions in governance to hold the government accountable and increase transparency of its interactions with the industry. This would help uphold Principle 2 of the Guidelines that requires Parties to be accountable and transparent while dealing with the tobacco industry or those working to further its interests.

There is also a rule that bars Government servants from taking employment with the businesses they deal with during their employment for upto 3/5 years of leaving service.
This apart, public interest litigations and investigative journalism could also prove to be effective measures to keep the industry off limits.

 Conclusion 

The fight to enforce public health policies, and put a check on industry interference, is clearly a long and uphill battle. But it is one that could save many lives. Allowing further industry interference will continue to threaten to reverse the advancements made in forging public health policies and implementing them. Meanwhile tobacco continues to kill more than a million people in India and 5.4 million globally, every year.