#COP10 documents guide: FCTC/COP/10/9

The one where the WHO tries to redefine smoke and hides inconvenient evidence

To continue the Copwatch guide to documents being provided to ‘educate’ national delegations at the COP10 conference in November, here is a look at FCTC/COP/10/9, published in July. 

This document deals with heated tobacco products but, as we shall see, it is not very impressive. It claims to “examine the challenges that novel and emerging tobacco products are posing for the comprehensive application of the WHO FCTC … as requested in paragraph 3 of decision FCTC/COP8/(22).”

But a quick look at the COP8 decision they refer to shows this does nothing of the sort. In 2018, the WHO asked the FCTC Secretariat:

“to prepare a comprehensive report, with scientists and experts, independent from the tobacco industry, and competent national authorities, to be submitted to the Ninth session of the COP on research and evidence on novel and emerging tobacco products, in particular heated tobacco products, regarding their health impacts including on non-users, their addictive potential, perception and use, attractiveness, potential role in initiating and quitting smoking, marketing including promotional strategies and impacts, claims of reduced harm, variability of products, regulatory experience and monitoring of Parties, impact on tobacco control efforts and research gaps”

Phew, quite a workload! 

The COP8 decision further requested, after that large body of work had been completed, that a report be drawn up to “subsequently propose potential policy options to achieve the objectives and measures” of the FCTC treaty. 

It has been 5 years since COP8 and that decision, but in that time the FCTC Secretariat and their laboratories (known as TobLabNet) appear to have done next to nothing to expand the evidence base. FCTC/COP/10/9 regularly boasts about how very little they know on the subject. 

“Independent … data on the health and environmental impact of these novel tobacco products is incipient” (that’s a posh word for just beginning)

“The knowledge of these novel and emerging tobacco products has been rapidly increasing, but information on their long-term health effects is limited”

“[T]here are limited data available on uptake of HTPs by adolescents, as well as former smokers and non-smokers.” 

It begs the question what, if anything, has the WHO been doing in the last five years since COP8? Countries who have ratified the FCTC treaty do not pay large amounts of taxpayer money for the WHO’s institutions to just sit on their hands for half a decade. Perhaps delegations at COP10 should be asking some searching questions of the Secretariat on the matter. 

Having airily skipped over the yawning chasm of missing research that they were supposed to have gathered on heated tobacco in just four pages, the FCTC/COP/10/9 document then spends the rest of the 18 pages discussing what bans and restrictions should be put in place. Predictably, they demand that heated tobacco should be treated exactly the same as combustible cigarettes, despite HTPs having been found by the UK Committee on Toxicity and the Food and Drug Administration in the United States to be far less harmful than smoking. 

Copwatch also noted the authors of FCTC/COP/10/9 putting on their philosopher’s hat and promoting strange theories of what constitutes smoke. “Can the aerosols of novel and emerging tobacco products qualify as “tobacco smoke?”, they theorize, before answering their own question with a far-fetched explanation. “Yes … strictly speaking, visible aerosols deriving in whole or in part from thermally driven chemical reactions qualify as “smoke”, even when combustion is not involved in the process.”

They are very certain about this, further explaining that “these aerosols are clearly within the scientific definition of “smoke”, and any smoke emitted by HTPs is unambiguously “tobacco smoke.”

The definition of unambiguous is “not open to more than one interpretation” according to Oxford Languages, which will be a surprise to German and Swedish courts who have both found otherwise. 

In September 2021, a decision in a German court struck down the German government’s classification of heated tobacco as “tobacco products for smoking”. A hearing on the merits of a Philip Morris product resulted in the court ordering the Federal Office for Consumer Protection and Food Safety to annul their prior decision and to classify them as “smokeless tobacco products” instead.

A similar case in Sweden in September 2022 came to the same conclusion. The Swedish Public Health Authority (PHA) had decided to classify heated tobacco as “tobacco products for smoking” but was ordered to change this by the court, which held that the PHA’s decision was not in line with any scientific definition of combustion. The court concluded that heated tobacco is not consumed through combustion and “is therefore rightly a smokeless tobacco product.”

Neither the German or Swedish governments appealed the decisions and the definitions are now final and binding in both countries.

Copwatch believes that the WHO is well aware of these court decisions, but just chooses to ignore them. At the foot of the FCTC/COP/10/9 document is an annex which details “several approaches to classify or regulate” heated tobacco in a number of different countries. Note that it says “several” and not all. This is because Germany and Sweden are not amongst them. 

Countries which have ratified the FCTC are allowed to regulate heated tobacco as they wish, smokeless or not, but there are not many cases testing whether the aerosol is smoking or not. In Germany and Sweden there were such cases and the courts decided it is not smoke. 

It would be incredibly inconvenient if the WHO had to admit in its annex that their “unambiguous” definition of smoke is not unambiguous, after all. So they just hide the information from delegates instead. 

To sum up FCTC/COP/10/9, the WHO repeatedly says it does not know much about heated tobacco, but at the same time it is apparent that no work is being done to find out. It recommends treating less harmful products the same as combustible tobacco based on a definition of smoke which is not borne out when tested in court, and it gives the delegations which will be attending COP10 all the information they need to make decisions, except information which the WHO finds inconvenient. 

And we pay for this?