Articles 9 and 10 of the Framework Convention on Tobacco Control cover the regulation of contents and disclosure of tobacco products. This will be discussed at the upcoming COP11 under agenda item 4.4. 

Our recent article ‘FCTC bureaucrats have decided national delegations just get in the way’  describes how the Secretariat is manipulating the process to deny the sovereign Parties the working group they have asked for.  

This article looks at some of the documents associated with this thorny agenda item, seeking enlightenment on why there has been so little progress.

Key documents for COP11 agenda item 4.4

The documents which delegates are invited to consider are a report authored by the Bureau (FCTC/COP/11/8)  and a report authored by WHO (FCTC/COP/11/9). More on those later. 

The Partial Guidelines
Information which is not contained in documents on the COP11 site, but crucial to any informed discussion about Articles 9 and 10 are the partial guidelines.  Those are here:  https://fctc.who.int/resources/publications/m/item/regulation-of-the-contents-of-tobacco-products-and-regulation-of-tobacco-product-disclosures

Keen readers will notice that the guidelines for addictiveness and toxicity have not yet been developed:

If developed – and, if developed without reliance on junk science – those guidelines would highlight the significant differences in risk between combusted and toxic oral products and the non combusted and far less harmful oral products. 

Here’s a graph  which illustrates those stark differences in risk:

According to the regulatory principle of risk proportionality, the less harmful products (snus, nicotine pouches, vapes, heated tobacco products) should be regulated less stringently than the far more harmful combusted and toxic oral products.  However, that would not fit the WHO and the FCTC secretariat’s prohibitionist mindset, which favours harsh regulation for all consumer nicotine products, regardless of the harms. 

Also relevant is this recent paper, where scientists call for toxicity reduction to be adopted at COP11:

A science-based product regulation: the time has come to reduce toxic emissions to reduce harm
Here are some extracts from that (but please do read the full paper, especially if you are a delegate to COP11!):

“Tobacco control has focused on reducing use, with little emphasis on regulating product toxicity. Articles 9 and 10 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC) offer a mechanism to reduce harm by limiting toxic emissions, but implementation has stalled. A science-based regulatory framework is needed to set emission thresholds for toxicants”

“Articles 9 and 10 of the FCTC regulate content, emissions, and tobacco product disclosures, thereby providing a tool through which harm from tobacco use can be reduced. As the partial guidelines for the implementation of Articles 9 and 10 state, “tobacco product regulation has the potential to contribute to reducing tobacco-attributable disease and premature death by reducing the attractiveness of tobacco products, reducing their addictiveness (or dependence liability) or reducing their overall toxicity” (7). However, the partial guidelines have not provided any guidance with respect to the regulation of harmful constituents and emissions even though this was identified by countries as a priority as far back as the first meeting of the FCTC Conference of the Parties (CoP) in 2006 (8)” 

It would certainly seem common sense for a treaty focussed on the harms from tobacco use to regulate product toxicity.  But this is a huge sticking point for FCTC COP.  And, as we reported in last week’s article, the Secretariat is keen to press on and implement the partial guidelines, even if that means defying the Convention by taking control away from the Parties.  

The roadblock

The current state of stasis is nicely illustrated by this figure contained on page 3 of the WHO’s report to COP11 (FCTC/COP/11/9)

You’ll notice that progress stalled at COP9 and COP10, where no agreement could be reached.  You’ll notice too that those are the COP meetings which saw substantive discussions about the ‘novel and emerging’ products – coincidence, much? 

Now for a bit more on those WHO and Bureau reports…

(FCTC/COP/11/9)Regulation of contents and disclosure of tobacco products
(Articles 9 and 10 of the WHO FCTC) Report by the World Health Organization 

In theory, Articles 9 and 10 only cover tobacco products – and, it’s bad enough that they do, as those include snus and heated tobacco products. WHO is keen to remind COP of this:
“It should be emphasized that the guidance provided in earlier COP decisions, including the recommended regulatory measures, should be applied equally to all forms of tobacco products” (page four). 

To make matters even worse, this report from WHO includes references to WHO publications where they have recommended stringent regulation for all consumer nicotine products, which would include vapes and nicotine pouches.  By implication WHO is suggesting measures for non tobacco containing products – which is not currently mandated by COP. The non exhaustive list of recommended measures includes banning flavours across all products and plain packaging. These would be disastrous for any safer nicotine product.  

As Clive Bates writes, in his excellent ‘Commentary on the Annotated Agenda’ (COP11): 
“the main effect of applying an indiscriminate ban to all products will be to reduce the transition from high-risk to low-risk tobacco products” 

(FCTC/COP/11/8) Regulation of contents and disclosure of tobacco products
(Articles 9 and 10 of the WHO FCTC) Report by the Bureau

The report from the Bureau recommends deferring the establishment or re-establishment of an expert group or working group dedicated to guidelines for implementation of Articles 9 and 10. See our article, ‘FCTC bureaucrats have decided national delegations just get in the way’ for our views on this outrageous denial of the sovereign Parties’ wishes. 

The Bureau also recommends redirecting financial resources to capacity building and technical assistance for Parties for the implementation of Articles 9 and 10 and its unfinished partial guidelines.  Again, this is astonishing – how can the incomplete guidelines be implemented, if they don’t include guidance agreed by the Parties, especially on areas so fundamental to the treaty? 

If agreed, this will give the FCTC Secretariat and the WHO a mandate to support capacity building as they wish – which could include indiscriminate bans or full equalisation of regulation across the risk spectrum. 

In short, it is the WHO and FCTC Secretariat’s distaste for harm reduction which has put the brakes on progress with Articles 9 and 10. We hope that Parties will push back and we will not be surprised if COP11 sees another deadlock on this issue.