Health versus trade: the future of the WHO's Framework Convention on Tobacco Control.

• Author: Woo, Alyssa

ABSTRACT

On October 16, 2000, the World Health Organization (WHO) began the first session of negotiations of its first international health treaty, the Framework Convention on Tobacco Control (FCTC). Scheduled for adoption in May 2003, the FCTC is a comprehensive multilateral treaty that will cover everything from tobacco smuggling to tobacco advertising and the extent of the liability of tobacco companies.

This Note argues that even-handed domestic measures implementing the FCTC will be protected from international, trade-based complaints because the World Trade Organization's dispute settlement system has given sufficient and appropriate content to the health exception to the normal trade rules under the General Agreement on Tariffs and Trade. Therefore, this Note suggests that, on balance, a new WHO judicial body would not substantially promote the goals of the FCTC, although treaties that are more technical than the FCTC may suggest a different answer.

1. INTRODUCTION II. WHY SHOULD WE HAVE GLOBAL TOBACCO CONTROL? III. THE WHO AND ITS LEGAL WORK IV. THE SUBSTANCE AND PROCEDURE OF THE FCTC A. The Substance of the FCTC B. The Procedures of the FCTC V. INTERNATIONAL DISPUTE SETTLEMENT, THE INTERNATIONAL JUDICIAL SYSTEM AND THE WHO A. International Dispute Settlement B. The International Judicial System C. The WHO as a Party Before the ICJ VI. THE WTO'S DISPUTE SETTLEMENT SYSTEM A. FCTC Measures as Exceptions to GATT's Rules Against Trade Restrictions B. The Gasoline AB Report C. The Asbestos AB Report D. The Shrimp and Shrimp Compliance AB Reports E. The Application to Tobacco Control VII. AN ALTERNATIVE TO THE WTO? VIII. CONCLUSION I. INTRODUCTION

   Young women in Benson & Hedges T-shirts gave away free cigarettes to the crowd at a beach volleyball tournament in The Gambia, one of Africa's poorest countries. (1) The organizer of this youth event, held during the school holidays, was British American Tobacco (BAT), the producer of the two main cigarette brands in The Gambia: Piccadilly and Benson & Hedges. (2) As the cigarette representatives helped youngsters to light up, a British Broadcasting Corporation (BBC) news investigation observed that some of the consumers of the free cigarettes appeared to be underage. (3) Although samples were only supposed to be given to people over the age of 18, the young women did not check the age of the recipients. (4) When confronted, one woman responded, "We only give free cigarettes to big boys." (5)

   Until recently, The Gambia had been one of the few countries to ban cigarette advertising. (6) After the ban was lifted about five years ago following a military coup, cigarette sales in The Gambia doubled almost overnight. (7) Now, in a nation where youth soccer teams cannot even afford soccer balls, multinational tobacco corporations market their products by handing out free cigarettes at football tournaments, music concerts, and parties. (8)

   In response to the BBC news investigation, BAT stated that it would "re-brief" its Gambian programs to make sure that children under 18 did not receive free cigarettes. (9) Dr. James Mwanzia, the World Health Organization's (WHO) representative in The Gambia, commented, "It is the height of hypocrisy, because how do you sponsor a health event like a volleyball match and then give out cigarettes?" (10) Clive Bates, director of Action on Smoking and Health, remarked, "As soon as they think no one is looking, they are going after the teenage market." (11)

   The Gambian experience is only one case of the global tobacco epidemic promoted by the tobacco industry. The seriousness of the tobacco epidemic cannot be doubted. In Africa, a recent WHO survey found that one in five children under the age of 15 now smoke. (12) Worldwide, smoking kills one in ten adults every year, making it the leading cause of preventable death. (13) Country-specific analyses of the tobacco industry by the World Bank in collaboration with the WHO find that tobacco addiction imposes high opportunity costs on many poor households, who spend significant proportions of their income on tobacco instead of on nutrition and other family needs. (14)

   By 2030, the World Bank predicts that smoking will kill about one in six adults globally per year. (15) Most of the projected deaths will occur in low and middle-income countries. (16) As markets in industrialized countries decline, and as tobacco companies target developing countries and the world youth, the disease burden caused by tobacco usage increases at an alarming rate. (17) The WHO hopes to curb these threats to human health through its first treaty, the Framework Convention on Tobacco Control (FCTC or Convention). (18)

   This Note argues that although certain discriminatory domestic measures have been struck down in the past under the dispute settlement system of the World Trade Organization (WTO), evenhanded domestic measures implementing the FCTC should withstand scrutiny because WTO case law has given sufficient and appropriate content to the exception for health under Article XX of the General Agreement on Tariffs and Trade (GATT). This Note also argues that a new WHO judicial body would not be desirable at this point, although future, more technical treaties would present a stronger case for that type of organ.

   Part II frames the debate surrounding global tobacco control. Part III introduces the WHO and its lawmaking prior to the FCTC. Part IV outlines the FCTC's substantive and procedural features and highlights sections of the FCTC that could lessen its effectiveness. Part V provides background about the international judicial system and the WTO's dispute settlement system. Part VI examines the WTO's trade agreements and decisions as they apply to the FCTC. Part VII argues that, on balance, a new WHO judicial body is not yet necessary to promote the goals of the WHO with respect to the FCTC.

   Because the FCTC is scheduled for adoption in May 2003, (19) this Note assumes that a positive course of events will occur. For example, the U.S. adoption of the FCTC via the president's executive treaty power with the requisite concurrence of two-thirds of the Senate is assumed. (20) Another assumption is that domestic legislation in Member States accurately implements the terms of the treaty. This Note looks down the legal road to evaluate the possible conflicts with the FCTC and ways to promote the WHO's health objectives in the event that international disputes and judicial law-making follow the adoption of the FCTC.

2. WHY SHOULD WE HAVE GLOBAL TOBACCO CONTROL?

   Just as treating malaria cannot be done without understanding the behavior of its vector, the mosquito, an understanding of the tobacco business and the evolution of its business defenses is necessary to the cure for the tobacco epidemic, according to Dr. Gro Harlem Brundtland, Director-General of the WHO. (21) In the early stages of the debate about tobacco and tobacco control, the industry denied that tobacco was dangerous. (22) However, as researchers described the increased risks of heart disease and cancer with increasing certainty, the tobacco industry began to make economic arguments against tobacco control and to use secret financial and political strategies. (23)

   Formerly confidential tobacco company strategy documents that are now publicly available demonstrate the scale and intensity of the industry's global efforts to protect the tobacco business. (24) They prove that the tobacco industry has systematically used secretive and unprincipled means to discredit legitimate organizations like the WHO that push for tobacco control. (25) Statements of tobacco objectives contain specific references to the WHO: "Attack W.H.O.," "[Try] to stop the development towards a Third World commitment against tobacco," "Discredit key individuals," "[Contain WHO's] funding from private sources," "Work with journalists to question WHO priorities, budget, role in social engineering, etc.," and "[Establish] ITGA [International Tobacco Growers Association] [as a] front for our third world lobby activities at WHO." (26) These documents state that "WHO's impact and influence is indisputable" and that the industry must contain, neutralize and reorient the WHO to protect the tobacco business. (27)

   Based on economics, the tobacco industry has argued that lower sales of tobacco cause the loss of thousands of jobs, a decrease in government revenues, and an increase in illegal activity--especially smuggling. (28) However, the World Bank noted that government intervention through tobacco control is justified due to the unique characteristics of tobacco consumers. (29) Unlike the average consumer, many smokers are young and addicted to tobacco, and therefore lack the normal capacity to make rational, self-interested decisions. (30) Many smokers also lack complete and accurate information about the risks of tobacco consumption. (31)

   The World Bank concluded that tobacco control is very desirable because even small reductions in a disease burden of such large size bring highly significant health gains. (32) The World Bank deemed the tobacco industry's policy arguments to be unpersuasive, given that new jobs replace old jobs, tobacco taxes empirically increase government revenues, and tobacco taxes still reduce consumption and increase revenues in places where smuggling is high. (33)

   The World Bank, therefore, recommended a "multi-pronged" approach to tobacco control. (34) It advised governments to combine taxes with non-price measures (such as advertising bans), information measures (such as mass media counter-advertising, warning labels and research dissemination), and restrictions on smoking in work and public places. (35) Other recommendations by the World Bank included widening access to nicotine cessation therapies, and making sure that tobacco control was prominently considered in the policies and programs of international agencies, such as the agencies of the United...