By the book

While the World Health Organization’s narrow focus on smoking cessation suggests otherwise, the FCTC also requires governments to implement tobacco harm reduction strategies.

By Jeannie Cameron

The Framework Convention on Tobacco Control (FCTC) treaty continues to drive the pace of tobacco regulation globally, and while the harm reduction versus cessation debate continues, few have noticed that the FCTC actually supports the case for harm reduction. The FCTC makes clear that harm reduction strategies are part of tobacco control. It provides an obligation on FCTC Parties to not only allow reduced risk products but actively promote them as part of implementing their tobacco control policies based on the most current and relevant scientific, technical and economic considerations—so as to provide for the universal right to the highest attainable standards of health, politically, practically or otherwise.

Article 1(d) of the FCTC defines “tobacco control” as “a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke.” Article 1(f) describes “tobacco products” as “products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing.” Accordingly, the FCTC admits the concept of harm reduction.

The FCTC envisages that parties to the treaty will, among other things, consider harm reduction strategies that eliminate or reduce consumption or exposure to tobacco products/smoke. Tritely, and rhetorically, if the FCTC were not to admit that concept it would, in effect, provide for only those tobacco control strategies and measures that secure cessation. Why does the definition include the word “reduce” in addition to “elimination”? Because each person has the right to the highest attainable standard of health (a right, not an obligation)—see for example Recital 1 and Recital 19 in the preamble to the FCTC: “It is the duty of governments, public health, etc., to promote any and all strategies that are necessary for, or incrementally (howsoever small) conducive to, the attainment of such a standard, which includes any harm reduction strategy that aims to improve health by reducing consumption and/or exposure.”

The FCTC did not anticipate reduced-harm nicotine products such as e-cigarettes. There is, in effect, a regulatory lacuna. The FCTC regulates tobacco products. Nicotine may or may not be made from leaf tobacco. However, the point is moot (and possibly circular), as it is broadly accepted that switching to nicotine products has resulted in reduced smoking and therefore a reduction in the consumption of cigarettes and the risk of exposure to cigarette smoke. Accordingly, the promotion of reduced-harm nicotine products would constitute tobacco control.

Clearly, not everyone views it that way, and the discussion about harm reduction rages on. However, to the common man, the guy in the street, with or without a cigarette or e-cigarette between his lips, the debate is akin to two drunks arguing about who gets the girl—the girl who left with the bartender an hour ago.

Recital 21 in the preamble to the FCTC recites that the FCTC is a result of the resolution of the parties to promote tobacco control measures based on current and relevant scientific, technical and economic considerations. The inescapable fact is that considerations that were current and relevant when the convention was created are no longer current or relevant today, and that there is a need to revisit the provisions of the FCTC to resolve known ambiguities and to put in place regulation that is relevant and provides for the universal right to the highest attainable standards of health, politically, practically or otherwise.

Harm reduction is not defined in the FCTC, but if one were to take the acknowledged definition attributed to Robert Wallace in his Institute of Medicine testimony to the U.S. House of Representatives in 2003—“Tobacco harm reduction refers to decreasing the burden of death and disease without completely eliminating nicotine and tobacco use”—then it follows that the provision of reduced-risk products, such as nicotine-containing products, can be deemed to be tobacco control measures based on current and relevant scientific, technical and economic considerations and should be promoted by parties in implementing their FCTC obligations.

The FCTC provides for the right to health

The FCTC is described as an evidence-based treaty that reaffirms the right of all people (thus including smokers) to the highest standard of health, and it recalls these rights in its preamble. It follows therefore, that any person who chooses to consume nicotine has the right to products that may be deemed “less harmful” as a means of enabling them a higher attainable standard of health than if they consumed combustible cigarettes.

The FCTC preamble states: “The Parties to the Convention, determined to give priority to their right to protect human health [Preamble 1], … recalling Article 12 of the International Covenant on Economic, Social and Cultural Rights adopted by the UN General Assembly on 16 December 1966, which states that it is the right of everyone to the enjoyment of the highest attainable standard of physical and mental health [Preamble 19], recalling also the preamble to the Constitution of the World Health Organization (WHO), which states that the enjoyment of highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition [Preamble 20] ….”

The preamble of an international treaty sets out the context in which the agreement was negotiated and concluded and is generally drafted after the substantive elements of the treaty are agreed. Under general rules of treaty interpretation the preamble is not considered to be part of the legally binding or “operative” text of the agreement, but rather the preamble forms part of the “context” in which the agreement’s obligations must be interpreted. A preamble will often recall and refer to any related international agreements that may have provided the mandate for the negotiations or that the negotiators felt were relevant principles or concepts to the international agreement.

The FCTC has been ratified or acceded to by 180 governments, and in so doing each must assume the obligations. Yet, as we head toward the seventh FCTC Conference of the Parties in October 2016, it is apparent that the right to the highest attainment of health may be in jeopardy as the WHO continues to pursue a cessation-only approach to future policy development. By focusing on cessation-only strategies and measures, it implies that consumers don’t have a right to a safer option, when there is a justified obligation in the FCTC to permit it.

Sidebar:

Hidden in plain sight

While few people realize it, harm reduction is an integral part of the World Health Organization’s Framework Convention for Tobacco Control. Here is what the treaty says on the topic:

• Article 1 (d) defines tobacco control as meaning: “a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke.”
• Article 1 (f) defines tobacco products as meaning: “products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing.”
• Article 3 of the FCTC – Objective states that: “The objective of this Convention and its protocols is to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke.”

The FCTC Preamble, containing the overriding principles of the treaty, states: “The Parties to the Convention, determined to promote measures of tobacco control based on current and relevant scientific, technical and economic considerations.”

In effect, together, this means that parties to the FCTC Treaty (now 180 countries) in implementing national tobacco control strategies or measures should be including not only demand-and-supply strategies and measures, but also harm-reduction strategies and measures as part of FCTC implementation.—J.C.