TOBACCO PACKAGING AND LABELLING AND THEIR LEGAL CHALLENGES Dr. Winston Abascal ICCTC Director wabascal@gmail.com

ICCTC is one of the Knowledge Hubs created by the COP to gather, synthesize and disseminate knowledge and information to Parties on matters of their expertise in relation to FCTC. 2 2

ICCTC Cooperation activities - Cooperation Forum for Latin America: FCTC implementation - Cooperation Forum for Caribbean countries: Smoke-free environments and health warnings - Costa Rica: National Strategy for Tobacco Cessation

ICCTC Cooperation activities - Ecuador: - Policies on tobacco taxation - Smoke-free environments and Protocol to Eliminate Illicit Trade of Tobacco Products - Colombia: - Assessing on tobacco taxation - Workshop in Montevideo: Interference of tobacco industry (FCTC art. 5.3)

ICCTC Cooperation activities September 2015 South-South and Triangular Cooperation Workshop in Montevideo, for the implementation of the WHO FCTC. Organized by UNDP and FCTC Secretariat in conjunction with ICCTC. With the participation of countries from six regions of WHO and the six Knowledge Hubs.

Purpose of the meeting To facilitate the interaction between providers and recipients of technical assistance in the different aspects of FCTC implementation. South-South and Triangular cooperation is an important tool to support Parties in the implementation of the FCTC.

Cooperation Projects National Coordinating Mechanism Tobacco industry interference Tobacco taxation Pictorial health warnings and plain packaging Cessation of tobacco use Alternative livelihoods for tobacco growers

PROJECT Pictorial health warnings and packaging Parties involved Providers: Panama and ICCTC Uruguay Recipients: Colombia, Senegal, Guatemala y Moldova Triangular support (if any): Canada, Australia, Union, UN Office of South Cooperation, McCabe Center, World Lung Foundation Type of support: situation analysis, capacity building, sharing of information and evidence, technical support, best practice generation, follow-up.

PROJECT Pictorial health warnings and packaging COLOMBIA – Participation of an expert of ICCTC from Uruguay Exchange of knowledge and experiences on design, implementation and impact assessment on health warnings of tobacco products. Advocacy: meeting with parliamentarians and policy makers related to anti-tobacco law. Advise on how to prepare for a potential litigation sued by tobacco industry.

PROJECT Cessation of tobacco use Parties involved Providers: Panama and ICCTC Uruguay Recipients: Bolivia, Colombia, Chile, Georgia, Jamaica and Surinam. Triangular support: FCTC Secretariat and PAHO. Type of support: Situation analysis, capacity building, exchange of information and evidence, technical support and best practice generation.

PROJECT Cessation of tobacco use PANAMA – Participation of 2 experts from ICCTC of Uruguay List of resources National situation analysis Template to develop a National Cessation Strategy and cessation Guidelines (including workplan and timeline). Each country could develop its own road-map Follow-up Unexpected outcome: Countries discovered the role of FCTC Secretariat Knowledge Hubs

OBSTACLES FOR COOPERATION - Insufficient political support for the implementation of the FCTC - Lack of efficient mechanisms for cooperation - Deficiency in data collection - Interference by the tobacco industry

Tobacco packaging and labelling and their legal challenges

Packaging - Package is an important component of the marketing strategy of the industry - It is an effective form of promotion, both at the point of sale and when the product is used - The value of the package increases as other forms of advertising and promotion are restricted 14 14

Packaging - It is used by tobacco industry to promote brand image - It is used to address its message to target populations, such as youth and women - It is used as a means to convey misleading information about health risks 15 15

Health warnings - A means for health authorities to warn about the dangers of tobacco that reach all consumers - They weaken the advertising message given by the industry through the design of the package - It is a cost-effective measure 16 16

Plain packaging Addressed to ban the use of package design elements such as logos, colors or brand images that could suggest that some products are less harmful than others.

Plain packaging has 3 objectives: 1- To increase the visibility of health warnings. 2- To reduce the attractiveness of the package. 3- To reduce the possibility of misleading consumers through the package, about the harmful effects of tobacco use.

Tobacco industry has used legal actions at a national and international level as a means to interfere, hinder or undermine tobacco control measures.

Legal actions filed by tobacco industry - At a national level: Court of Administrative Litigation. Illegality. Supreme Court of Justice. Unconstitutionality. Tobacco industry claims for violation of property rights, trademarks, work, free expression and trade. 20 20

Legal actions files by tobacco industry - At an international level: International Center of Settlement of Investment Disputes (ICSID). 21 21

PHILIP MORRIS AGAINST URUGUAY LAWSUIT PM alleges violation of the 1991 Bilateral Investment Treaty between Switzerland and Uruguay, due to 2 measures: - 80% health warnings - Single presentation requirement per brand

On what aspects did they sue? Expropriation. Violation of intellectual property rights Denial of fair and equitable treatment Obstruction to the use and enjoyment of investments Observance of commitments regarding the use of brands Denial of justice Procedure costs

URUGUAY's POSITION - Consumers have the right to be properly informed about the risks of smoking - States have the right and duty to protect the health of their populations - For decades the tobacco industry denied and concealed that smoking cause addiction, disease and death 24 24 24

Tribunal Award - Philip Morris' claims are dismissed. - Philip Morris shall pay Uruguay's costs and litigation costs, including all fees and expenses of the Tribunal ICSID's administrative fees and expenses.

Elements that led to favorable ruling to Uruguay - It exists a logical connection between the measures and the public health objective - The measures are reasonable, non-discriminatory and proportionate - The history of repeated fraud of tobacco industry - The FCTC is a scientific evidence-based treaty

Elements that led to favorable ruling to Uruguay - The fundamental support through Amicus Curiae received from WHO, Secretariat and PAHO - The support of the international scientific community and civil society - Uruguay formed a team of experts in various subjects with high professional standards and commitment to the task - Defense through a law firm of international level, highly experienced and deeply committed in this case

This award refers to the balance between the rights of investors and the power of States to regulate for public health.

Key issues of the award - “In the Tribunal's view, the adoption of the Challenged Measures by Uruguay was a valid exercise of the State's police powers”. - The challenged measures “have been adopted in fulfillment of Uruguay's national and international legal obligations for the protection of public health”.

Key issues of the award - “Manufacturers and distributors of harmful products such as cigarettes can have no expectation that new and more onerous regulations will not be imposed …” - “In light of widely accepted articulations of international concern for the harmful effect of tobacco, the expectation could only have been of progressively more stringent regulation of the sale and use of tobacco products .”

Key issues of the award - “For a country with limited technical and economic resources , such as Uruguay, adhesion to the FCTC and involvement in the process of scientific and technical cooperation and reporting and of exchange of information represented an important if not indispensable means for acquiring the scientific knowledge and market experience needed …” - “In the Tribunal's view, in these circumstances there was no requirement for Uruguay to perform additional studies or to gather further evidence in support of the Challenged Measures.”

Thank you for your attention Dr. Winston Abascal wabascal@gmail.com 32 32 32