1. Introduction

This submission contains comments to the World Health Organization on its Framework Convention on Tobacco Control.1 This Framework Convention is based on similar efforts by the United Nations (of which the WHO is a part) on such matters as the 1992 Convention on Biological Diversity and the 1992 Kyoto Convention on Climate Change. The Framework Convention process involves negotiating an overarching treaty followed by a series of protocols, each of which must be approved individually by the various nations through treaty-making powers. Once approved by the member states, the Tobacco Control treaties would have the force of law, just as with the World Trade Organization and North American Free Trade Agreements. The Framework Convention also creates various institutions including an international body -- the Conference of the Parties, already in existence, with "secretariat" functions to be assigned from the WHO Secretariat -- whose responsibilities will include monitoring compliance by the treaty signatories ("Provisional Texts" 2000).

WHO has already set forth a broad agenda for the treaty protocols. Some parts of this agenda have, to varying degrees, already been enacted by many nations. Obvious example are higher taxes and advertising restrictions or bans (with a comprehensive ban now being implemented by the European Union). Other parts of the proposed agenda, however, would be radical departures for many nations. These include a virtual prohibition on information from manufacturers about cigarette yield, and the inauguration of mass litigation seeking unlimited damages payments from cigarette manufacturers.

The WHO’s Framework Convention treaty process is expected to require some three additional years before any treaties are actually passed. This process raises a number of questions about such matters as the process by which the treaties will be negotiated and the substance of the proposed treaties. In this brief comment, I discuss three issues of substance: (a) the wisdom a establishing minimum levels of tobacco control among nations; (b) the strong possibility of adverse unintended consequences from the specific policies advocated by WHO; and (c) whether an alternative approach is likely to be more effective. Throughout, I take it for granted that smoking causes many illnesses including lung cancer and heart disease, and that the health of billions of persons would improve if everyone stopped smoking. Nonetheless, one must ask whether the WHO plan would actually promote the most fundamental goal, which is to reduce the health harms from smoking.

2. Some Problems with a Uniform International Approach

The Framework Convention on Tobacco Control would not actually impose identical policies across nations. But it would impose minimum standards for policies, and those minimum standards would serve as the lowest acceptable levels of severity. Taxes, for example, would be raised to the point of comprising at least two-thirds the retail price of cigarettes (and cigarette prices would be removed from the consumer price index), while advertising restrictions would be quite stringent albeit not necessarily reaching the level of a complete ban (see World Health Organization, "Provisional Texts," p. 6 and 8).

The underlying premise is that the more onerous the restrictions or penalties, the greater will be the benefits for public health. This premise is highly questionable. Successful public health policy toward tobacco ultimately relies upon the decisions of smokers and potential smokers in a context dominated by traditions, social forces including family and peer influences, information and advice from health care workers and others, all in addition to commercial marketing. There is no guarantee that the greatly enhanced restrictions and penalties outlined for the treaty protocols will actually lead to less smoking or less exposure to the toxic constituents of tobacco smoke. This is clear from experience in the United States, Canada, and the United Kingdom. Until recently, none of these nations were in the forefront of movements toward advertising restrictions (which the WHO wishes to accelerate). All three nations (especially the U.S.) were pioneers in the marketing of low-yield cigarettes (which the WHO would discourage). Nonetheless, WHO data show that cigarette consumption in these three nations has declined faster than in virtually any other nation during the past three decades (WHO 1996). Moreover, the greatest declines in total consumption and in youth smoking in the United States occurred before the advent of mass litigation against the industry in the 1990s (data available from the U.S. Centers for Disease Control).

This illustrates a basic point, which is that it is far from clear that the same policy is the best for all nations and all circumstances. WHO should beware of falling into the trap of thinking that a uniform set of standards for all nations would be the best approach from the standpoint of smoking and health.

3. The Dangers of Unintended Consequences

There are number of respects in which the proposed Framework Convention treaty protocols could easily have consequences inimical to the larger goal of reducing the health costs of smoking.

Disincentives for harm reduction and safer smoking: Many of the documents, proposals and plans issued by WHO in connection with the Framework Convention incorporate the assumption that the prime goal of public policy is the complete cessation of smoking, with the implication that harm reduction measures (or "exposure reduction" through reduced yield cigarettes) should be subordinated to the goal of cessation. Of the four alternative formulations of the fundamental "Objective" for the Framework Convention, three prescribe a reduction in tobacco use as the sole route to improvements in the health consequences of tobacco use (WHO "Provisional Texts," p. 5), with no provision for less harmful tobacco use.

This is unfortunate. The encouragement of safer tobacco use -- as a component of "harm reduction" or "exposure reduction" -- is useful for several reasons. One is the fact that the adoption of existing western cigarettes would provide immediate and substantial health benefits for smokers in much of the underdeveloped world. Although this point remains controversial, it has been incorporated in much of E.U. law (which like laws in many nations places a ceiling on tar content; see World Health Organization, "Tobacco or Health Country Profiles: U.K."), and has been strongly endorsed by leading epidemiologists and health experts (e.g., Gray 1996) and by expert government reviews including the 1998 consensus report from the U.K. (see U.K. Department of Health 1998). Moreover, it is quite likely that cigarettes far safer than anything now available are technologically feasible and could be successfully marketed -- if regulatory institutions do not stand in the way (see, e.g., Shiffman, Mason, and Henningfield 1998). In fact, WHO has itself advocated exposure reduction, presumably to be achieved by encouraging smokers to switch to lower yield cigarettes as well as through the development of improved cigarettes including novel designs that provide nicotine with few toxic contaminants. Thus a recent "Secretariat Update," from a February 2000 WHO meeting on regulating tobacco products, noted that "Policies to lower exposure must take into account the need to reduce harm significantly while avoiding decreased rates of quitting or increased initiation of tobacco use. Although various recommendations indicate the need for additional research, countries are urged to act rapidly on the basis of existing knowledge."

The marketing of safer cigarettes would also emphasize the dangers of smoking, thus improving the information environment surrounding smoking. This was pointed out by the Imperial Cancer Research Fund (1999, p. 3-3), "To recover the costs [of improved cigarettes], the manufacturers would need to market the benefits of reduced harm" (more generally, see Ringold and Calfee 1990).

Nonetheless, the draft proposals for the Framework Convention treaty protocols include a blanket restriction on any claims that would suggest that "a particular tobacco product is less harmful than others" ("Provision Texts," p. 10). Moreover, WHO proposals include a ban on the use of existing tar and nicotine numbers (which are generated according to I.S.O. methods). No alternative measurements are available. The effect is to discourage developments that could greatly reduce the health costs of smoking.

The consequences of mass litigation: Among the basic goals of the Framework Convention on Tobacco Control is litigation with the goal of extracting essentially unlimited financial compensation from cigarette manufacturers (with this compensation to be paid primarily by smokers because the present value of future damages payments far exceed the net worth of tobacco manufacturers; see, for example, Bulow and Klemperer 1998). The prospect of tobacco litigation has assumed a central place in WHO's approach. This is exemplified in various public statements by WHO leaders, as well as a recent paper issued by WHO under the title "The Prospects for Globalizing Tobacco Litigation." The paper was written by an American plaintiff attorney who was active in breast implant litigation, asbestos litigation and the Minnesota tobacco litigation, and has since become a Global Health Leadership Senior Fellow at WHO (Walburn 2000; Associated Press 1999). Also notable is the fact that the use of formerly private industry documents released through litigation in the United States is regarded as a crucial part of this aspect of the Framework Convention approach to smoking and health. The presumption is that the combination of intense publicity, massive new information about smoking and the marketing of cigarettes, and higher prices -- all generated by litigation -- is bound to dramatically decrease smoking, especially by young people. This is very unlikely (although higher prices would have some effect). Smoking by high school students in the United States today is substantially higher than it was in the early 1990s before the current wave of litigation began (see Johnston 1999). This is even true in the state of Minnesota. Despite the fact that the Minnesota lawsuit proceeded through a formal trial and released the huge cache of documents that WHO plans to rely upon, teen and young adult smoking in Minnesota has increased rather than decreased in recent years (see Minnesota Public Radio 1999 and St. Paul Pioneer-Planet 1999). Although it has not visibly reduced smoking, litigation has already had the presumably unintended effect of burdening smokers with the cost of paying for numerous government projects that have little or nothing to do with the health harms wreaked on smokers (as documented almost daily in the U.S. news media). This has had the effect of making government finances more dependent on the continuation of smoking.

The dangers of an increased government stake in continued smoking: Progress in reducing smoking has come most rapidly in nations such as the United States, where the government has not owned cigarette firms and (because taxes were modest) the government has had a very limited financial stake in smoking. The WHO plan raises the possibility of increasing (or failing to reduce) the financial stake of various governments in smoking, especially in financially strapped developing nations. This can happen in several ways. One, just mentioned, is mass litigation with billions of damages payments paid to governments. Hence a recent Washington Post editorial, which surveyed the latest developments in state government attempts to preserve the flow of monies from the November 1998 global settlement with the cigarette industry, carried the headline, "Who’s Addicted?" (Washington Post, March 26, 2000).

Another source of an increased government stake in smoking is higher taxes. In the United States, cigarette taxes have for some time more than covered any health care costs imposed by smokers on the rest of society, including those imposed on governments (see Viscusi 1994). The same is likely to be true of other nations, even ones with socialized health care. This means that cigarette taxes have become what amounts to a profit center for governments.

Finally, the continued state role in manufacturing and marketing cigarettes in China and other nations provides a strong and direct government stake in smoking. It has been estimated that tobacco profit and taxes account for approximately one-eighth of the Chinese government’s revenues (Washington Post, November 20, 1996). Unfortunately, WHO appears to adhere to the view state ownership is preferable to private ownership of cigarette manufacturing firms (see Chitanondh 2000, published by WHO in preparation for its March 2000 Geneva conference on the Framework Convention).

4. An Alternative Approach

What has reduced smoking so dramatically in many western nations has been the steady accretion of information about the health effects of smoking, great improvements in cigarettes, and a vast shift in attitudes toward smoking (led by health care workers and researchers). The developing nations can easily avail themselves of the best available research on smoking and health. They can also encourage -- rather than discourage, as the WHO proposal would have them do -- the adoption of less harmful methods of tobacco use as they become available.

Changes in attitudes will not come so easily. We cannot expect Japanese and Chinese men -- who smoke far more than American, Canadian or British men -- to give up their habits while their physicians and leaders continue to smoke. The correlation between smoking by health care providers and ordinary citizens appears to be very high. Even in the advanced economies of France and Japan, where male smoking continues at levels very high by American standards, a 1993 report found that the proportion of physicians who smoke is above 40% -- as was also true in Italy, Spain and Turkey (Morbidity and Mortality Weekly Report 1993). In the U.S., the proportion appears to be less than 10% (Pierce and Gilpin 1994). In China, a large proportion of physicians smoke, and 63% of men smoke. This is despite the fact that Chinese cigarette prices in comparison to income are extremely high, so that the average smoker has been estimated to spend 25% of his/her disposable income on smoking (see Yang et all 1999).

Thus WHO can usefully focus on two things: supporting a shift in attitudes and leadership, especially in the health care community; and permitting the marketplace to make tobacco use safer (an essential step because it is clear that a substantial proportion of the world’s population will not soon quit smoking).

Notes

Associated Press, Oct. 5, 1999, "Veteran Tobacco Litigators Help WHO Fight Industry."

Bulow, J. I., and Paul Klemperer (1998) "The Tobacco Deal," Brookings Papers on Economic Activity

Chitanondh, Hatai (2000) "Ownership of Tobacco Companies and Implications on Health," World Health Organization.

Gray, Nigel (1996) "The Global Cigarette." 313 British Medical Journal 1348 (Nov., 30, 1996).

Imperial Cancer Research Fund (1999) "The Safer Cigarette: What the Tobacco Industry Could Do . . . and Why it Hasn’t Done It," March 3, 1999.

Johnston, Lloyd D., et al. (1999) "Monitoring the Future Study," University of Michigan.

Minnesota Public Radio, October 6, 1999, "Putting Out the Fire; The Teen-Smoking Comeback," by Laura McCallum.

Morbidity and Mortality Weekly Report (U.S. Centers for Disease Control), v. 2, n. 19, May 21, 1993), "Smoking Control Among Health-Care Workers: World No-Tobacco Day, 1993.

Pierce, J.P., and Elizabeth Gilpin (1994) "Trends in Physicians’ Smoking Behavior and Patterns of Advice to Quit," in U.S. Department of Health and Human Services, Public Health Service, National Cancer Institute (1994) Tobacco and the Clinician: Interventions for Medical and Dental Practice. Smoking and Tobacco Control Monograph No. 5, p. 12-23.

Ringold, Debra Jones, and John E. Calfee (1990) "What Can We Learn From the Informational Content of Cigarette Advertising? Further Analysis and a Reply," Journal of Public Policy and Marketing, vol. 9, pp. 30-41.

Shiffman, S., K. M. Mason, and J. E. Henningfield (1998) "Tobacco Dependence Treatments: Review and Prospectus," 19 Annual Review of Public Health 335-58.

St. Paul (Minnesota) Pioneer-Planet, Nov. 18, 1999, "Smoking skyrockets among ‘U’ students."

U.K. Department of Health (1998) Report of the Scientific Committee on Tobacco and Health.

U.S. Department of Health and Human Services, Office of Public Health and Science, "Comment Period and Public Meeting: Framework Convention on Tobacco Control," Federal Register, Volume 65, Number 38, February 25, 2000.

Viscusi, W. Kip (1994) "Cigarette Taxation and the Social Consequences of Smoking," National Bureau of Economic Research Working Paper No. 4891 (October).

Walburn, Roberta B. (2000) "The Prospects for Globalizing Tobacco Litigation," presented at the WHO International Conference on Global Tobacco Control Law: Towards a WHO Framework Convention on Tobacco Control," New Delhi, India, Jan. 2000.

Washington Post, Nov. 20, 1996, p. A1, "Big Tobacco’s Global Reach: Vast China Market Key to Smoking Disputes," by Glenn Frankel and Steven Mufson.

World Health Organization (1996) Tobacco Alert, April.

World Health Organization, "Provisional Texts of Proposed Draft Elements for a WHO Framework Convention on Tobacco Control," 29 Feb. 2000.

World Health Organization, "Secretariat update on progress since the first meeting of the working group: Report to the working group from the Oslo conference," 3 March 2000.

Yang, Gonghuan, Lixin Fan, Jian Tan, Guoming Qi, Yifang Zhang, Jonathan M. Samet, Carl E. Taylor, Karen Becker, and Jing Xu (1999) "Smoking in China: Findings of the 1996 National Prevalence Survey," 282/13 Journal of the American Medical Association 1247-1253.

John E. Calfee is a resident scholar at AEI.