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RUCNDT/USMISSION USUN NEW YORK 2853

UNCLAS GENEVA 000921 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: AORC PREL PGOV SOCI WHO
SUBJECT: WHO: SECOND SESSION OF THE INTERGOVERNMENTAL 
NEGOTIATING BODY (INB2) ON A PROTOCOL ON ILLICIT TRADE IN 
TOBACCO PRODUCTS UNDER THE FRAMEWORK CONVENTION ON TOBACCO 
CONTROL (FCTC) 
 
¶1.  Summary.  INB2 met October 20-25, 2008, in Geneva to 
develop a protocol under the FCTC to combat illicit trade in 
tobacco products.  It was attended by representatives of 133 
Parties to the FCTC, as well as 16 State non-Parties 
(including the United States), two intergovernmental 
organizations, and nine nongovernmental organizations 
accredited as observers to the Conference of the Parties 
(COP).  Under the guidance of the Chair, Ian Walton-George of 
the  European Anti-Fraud Office, the INB accepted the 
"Chairperson's text for a protocol on illicit trade in 
tobacco products" as the basis for negotiations.  The INB 
also endorsed holding a third INB from 28 June to 5 July 2009 
in Geneva and authorized a fourth INB in 2010, if necessary. 
The INB requested the Secretariat to arrange for expert 
reviews on a number of elements of the draft protocol, such 
as the feasibility of an international system for tracking 
and tracing, the relationship of the protocol to other 
relevant international agreements, the treatment of sales via 
the internet, and the relationship between illicit trade and 
duty free sales.  The INB also asked that WHO regional groups 
be able to consult prior to INB3.  End summary. 
 
BACKGROUND 
 
¶2.  The FCTC is the first global public health treaty 
negotiated under the auspices of the World Health 
Organization (WHO) and is viewed by many countries as an 
important basis for advancing tobacco control measures 
internationally. The FCTC targets both the demand and the 
supply of tobacco products by requiring Parties to adopt 
measures on smoking prevention and cessation, the placement 
of health warnings on packaging, restrictions on tobacco 
advertising and sponsorship, prohibition on cigarette sales 
to minors, establishment of clean indoor air controls, and 
implementation of effective measures to combat illicit 
tobacco trade, among others. 
 
¶3.  The FCTC entered into force on February 27, 2005, and has 
been ratified by 160 WHO member States.  The United States 
has signed but not ratified the FCTC and participates in the 
COP and related meetings as an Observer. 
 
PROCESS 
 
¶4.  INB2 examined the Chairperson's text through the plenary, 
two committees (A and B) that met concurrently, and a working 
group that examined the scope and definitions of the 
protocol.  General obligations and institutional and 
financial matters were discussed only in principle, 
recognizing the need for more detailed discussions in the 
future.   The Parties also discussed the scope and the title 
of the protocol and references to the primacy of public 
health and to the linkage between illicit trade and the 
tobacco industry.  The U.S. did not participate in Committee 
B or working group discussions.  The reports produced by the 
committees and the working group were discussed in plenary to 
allow smaller delegations full participation before the INB 
plenary approved the reports. 
 
¶5.  Committee A discussed issues contained in Part III of the 
Chairperson's Text, which addresses "supply chain control" 
such as licensing, customer identification and verification, 
tracking and tracing, record-keeping, security and preventive 
measures, and internet and duty free sales.  This committee 
also discussed selected provisions of Part IV of the 
Chairperson's Text, including search and seizure, special 
investigative techniques and destruction of confiscated 
property. 
 
¶6.  Committee B discussed the remaining Part IV issues, such 
as offenses, liability, and sanctions, and the Part V 
(International Cooperation) issues of information sharing, 
confidentiality protection, training, law enforcement 
cooperation, jurisdiction, mutual legal and administrative 
assistance, and extradition. 
 
KEY ISSUES DISCUSSED 
 
¶7.  Track and Trace:  The "make or break" issue for the 
protocol is the establishment of a mandatory international 
 
 
track and trace system.  There was significant discussion on 
the scope of such a system.  A majority of delegations, led 
by the European Community (EC), wanted such a system to cover 
not only tobacco products but also raw tobacco and the 
equipment (including parts) used to make the tobacco 
products.  (Note: the EC was silent on tracking and tracing 
raw tobacco but wants to include "acetate tow," an ingredient 
used to make cigarette filters that is made by only seven 
manufacturers in the world.)  A significant minority, led by 
Brazil, wanted to limit the system to tobacco products. 
Japan and many developing countries expressed concern that a 
track and trace system would have to be based on very costly 
and sophisticated technology.  Developing countries added 
that they would need financial and technical assistance as 
well as "capacity building" to comply with a future protocol. 
 There was also significant discussion on whether the track 
and trace system should be mandatory, based on minimum 
international standards (EC), or only in a manner consistent 
with domestic law (Canada and Japan).  Moreover, for a track 
and trace system to work, most countries favored imposing 
"due diligence" and "know your customer" requirements on all 
of the entities involved in the "tobacco growing, 
manufacturing, and distribution chain."  Tracking and tracing 
was one of the areas where the Chairperson and the INB agreed 
that further study by experts and working groups was required 
prior to the next INB. 
 
¶8.  Licensing:  There was consensus that licensing, or a 
regulatory program that provides similar results, was 
essential to a protocol.  However, there was considerable 
debate as to which entities should be licensed.  There was 
significant support for licensing on the broadest scale - 
tobacco growers, leaf processors and dealers, manufacturers 
of tobacco products and the machinery that makes them, 
transporters, wholesalers, importers, and retailers.  A large 
number of Parties preferred excluding growers and retailers 
from a mandatory system.  Several delegations also favored 
charging licensing fees with the resultant funds being 
dedicated to public health measures.  Other delegations 
voiced opposition to requiring fees and to earmarking the 
collected funds. 
 
¶9.  Internet and Duty Free Sales and Sales in Free or Foreign 
Trade Zones:  The vast number of Parties favored banning 
internet and duty free sales of tobacco products.  For the 
first time in the negotiations, a significant number of 
Parties voiced support for prohibiting the sale of tobacco 
and tobacco products in free or foreign trade zones, while 
others advocated prohibiting "any tax, regulatory or other 
advantages that apply to free or foreign trade zones to 
tobacco and tobacco products."  Japan (internet and duty 
free) and Barbados (duty free) explained that other measures 
to control the sale of these products were available that 
were not as drastic as complete and total bans.  The EC asked 
the Secretariat to provide a legal opinion as to whether 
internet and duty free sales could actually be banned under 
the rules of the World Trade Organization. 
 
¶10.  Relationship of the Protocol with Other International 
Agreements:  Part IV and the remainder of the Chairperson's 
Text contain provisions "borrowed" from pre-existing 
agreements, such as the United Nations Convention Against 
Transnational Organized Crime (UNCTOC or Palermo Convention) 
and the UN Convention Against Corruption.  For example, the 
"confiscation and seizure of assets" provision of the 
Chairperson's Text is almost a verbatim copy of Article 12 of 
UNCTOC.  Australia and the United States voiced concern that 
incorporating provisions from other agreements may raise 
issues of treaty interpretation (not only with regard to the 
protocol but the text of the "host" agreement), particularly 
if such incorporation were not done "by reference" and 
without first consulting with the governing bodies of the 
incorporated agreements.  The INB requested the COP 
Secretariat to consult with the appropriate governing bodies 
before INB3. 
 
CONCLUSION 
 
¶12.  Chairperson Walton-George will present a report on INB2 
at the COP3 meeting to be held in Durban, South Africa, on 
 
 
November 17-22, 2008. 
 
STORELLA