Industry Exclusion from the Policy Process
Article 5.3 (WHO) of the Framework Convention on Tobacco Control (FCTC)
Article 5.3 of the WHO Framework Convention on Tobacco Control states: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”
It does not advocate total industry exclusion from the regulatory process or from dealing with those authorities tasked with regulating the tobacco industry in Ireland or Europe. This would be contrary to the better regulation principles of the OECD, EU and UN which calls for the inclusion of all stakeholders in any regulatory process.
Two of the guiding principles within the non-binding 5.3 guidelines state:
- Parties when dealing with the tobacco industry or those working to further its interests should be accountable and transparent.
- Parties should require the tobacco industry and those working to further its interests to operate and act in a manner which is accountable and transparent.
Itmac firmly believes that all interactions between Government and various stakeholders and vested interests should always be conducted in an open and transparent manner.
Itmac accepts that tobacco products carry risks to health, and so believes that appropriate and proportionate regulation is both necessary and right. Article 5.3 provides an opportunity to improve the transparency, inclusivity and integrity of the regulatory process generally. In our view, legislative legitimacy, effectiveness and good regulation flow from processes that include stakeholder participation from all viewpoints.
Any lobbying activity carried out by both Itmac and its members is publicly documented on the Irish Lobbying Register to ensure transparency. The Act which governs this lobbying activity (Regulation of Lobbying Act 2015), does not aim to prevent or inhibit lobbying and acknowledges that lobbying is an essential part of the democratic process.
Furthermore, independent legal advice has been sought on Article 5.3 and this interpretation states that:
“The provisions of the FCTC, do not render communications between the Irish Government and the tobacco industry illegal. The FCTC Guidelines recognise expressly that communications will (as a matter of course) occur between the tobacco industry and Governments of Countries who are parties to the FCTC but suggests that those communications must be “open” and “transparent”. The FCTC does not require each party to the Treaty, to enact national legislation which would outlaw all communications between the tobacco industry and its Government.”
Additionally, “It would frustrate the objectives of the FCTC if the Tobacco industry was precluded from sharing information, its expertise and its opinions with the Irish Government in relation to the best way to achieve a reduction in the illegal trade of tobacco, or the interdiction of cross-border smuggling which may, by its very nature, have adverse impacts on (a) public health in this jurisdiction and (b) public finances in this jurisdiction. There is nothing in the FCTC which precludes the Irish Government, in the exercise of its discretion from communicating in an open and transparent way with the tobacco industry in relation to matters affecting public health and the public interest.”