Some key elements of legislation for tobacco control include the following:
Legislation creates, legitimizes and finances an authority to implement and direct a legislative and policy programme for tobacco control in a country. This may be a centralized office within the Ministry of Health or another agency. It may include several agencies as in Brazil (where a national committee for the WHO FCTC was also created) or a multisectoral coordinating body as in Australia and Thailand.
Legislation can also provide for a funding mechanism by prescribing, for example, that a portion of revenue generated by cigarette taxes can be earmarked to fund part or all of the tobacco programme as has occurred in Australia, Canada, Ecuador, Finland, Iceland, Malaysia, Nepal, the Republic of Korea, Switzerland, Thailand, Uruguay and some States of the United States of America. The creation of a national coordination mechanism or focal point for tobacco control by States Parties is a requirement under Article 5 of the WHO FCTC.
Legislation requiring mass public education campaigns is an important vehicle for changing public attitudes regarding tobacco and tobacco control. Mandatory aggressive, well-funded counter-advertising campaigns, using multiple messages maintained over a long period of time for example in the states of California and Massachusetts in the USA, Ecuador, Malaysia, Peru and Romania have been shown to contribute significantly to reduced tobacco use in youth and overall tobacco consumption. Legislation ensures a binding obligation on the public authority and ensures permanence of public educational programmes for tobacco control.
A comprehensive ban on tobacco advertising, promotion and sponsorship is at the core of effective tobacco control legislation and programme generally. A comprehensive ban involves a ban on all forms of direct and indirect advertisements, promotion and sponsorship. Examples of best practices on ban of advertisements include Ireland, Norway, India, New Zealand, Thailand and Iran.
Price and tax measures are an important and effective means of reducing tobacco consumption, especially among young people. Raising taxes and hence the price of cigarettes and other tobacco products, has a double advantage: it not only generates revenue for government, but also produces a prompt decline tobacco use, particularly among young people and low income groups. For example, there are case studies of well implemented price and tax measures from Norway, South Africa among others.
France has also raised tax rates to raise the price of cigarettes by at least 5% each year in the past decade. The World Bank recommends that the tax component of a retail pack of cigarettes in countries developing comprehensive tobacco control measures must be between 2/3 and 3/4 of the total retail cost. WHO advises governments to raise the real price over and above inflation regularly. Fiscal legislation in all countries imposes taxes on a variety of goods, including tobacco. For example, a legal provision in a tobacco control law on the raising of taxes of cigarettes would trigger a corresponding amendment of the tax/fiscal law schedule of cigarettes that tax on these are being increased.
Eliminating smoking in workplaces and public places protects workers and non-smokers from the hazards of exposure to tobacco smoke, discourages smoking initiation, reduces consumption and promotes cessation changing the social acceptability of smoking; Norway and Ireland have successfully adopted legislation banning smoking in all public places. Malta and Sweden are following suit. Other examples include several states/provinces and cities in many countries such as Canada, and the United States of America such as California and New York City.
Legislation in these countries and localities has created a comprehensive legal regime of standards and compliance and enforcement tools for the implementation of the bans. For example, a report on the implementation of the Irish smoke-free law showed that 94% of the inspected premises were compliant. The factors that account for the compliance include public education and support for the law, the use of enforcement tools such as hefty fines of 3000 Euros, prosecutions and other sanctions. The bans on public smoking in these countries have also being adopted alongside other complementary programmes of education and awareness and cessation schemes(9).
This set of provisions encompassing Articles 9, 10, and 11 is targeted at the regulation of the manufacturing and distribution of tobacco products. The scientific basis for the principles guiding the implementation of Articles 9 and 10 establishes the rationale for the principles guiding the implementation of Article 11. For this reason and in order to achieve the synergistic effect of these provisions, all three articles should be treated as one set of regulations. Regulatory authority for tobacco products should be delegated to a specialized agency within a ministry or department of government to address such matters as issuing and enforcing the regulations that require manufacturers to:
Tobacco product regulation is an area where drafting needs to be in a way that loopholes are thwarted, unlike in the present when manufacturers are not required to disclose product characteristics, such as ventilation holes, thereby allowing manufacturers to evade regulation on allowable limits of tar, nicotine, and carbon monoxide (TNCO) because the TNCO that should be part of the total smoke yield to be tested escapes via the ventilation holes before it gets tested. As part of the regulatory mandate, it is essential that the agency delegated with the task has enforcement authority.
For example, the agency should have the authority to issue penalties -- graduated penalties for late or incomplete disclosure where, in the first instance, could result in a warning, the second could result in a fine which should be high enough to be a deterrent against a reoccurrence, and the third could be the revocation of the license to manufacture the product. Of course, part of the regulation should also include provisions for an appeal for due process and an opportunity for an administrative law judge to review the case, especially in the case where a revocation of a license to manufacture is the penalty.
A similar kind of graduated penalty should be applied to those whose disclosed data for the testing results do not fall within a pre-defined confidence interval of a verification test done by either a government laboratory or an independent laboratory. Where there is a consistent pattern of erroneous disclosure, more severe penalties should be applied.
Legislation should prohibit the sale of tobacco to minors. However, for this to be effective, close to 100% compliance is required. Enforcement is key, including, interalia, the importance of meaningful penalties, proof of age, licensing of retailers, prohibition of self service displays, and prohibition against display of visible products, without which such a provision would be ineffective (11).
To combat illicit trade, counterfeit and smuggled tobacco products, comprehensive legislation should include measures such as requirements for package markings or creation of a regime for tracking and tracing products from the production through the distribution chain. The experience in Spain is an example of successful smuggling control.
Demand reduction measures concerning tobacco dependence and cessation treatment. These measures should encourage tobacco users to quit as part of a comprehensive package including education and prevention. It is important that tobacco dependence and cessation treatment should be integrated in health systems.
Other components of legislation may include creation of school-based programmes that are an integral part of comprehensive tobacco control programme and not in isolation, modification of agricultural policies or provisions on issues of legal liability. Litigation based on constitutional provisions has led to adoption of smoke-free policies in India and Uganda.
(9) Irish Report on compliance with the smoke-free law. (10) For a complete list of tobacco product characteristics that should be disclosed, see WHO Study Group on Tobacco Product Regulation (TobReg) Recommendation 1 – Guiding Principles for the Development of Tobacco Product Research and Testing Capacity and Proposed Protocols for the Initiation of Tobacco Product Testing.
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