Research paper, Draft (final version to be expected in May)
Fighting for tobacco control legislation in Ukraine – five draft tobacco
control laws in one year
Konstantin Krasovsky
IPF Policy Fellow
Introduction
In the former USSR various aspects of tobacco control legislation (like health
warnings, restrictions of smoking in some public places, tar and nicotine
levels, etc) were covered by several regulations. The main question of tobacco
control legislation development in Ukraine was about which way is better:
1) to improve existing laws (like the Law on advertising) and regulations
or 2) to prepare special tobacco control law. The first way seemed more feasible
and needed less resources, however tobacco control advocates were mainly
in reactive position: they mainly react on proposition of tobacco industry
and other policy makers instead of proposing new laws or regulations. However,
to push the tobacco control legislation, some of governmental officials or
members of the parliament have to take responsibility to be official authors
of the proposals. Unfortunately, until 2000 there was no such a person, even
in the public health field. For example, Mr. Sergey Shevchuk, who was head
of the Parliament Health Protection Committee in 1998-2000, at the meeting
in Kiev in early 1999, after attending UNICEF sponsored conference on tobacco
control in New York, said that he prefers to improve existing legislation,
but not to introduce special tobacco control law.
The attempts to introduce some tobacco control provisions were carefully
monitored by tobacco industry. Tobacco industry documents, available online,
revealed some examples of this monitoring:
2074651995
Weekly Highlights, January 13, 1997
On January 11, the Cabinet of Ministers passed a new Decree on product packaging
and labeling. The new Decree is a significant improvement on previous similar
Decrees issued over the last few months. In general it is in line with the
industry’s proposal. The Decree stipulates that the health warning and all
non-registered text should be in Ukrainian, effective immediately. A letter
was sent to the authorities requesting them to grant the industry a 5-month
period to use up all the material that have already been ordered and that
do not comply with the new requirements.
2074651770
Weekly Highlights March 30 1998
A draft anti-tobacco Decree being circulated by the Ministry of Health to
its departments and selected departments within the Cabinet has been made
public. The draft contains relatively extreme requirements for labeling of
cigarette products similar to those favoured by international anti-tobacco
activists. Cabinet representatives agree that the draft proposed do not comply
with existing legislation concerning product labeling, that local industry
would find difficult and costly to implement the proposals, and that other
state organizations should participate in any debate concerning the draft
proposals, including the state standards bodies and the tobacco industry.
No concrete action is expected on the draft Decree in the nearest future.
2078649432
Weekly Highlights, February 22, 1999
Area has received copies of two draft legislation proposals put forward by
the Health Care Committee of the Ukrainian Parliament entitled “On introduction
of special medical duty on cigarettes” and “On a total ban of tobacco and
alcohol advertising and sponsorship”. The first draft proposal should be
effectively distributed to the Parliament in April and be discussed in the
end of June. The latter should be revised in June and presented to Parliament
in September.
So in 1997-1999 any attempts to introduce some separate tobacco control measures,
like health warnings or ban of tobacco advertising, were either “in line
with the industry’s proposal” or effectively blocked by the industry and
its allies. Special tobacco control law was needed to unblock the situation.
The governmental draft law of 2000
In 1999 Dr. Olga Bobyleva was appointed first deputy minister of Health.
One of her responsibilities was to be a deputy head of the Tobacco Control
Board of the Government of Ukraine. In early 2000 she proposed to prepare
a special tobacco control law and promised to push it through government
to introduce it to the parliament as a government proposition. The first
draft of the law was written by Dr. Konstantin Krasovsky. He used the Polish
law on tobacco control and health protection as a model.
Main features of the draft were:
1. Smoking ban in health, educational, culture and sport
settings, public transport, state premises;
2. Ban of most kinds of tobacco advertising and sponsorship
(except advertising in special tobacco shops and special tobacco professional
publications);
3. Eight rotating health warnings covering 25% of two largest
sides of the pack;
4. Disclosure of ingredients and additives of tobacco products.
5. Ministry of health has the right to regulate upper limits
of any harmful substance in tobacco products (not just tar and nicotine).
6. Introduction of State Program of tobacco use prevention,
which should be financed by 1% of all tobacco excise tax revenues, allocated
from the state budget.
After some corrections made by the Ministry of Health workers, the next version
of the Law on Tobacco Control and Health Protection was presented at the
session of the Governmental Tobacco Control Board (GTCB) on May 29, 2000
and was supported by members of the Board. Then the draft law was officially
introduced to the government. According to the procedure all ministries can
propose their amendments, and other propositions to the draft law. Most of
the ministries supported the draft law with some suggestions and only the
Ministry of Agriculture strongly opposed it. The position of this ministry
was actually dictated by the Ukrainian Tobacco Association (“Ukrtutun”).
This Association was under control of transnational tobacco industry and
Philip Morris, JTI, BAT and Reemtsma were members of the Ukrtutun.
Main arguments of the of the Ministry of Agriculture were the following:
1. Allocation of tobacco excise revenue for tobacco control
is against the national tax legislation.
2. Many provisions (like smoking ban in some public places)
are already regulated by existing legislation.
3. Disclosure of tobacco ingredients and health warnings
violates property rights.
4. Ban of tobacco advertising is ineffective.
They did not support the draft in general, especially advertising ban and
health warnings.
Rest of the ministries supported the law. Ministry of Labour and Social Policy,
Ministry of Education, Ministry of Finance, Ministry of Defense, Youth and
Sport Committee and several regional health authorities presented some proposals,
which were used for the final draft.
This final draft not only saved all the above-mentioned features, but it
was even stronger (for example, the required size of health warnings was
increased to 30%). In March 2001 the draft law was almost ready to be introduced
to the parliament on behalf of the government.
The parliament draft law
However, in March 2001 four members of the parliament (Mr. Sergey Shevchuk,
Mr. Vitaliy Chernenko, Mr. Boris Khazan, Mrs. Liliya Grigorovich) presented
the draft Law on Tobacco Use Restrictions. According to the procedure the
government has to issue official judgment on every draft law officially registered
in the parliament. The presented draft law looked like public health law
and even for the Ministry of Health it was difficult to justify negative
attitude to the MPs draft law. As the government expressed its support to
this draft law it was not able to present its own Tobacco Control and Health
Protection Law as an alternative. The MPs draft law was not well edited,
which made obvious that it was made in a hurry without any discussions. Nevertheless,
while other legislative proposals in the Ukrainian parliament are usually
postponed even for years to be discussed, this draft law was considered for
the first reading just in four months after its introduction.
In June 2001 the Law on Tobacco Use Restrictions was adopted by the parliament
at first reading without any opposition. It revealed that MPs supported tobacco
control in general, but did not have clear opinion on provisions of such
law. The adopted draft law was rather weak, however all tobacco factories
(except Philip Morris) attacked it stating that it serves interests of only
one tobacco company. For example, it had severe tar and nicotine limits,
which small factories could not meet, while these limits have no value for
public health. Another provision, which Philip Morris was going to use for
competition purposes, was about number of cigarettes in a pack. The draft
law stated that only packs of 20 should be allowed. Philip Morris produces
only such packs in Ukraine, while some competitors produce packs of 18 and
25 cigarettes. Such features are not a surprise, taking into account that
the draft law key author Mr. Sergey Shevchuk has long record of contacts
with Philip Morris.
The NGO Coalition for Tobacco Free Ukraine issued a special statement on
the draft law. While supporting the idea of such law and some of its provisions,
the Coalition stated that the draft law is not acceptable for the following
main reasons:
1) One of the law objectives was “to ensure safety of tobacco
products”. The Coalition proposed to change it for “to ensure reduction of
tobacco products toxicity”, because there is no such thing as a safe cigarette.
2) Provisions of the smoking restrictions article mainly
defended smokers. Smoking can be banned only in those governmental buildings,
which have special smoking rooms. Owners of buildings and transport vehicles
“are obliged to design special places for smoking”, even if there is no need
for such rooms. All transport vehicles get the right to have smoking places,
while in reality there were no such places, except international flights
(smoking was banned by the Ukraine International Airlines only in November,
2001). So health protection of non-smokers was to become worse with this
law, than before.
3) The draft law banned disclosure of information on tobacco
products ingredients.
4) Health warnings provisions were based on the EU Directive
37/2001, while some important points were missing: (a) there was no ban of
misleading terms, like ‘light’ cigarettes; (b) warnings should be printed
“on a contrasting background”, while the EU experience revealed it does not
work; (c) warnings should include tar and nicotine levels, while methods
of such levels testing are misleading; (d) all packs of tobacco products
must contain message “Smoking to minors is prohibited”, which is actually
a provocation of smoking among young people.
5) The draft law has no provisions on tobacco advertising
and on tobacco control activities funding.
The differences of the governmental and the parliament draft laws (as well
as two other draft laws) are summarized in Table
1.
The Coalition for Tobacco Free Ukraine published the above-mentioned statement
on its web site and soon one of the co-authors of the MPs draft law, Mr.
Boris Khazan called to the Coalition and said that he wants to meet and discuss
the statement.
It occurs that he really did not participate in writing the draft law and
was included to the authors list to ensure support of his Greens Party. Mr.
Khazan later supported all Coalition proposals and submitted these proposals
for changing the draft law for the second reading in the parliament on his
behalf.
Meeting with another co-author of the Law Mrs. Liliya Grigorovich revealed
that she also did not participate in writing the law and was included to
the authors list to ensure support of her People Movement Party. She took
compromise position.
However two other authors of the draft law had rather strong positions and
were rather pro-tobacco. Mr. Chernenko was a chairman of the Public Health
parliament committee at that time and had a strong influence on the process
of the law preparation for the second reading. He agreed to invite into the
working group, which prepared the law for the second reading, representatives
of tobacco industry. Mr. Shevchuk later was appointed a state secretary of
the Ministry of Health and, while leaving the parliament, could present his
personal position as the ministerial (and actually the governmental) position.
To influence the process of draft law discussion The Coalition for Tobacco
Free Ukraine persuaded another MP Mr. Orest Melnikov (formerly the Greens
Party, then independent) to support public health position. He submitted
alternative draft law called “On counteraction to tobacco epidemic”, which
had very strong provisions (see Table 1).
This draft law was actually written by the Coalition member Mrs. Anna Dovbakh.
Working group
The working group, which prepared the law for the second reading, did not
have clear status. The discussions took long time, but decisions were compromised
and sometimes changed by the Public Health parliament committee clerk ignoring
the results of the discussions.
Public health position in the working were supported by Dr. Konstantin Krasovsky,
Mrs. Galina Rud, executive secretary of the Governmental Tobacco Control
Board, Mrs. Anna Dovbakh, who worked as an adviser of MP Melnikov, and partly
by the representatives of the Ministry of Health Mrs. Alla Grigorenko and
Mrs. Irina Semerun.
Tobacco industry position was clearly supported by Mr. Andrey Kril, lawyer
of the Ukrainian Tobacco Association. Hidden support was provided by Mr.
Igor Derkach, former MP and then adviser of MP, Mr. Pavlo Movchan, who was
well known for his letters supporting tobacco industry positions. Strong
influence of Vitaliy Chernenko and Sergey Shevchuk (who were current and
former heads of the Health Protection Committee respectively) via the clerk
of the committee Mrs. Raisa Krutikova, who acted as a working group secretary,
forced public health advocates to agree for some compromises. It was a dilemma:
what is better – a weak law with high chances to be adopted or a strong law
with low chances to be adopted. Working group reached the following compromises:
- ban of misleading terms on the cigarette packs, however
only those which are included into international agreements, supported by
Ukraine.
- health warning should cover 25% of front and back sides
of the pack and rotate every second month, which means 6 warnings in a year.
Printing provisions were weak (contrasting background, etc.).
- smoking is banned in public urban and sub-urban transport,
air transport (including international one), in health, educational and culture
settings, in closed premises when sport or other mass events are conducted
there; in other closed premises, except places designated by owners; in other
places designated by community authorities. Owners of transport vehicles,
buildings and premises have to designate special smoking places with information
on dangers of smoking.
Final draft law for the second reading
On November 13, 2001 the draft law was discussed at a formal meeting of the
Health Protection Committee members, who should take decisions on provisions
of the final draft law for the second reading. Unfortunately those MPs, who
supported strong tobacco control measures (Boris Khazan and Orest Melnikov)
were not members of the Committee and even could not attend the meeting due
to personal reasons. Among the Committee members only Mr. Anatoliy Novik
supported strong tobacco control provisions, the rest had no clear opinion
and were ready to support positions, presented by the chairman of the Committee
Mr. Chernenko. Several representatives of tobacco control NGOs and representatives
of tobacco industry also were invited to attend the meeting.
Mr. Shevchuk attended the meeting as a representative of the Ministry of
Health. He worked very hard to make law as weak as possible. He pushed the
following points:
- ban of terms like ‘light cigarettes’ could be approved only if Ukraine
has international obligations to do so;
- only tar and nicotine measured by ISO method should be printed on packs
(and no other substances);
- he proposed that the Ministry of Health prepared more than 6 health
warnings, but a manufacturer can choose only one of them. It means that there
will be only one warning and the weakest one;
- tobacco advertising should be regulated not by this law but by the
Law on advertising which (for the day of the meeting) banned only direct
TV and radio advertising.
Unfortunately all Mr. Shevchuk’s proposals were accepted, while most propositions
of public health proponents were ignored.
The draft Law on Tobacco Use Restrictions, which was introduced to the parliament
for the second reading was very weak: tobacco advertising issues were not
included, smoking restrictions would be hard to enforce, there should 6 health
warning, but tobacco industry could chose only one.
While the tobacco control law was deeply needed it was a feeling that the
bottom line of public health interests was crossed and the law can do more
harm than good. It had so many compromises that the Coalition for Tobacco
Free Ukraine decided not to support this law. On December 12, NGO Coalition
for Tobacco Free Ukraine in its press-release called this law "an imitation
of tobacco control legislation" and urged members of the parliament not to
support this law as a bad law is worse than no law.
On December 13, 2001 Mr. Chernenko proposed to vote the draft law without
any discussion for the second and right away for the third, final reading.
Only 109 members of the parliament voted for this law, while 226 were needed
for the law to be adopted. Legally the draft law was killed. Some MPs did
not support the draft law for public health reasons, while many of them voted
against the law because it had provisions, beneficial for the Philip Morris,
but unfavorable for small local tobacco factories (like strong tar and nicotine
limits).
So Mr. Shevchuk and Mr. Chernenko could not implement the Philip Morris desire
to have the law, which just imitate tobacco control, while helping to compete
other tobacco factories. However, the main task of tobacco industry was successfully
fulfilled: a strong governmental tobacco control law was not even introduced.
Ukraine did not get tobacco control legislation. Moreover tobacco industry
managed to introduce provisions, which looked like tobacco control law into
the legislative act, which was under its strong influence.
Law on regulation of alcohol and tobacco products
Since 1995 technological and some other aspects of tobacco production in
Ukraine are regulated by the Law “On State Regulation of Production and Trade
in Ethyl Alcohol, Cognac and Fruit Spirits, Alcoholic Drinks and Tobacco
Products”. In 2001 it was decided to amend this law by provisions, which
look like tobacco control ones. These amendments were to be considered by
the Finance Committee of the Parliament, where tobacco industry had strong
influence. It is enough to say that member of this Committee and key author
of the amendments, MP Mr. Vyacheslav Sokerchak was not re-elected in 2002
and later became president of the Union of tobacco and alcohol producers
and wholesalers (SOVAT).
The main aim of the amendments was to block governmental attempts to control
tobacco from public health perspective by including to the Law on regulation
of alcohol and tobacco products very weak provisions to claim that issues
which should be covered by tobacco control law are already covered by the
national legislation. In 2003 the main argument of the Ministry of Agriculture
against the new draft tobacco control law was that such law is not needed,
as its provisions are already present in current legislation.
The main provisions of the amendments were the following:
· Information on tar and nicotine content in smoke
of one cigarette, placed on one of the side surfaces of a pack should take
at least 10 per cent of the total surface. The text of the following contents:
“the Ministry of Health Protection of Ukraine warns: smoking is your health
hazard”, placed on the front and the back side of the pack should take at
least 10 per cent of each of these surfaces. These provisions shall take
legal effect in 18 months upon entering this Law into force.
· Except for specially designed places, consumption
of alcoholic drinks (!) and tobacco products is prohibited: in health protection
institutions; in educational and pedagogical institutions; in public transport
(including international communication transport); in cultural institutions;
in enclosed sports buildings; in elevators and coin telephones; at children’s
playgrounds; in buildings of the bodies of state power, local government
bodies and other state institutions.
· Sale of alcoholic drinks and tobacco products
is prohibited: by persons under the age of 18;
· to persons under the age of 18; in buildings and
on the territory of pre-school, educational institutions and health protection
institutions; in buildings of specialized trade organizations, which perform
trade in children’s or sports products; at sport competition venues; in other
places, specified by local government bodies; from vending machines; from
self-service shelves (except for tobacco products in blocks and alcoholic
drinks);.apiece (for tobacco products, except cigars).
· All other laws and normative and legal acts, related
to production and turnover of alcohol …and tobacco products shall be valid
to the extent that does not contradict this Law.
Besides this the draft law stipulated that the content of tobacco products
should not be disclosed even for the government. The draft law also established
rather high tar and nicotine levels. These two provisions were eventually
deleted from the final law (see below).
The provisions, which looked like "health protection" such as small health
warning with archaic message "Ministry of Health warns: smoking is harmful
for your health" did not present any danger for tobacco industry. This law
also states that it has priority over other legislative acts to defend the
industry from public health tobacco control law, which could be adopted in
future.
However so crude attempt of the tobacco industry to dictate its own rules
to authorities had got some resistance, while not very strong. The chronology
was the following:
· On July 5, 2001 the Ukrainian parliament adopted
amendments to the Law on regulation of alcohol and tobacco products. NGO
Coalition for Tobacco Free Ukraine and the Ministry of Health applied to
the President of Ukraine asking him to veto this law. The Coalition claimed
that all provisions, which look like “health protection” should be deleted,
while the Ministry cared more about its power to regulate content of tobacco
products.
· On August 1 the President has vetoed this law
and return it to the parliament for changes. The objections in the area of
public health issues were the following:
1) this law should not establish tar and nicotine levels in cigarettes, as
they need to be regulated by the Ministry of Health;
2) content of tobacco products should be presented to the government and
approved by appropriate governmental body.
· On September 13, the amendments of the law on
regulation of alcohol and tobacco products were adopted by the parliament
ignoring the President proposals. NGO Coalition for Tobacco-free Ukraine
and one fraction of the parliament applied to the President of Ukraine asking
him to veto this law for the second time. At the press conference of September
25, the President said that he has rather strong position and will not sign
the law. Next day tobacco industry conducted special press conference to
defend the law and to persuade the President not to veto it for the second
time. However the President of Ukraine did veto for the second time. NGO
Coalition for Tobacco Free Ukraine welcomed this decision.
· Later that year the parliament again supported
the previous version of the law and again (on December 25, 2001) the President
of Ukraine vetoed it.
· Only in March 2002 the parliament agreed to accept
the president’s proposals and the amendments were signed and entered into
force.
Law on environment protection against tobacco smoke
The failure to introduce comprehensive tobacco control law through the government
and the Health Protection Committee made The Coalition for Tobacco Free Ukraine
to look for unusual ways to introduce the tobacco control law. MP Boris Khazan
was rather cooperative, while he was not a member of the Health Protection
Committee and his influence was limited. He was a member of the Environment
Protection Committee and a member of the Green Party. So it was decided to
develop the tobacco control law, which looked like environment protection
law.
The draft law was written by Dr. Konstantin Krasovsky, while the official
author was MP Boris Khazan.
To be considered by the Environment Protection Committee this draft law was
presented as development of provisions of the “Atmosphere Air Protection
Law”.
While containing all main provisions of the comprehensive tobacco control
law, this draft law presented them in a specific way.
Terms. The main term was “environmental tobacco smoke”. Some tobacco control
advocates do not like this term treating it as a tobacco industry term, however
in the context of this law it became very useful. Other terms were: “air
pollution by tobacco smoke”, which was defined as “any actions, which cause
to release of environmental tobacco smoke into the air and can have negative
impact of human health and environment”; “people, especially vulnerable to
tobacco smoke”, were defined as “people with chronic diseases, the symptoms
of which can become more severe, when they have to inhale environmental tobacco
smoke”. Health warning were re-defined as “environmental health warning”.
For tobacco advertising and sponsorship we used term “encouragement of environment
pollution by tobacco smoke and wastes of tobacco products use”, which was
defined as “any commercial information which is distributed in any form and
by any means to promote purchase and use of tobacco products and cause formation
of tobacco smoke and tobacco wastes”. Respective definitions of indirect
advertising and sponsorship were also present.
The law did not restrict “smoking”. It banned or restricted “air pollution
by tobacco smoke”. To protect children and other vulnerable persons such
pollution was banned:
1) In all child care establishments and other places designed
mainly for use of persons below 18 (like children playgrounds);
2) In health facilities, which “people, especially vulnerable
to tobacco smoke”, can attend.
3) In other places, where public events are conducted with
attendance of children or “people, especially vulnerable to tobacco smoke”.
It was also proposed to ban “air pollution by tobacco smoke” in the following
public places:
1) urban and sub-urban transport vehicles;
2) air, railway transport and in enclosed premises of river
and sea transport;
3) subways and waiting places of public transport;
4) trade premises;
5) sport and entertainment premises;
6) other places, identified by local communities.
As to working places the draft law proposed to ban air pollution by tobacco
smoke in all enclosed work premises and nearer than 5 meters to the entrance
to the enclosed work premises. Employers were to get the right to establish
special premises with separate ventilation, where it was allowed to pollute
air by tobacco smoke, provided that these premises were not used for other
purposes. This places were to be marked as “It is allowed to pollute air
by tobacco smoke in this place” and within this place posters and other information
on danger of smoking should be placed.
As to restaurants and other establishments serving food and refreshments
the following restrictions were proposed:
1) air pollution by tobacco smoke is banned in all establishments
which allow to enter persons below 7 years old;
2) in all establishments which has more than 30 seating
places at least 50% of area should be reserved for smoke-free area.
All establishments, where air pollution by tobacco smoke is permitted should
have special announcement about it (and also about availability or non-availability
of smoke free area) at the entrance, as well as posters and other information
on danger of smoking inside.
Information on most common and most dangerous polluting substances of tobacco
emission should be presented to respective governmental body by every manufacturer
and on every brand and every tobacco product. The list of such substances
included: Polonium-210 and other radioactive substances; Nitrate; solid particles;
Benzo[a]pyrene; Lead, Ammonia, Formaldehyde, Hydrogen cyanide, Cadmium and
other substances on request of respective governmental body. Methods of collection
of emission data included both ISO method and so called “realistic method”
identical to method established in Canada. Such information should not be
closed.
Health warnings were called “environment health warnings” and were to cover
40% of front and back large sides of the pack. Text of 8 warnings should
be identified by respective governmental bodies and rotated at least once
in 3 years. Each pack should also include inserts with information on the
most common and most dangerous polluting substances of tobacco emission on
one side and health warning on the other side. Any other inserts to the tobacco
packs are prohibited.
There was ban of terms like “light cigarettes”, which make false impression
that air pollution by this brand is less dangerous than pollution by other
brands.
Ingredients. It was proposed to prohibit use of any ingredients, which:
1) increase radioactivity of tobacco emissions;
2) make inhaling of tobacco smoke easier;
3) facilitate tobacco addiction development.
To use any ingredients the manufacturer should prove that inhalation of combustion
products of this ingredient is safe for health.
All kinds of “Encouragement of environment pollution by tobacco smoke and
wastes of tobacco products use” including indirect one and sponsorship were
banned in the draft law. There was a detailed description of activities,
which are treated as indirect “Encouragement” presented in the draft law.
The draft law was officially submitted by Mr. Khazan in December, 2001. Unfortunately,
it was registered to be considered not by the Environmental Committee, but
by the Health Committee. The Ministry of Environment (despite the fact that
the Minister was a member of the Green Party) expressed negative attitude
to the draft law. At the next election (in March 2002) the Green Party and
Mr. Khazan failed to be re-elected and there was nobody in the parliament
to present this draft law. Unfortunately it disappeared from the parliament
consideration.
However, the experience of writing tobacco control law not as a public health
law, but as environment protection law can be used in future attempts to
push tobacco control legislation in those countries, which have strong environment
movement at least to involve representatives of this movement into tobacco
control efforts.
Discussion: problems and recommendations
The experience of lobbying tobacco control legislation in 2001 was rather
pessimistic. There were five draft laws, but eventually the worst one was
adopted. Tobacco industry managed to push legislation, which protects its
vested interests, while looks like protecting public health. It also has
got some protection against effective public health legislation as it can
claim that most issues are already covered by existing legislation.
The experience of lobbying activities in 2001 highlighted the following problems
of tobacco control legislation process.
Weak law or no law?
While tobacco control advocates are able to present draft law based on the
best international experience, the final version, which is presented to a
parliament for voting, can be much weaker than the very first draft. The
reasons of weakening draft law are different: 1) tobacco industry lobbying
(if tobacco industry representatives are accepted as partners in working
out the final draft law it will be inevitably weakened); 2) desire of official
law makers to have a draft law, which has high chances to be adopted (so
they are ready to delete some strong provisions if their colleagues threaten
that otherwise the law will fail); 3) poor knowledge of recent trends of
effective tobacco control legislation by MPs and their staff (so they can
easily delete strong provisions, like ban of misleading terms like “light”
cigarette, but insist on severe tar and nicotine limits, believing that when
improving “quality” of cigarettes, they protect public health).
Finally the draft law becomes so weak that tobacco control advocates have
to ask themselves if it is worth to support such a law. This was the situation
in Ukraine in 2001. While such decision can never be easy and needs to take
into account all the realities of the country it would be good to make a
balance of provisions.
There are three main kinds of provisions.
1. Some provisions could really make situation worse than
before (for example, obligatory smoking rooms in all buildings or obligatory
messages on tobacco packs “Not for sale to minors”).
2. The others have no value for public health (like strong
tar and nicotine limits) or very limited value (ban of vending machines in
a country where they do not exist). 3. However, strong
provisions could also exist. If there is at least one strong provision, which
has high chances for implementation and can increase public awareness of
tobacco related harm (like increase of health warning size to 30% or ban
of outdoor advertising), such draft law could be worth supporting.
It is difficult to compare weight of different provisions and every country
can have its own priorities. The final score will be defined not by calculations,
but by intuition. In case there are some strong provisions saved and the
general balance is positive it is necessary to claim which provisions you
do support and which strong provisions are missed and need to be amended
later.
But if the balance is almost zero (to say nothing about negative balance)
it is better not to give decision makers an illusion that they care for public
health and not to support the law which can not decrease smoking level. May
be it is better to wait for new elections and look for more ambitious and
committed politicians.
Compromises – bottom-line or extremism?
As the compromises in tobacco control legislative process are inevitable
it is better to be prepared. There are two general approaches to compromises:
1) “bottom-line” – to define from the beginning the lowest point of compromise
and refuse to support draft law if it is below this point; 2) “extremism”
– to present very strong provisions, which are not reasonable for the current
situation or cannot be properly enforced, and to sacrifice them for compromise.
The intention to define very clearly which provisions need to be included
into the draft law to be supported by tobacco control advocates seems rather
reasonable. However there are few problems. Tobacco control law usually has
several provisions and we wish to have all of them strong. It is very difficult
to decide which of them are absolutely critical and which are subject of
compromise. Tobacco control advocates usually are not strong enough to dictate
to decision makers, which can have their own priorities on provisions. If
the “bottom-line” is defined, you can be easily pressed to give up those
provisions, you were ready to give up. From the other side, if tobacco control
advocates bottom-line for every provision is known, tobacco industry can
find weakest chain in their position and concentrate its lobbying efforts
to make the draft law to cross the bottom-line in this very point. In such
situation tobacco control advocates have two bad choices: 1) do not support
draft law any more, even if it has some strong provisions; 2) to reconsider
bottom-line, which means that they do not have clear position and can give
up other provisions as well. So it is better to be creative and fight
for every strong provision and not to give up if at least one of them is
saved.
Good compromise requires that both sides give up some of their demands. In
such situation the intention to include into your draft law some extreme
provisions (like very short or no time lag for enforcement of such provisions
as health warnings or advertising ban), to give them up later in exchange
for acceptance of your other provisions by the other side.
Compromise – with decision makers or with tobacco industry?
However sides are not just health advocates and tobacco industry, more often
a decision maker is a side, which discusses compromises with advocates and
industry separately. As a decision maker has legislative power he or she
is not obliged to make any compromises. So your argumentation and image are
more important than willingness to compromise. It is better to prepare best
provisions for tobacco control law, which seems to you most relevant at present
for this very country and support them without any willingness to compromise.
Decision maker can eventually compromise some of your provisions, but you
can hardly suggest which ones. If you present at least one extreme provision
your opponents will use it as example to make you image of “extremist” and
to persuade decision makers to ignore all your provisions.
Instead of proposing some of your provisions for sale it is better to make
provisions of your opponents unacceptable. Tobacco control advocates should
anticipate arguments of opponents and prepare their counter-arguments well
in advance to arm decision makers before his or her meeting with your opponents.
Efforts to worsen their image to make decision maker not to accept any compromise
with tobacco industry is also a good tactics.
Comprehensive law or provisions in other laws?
International experience shows that this question does not have easy answer.
In some countries like Finland or Poland comprehensive tobacco control law
was rather successful. In other countries like Hungary and UK strong tobacco
control provisions (advertising ban, health warnings, etc.) are special “small”
laws or included in other laws.
Comprehensive law can cover most of tobacco control issues and provide synergy
to various provisions. However opponents of every provision are united in
such case and for comprehensive law chances to be adopted are lower.
It is necessary to take into account that comprehensive law and its amendments
are usually prepared by health authorities (Ministry of Health and/or Parliament
Health Committee), while in preparation of other laws health authorities
have rather limited influence.
Ukrainian experience revealed that absence of comprehensive tobacco control
law can be used by tobacco industry to include some provisions, which look
like tobacco control into other laws. While it is possible to amend these
laws from the public health position, it is rather difficult. For example
since 1996 there were several attempts to include tobacco advertising ban
into the Advertising law in Ukraine. In all cases the Parliament Media Committee,
which presents final draft law for voting, refused to include tobacco advertising
ban into amendments. In Poland in 1999 comprehensive tobacco control law
was amended by tobacco advertising ban and it was perceived as natural development
of this law.
Contradictions on legislation within the tobacco industry: pros and cons
for tobacco control
General interest of tobacco industry is an increase of tobacco consumption,
which is totally opposite to the public health interest. It means that there
could be no consensus between public health advocates and tobacco industry
on key legislative provisions. However, when tobacco market is not controlled
by a monopoly, tobacco companies try to use legislation for competition purposes.
We have seen many examples in Ukraine when they use public health arguments
to cover their commercial interest. Draft law of Mr. Shevchuk (see above)
included provision, that number cigarettes in a pack should be neither more,
nor less then 20. While limiting lower number is quite justified by public
health arguments (small packs designed for young experimenters who often
do not have enough money to buy pack of 20), the upper limit does not have
such justification. When asked about it, Mr. Shevchuk said that bigger packs
are used for advertising, while there are no proofs that those who buy packs
of 25 smoke more. The real reason of this legislative provision was that
the Philip Morris-Ukraine (sponsor of Mr. Shevchuk foundation) produces cigarettes
only in packs of 20, while some competitors produced packs of 18 and 25.
When discussing tax policy Philip Morris and JTI argued that ad valorem tax
is worse than specific one, because it encourages consumption of cheap, allegedly
more harmful cigarettes. In reality Philip Morris and JTI prevail on the
market of expensive cigarettes, while BAT and other competitors mainly produce
cheap cigarettes and for such cigarettes ad valorem tax is more profitable.
Tobacco control advocates should be very careful, when they hear different
arguments on tobacco control legislation from different tobacco industry
companies. There is always some commercial interest behind these arguments
and it should be revealed to make decision makers aware about it. Tobacco
control advocates also have a difficult choice which side of tobacco industry
to support. In some cases both sides are wrong. For example the discussion
about pros and cons of ad valorem and specific taxes was used by tobacco
industry to hide the real problem – very low general tax rate in Ukraine.
In other cases we should be honest and not to support provisions which do
not have proper justification (like upper limit of cigarette number in a
pack). There are also some cases when we can try to use contradictions between
tobacco companies to reduce their resistance. For example some local tobacco
factories usually are not able to meet strong tar and nicotine limits and
they can persuade MP from their constituency to fight hard against tobacco
control legislation. If tobacco control advocates make these limits not so
severe (or delete them at all as they have no public health value) and present
it as a compromise, it would be possible to reduce resistance of that MP.
Position of tobacco companies on tobacco control legislation in general also
can be different. It is known that Philip Morris publicly supported idea
of FCTC, while BAT was against it. In Ukraine Philip Morris also tried to
present its own version of tobacco control legislation (see Shevchuk’s law
above). Philip Morris tries to present itself as socially responsible company,
which can be a partner to health authorities. However it never was an initiator
of legislative provisions, which could effectively reduce tobacco consumption.
When comparing two draft laws in Ukraine – Health Committee (actually Philip
Morris) and Finance Committee (other tobacco companies) the first one looks
better for public health (at least at first sight). It has bigger health
warning, more smoking restrictions, etc. However it also has counterproductive
provisions (like message “Not for sale to minors”) and competitive measures
(like strong tar and nicotine limits), which for inexperienced person look
like public health provisions. Careful analysis reveals that the public health
value of these two draft laws is so small, that it is no sense to cooperate
with some tobacco companies believing that they are more “progressive” than
others. In reality they are not more progressive, but more hypocritical.
Who is the real author of legislation: politician or advocate?
In policy world official author of some draft law usually only gives some
idea of new law, while real text is usually written by some advocates or
experts. In many cases such advocates are also authors of the law idea and
official author only gives his name and support. In such situation there
is a strong intention to prepare best draft law and then find some MP to
introduce it. The reality of legislative process is that draft text is a
very important step, but just the very first step. In Ukraine to become law
after official introduction a draft law has to pass the following stages:
1) to be considered by relevant parliament committee and
get recommended to be included to the parliament agenda for the first reading;
2) to be adopted at first reading;
3) all amendments, which every MP can present should be
considered and new draft to be prepared for the relevant Committee session
(at this stage first draft can be changed totally, for example from strong
to weak one, as it happened in Russia in 2000);
4) to be supported by the Committee which adopts final
version for the second reading;
5) to be considered at the general parliament session (at
this stage those MPs whose amendments were declined by the relevant Committee
can insist on voting their amendments);
6) if adopted at second and third (usually just technical
or editing reading) by the parliament the law has to be signed by the President;
7) if the President issue a veto the draft law returns
to the parliament and it can either overcome veto by 2/3 majority or reconsider
the draft taking into account the President’s arguments, adopt new version
by simple majority and send it for signature again;
8) if signed by the President the new law enters into force
after official publishing.
On every stage the law can be stopped and on some stages it can be changed.
To save strong law its official author needs to have strong commitment, will
and influence. A person who managed to make draft law pass all these eight
stages is a real author of the law even despite the fact that he did not
write its first version.
To find such politician it is better to contact as many MPs as possible,
for example by sending them letters. When at least one MP (or minister) shows
clear interest it is possible to discuss with him or her possibilities of
draft law introduction.
Advocates should involve this politician into process of draft law preparation
to make this person better understand the ideas behind the text, but not
just give him ready text to sign. Advocates need to organize support to the
draft law by the public and other politicians. They should praise a politician
at every success and encourage him to move process at every delay.
However it is also important for advocates not to be abused by the politician.
It is dangerous to make tobacco control connected with only one political
party (especially if it is not a governmental party), as MPs from other parties
could vote against tobacco control law just to fight this very politician.
Tobacco control cannot contradict a program of any political party and all
of them can be involved.
Conclusions
So what is a tobacco control legislation process?
It is science, because the legislation needs to be based on
the recent research of the policies effectiveness. It should be ready to
accept new results and change positions on some provisions, sometimes rather
dramatically. All arguments should have scientific background to be accepted
by decision makers and the public.
It is art, because it is not possible to conduct every research
in every country and situation in every country is rather specific to base
all kinds of policies on research results from other countries. Anyway to
prove some policy is right or wrong some country has to invent and try it.
It is sport, because effective tobacco control legislation
always has opponents – tobacco industry and its allies. Like in sports we
do not hate persons from other team, we just play to win. And while we believe
that tobacco control eventually win, the result of legislative process in
every country depends on tactics advocates use and understanding the tactics
tobacco industry uses. As in sports good players are not enough, good coach
who can think strategically and provide advices is also needed. In tobacco
control such coach can be international and collective.
It is ethics, because to win tobacco control process advocates
should believe they do all this work not just for themselves, but for health
of people they will never meet, for public health.
The experience of Ukraine and other countries shows that effective tobacco
control legislation would hardly be adopted at once. Usually many attempts
and many years are needed to reach even modest success. But all those who
are ready to learn, to create, to fight and to believe will be successful
tobacco control advocates.