The Framework Convention Alliance for Tobacco Control

Illicit Trade: The Work of the Conference of the Parties

The measures committed to by Parties under Article 15 will not be sufficient to eliminate illicit trade in tobacco products. An effective approach to the problem will require agreement on a comprehensive set of measures to be implemented at both the domestic and international levels, including measures dealing with control of the supply and distribution chain, measures dealing with offences, penalties and enforcement, and international cooperative measures.

At its first session (Geneva, Switzerland, 6-17 February 2006), the Conference of the Parties (COP) to the FCTC noted ‘the need to further develop the obligations set out in Article 15 in an internationally binding legal instrument', and decided to establish an expert group to prepare a template for a protocol on illicit trade in tobacco products. At its second session (Bangkok, Thailand, 30 June – 6 July 2007) , the COP decided to establish an Intergovernmental Negotiating Body (INB) to draft and negotiate a protocol on illicit trade in tobacco products which will build upon and complement the provisions of Article 15, recognizing the protocol template prepared by the expert group as a basis for initiating the negotiations. The INB held its first session ( Geneva , Switzerland , 11-16 February 2008) and will hold a second session ( Geneva , Switzerland , 20-25 October 2008) before submitting a progress report to the upcoming third session of the COP.

The Expert Group on Illicit Trade in Tobacco Products

The expert group on illicit trade in tobacco products was established by the first session of the COP to elaborate a template for a protocol, to be presented to the second session of the COP. The expert group comprised experts in public health, finance/taxation, law enforcement/justice and customs (excise)/trade from all six World Health Organization (WHO) regions. Civil society experts nominated by FCA and a representative of the World Customs Organization (WCO) participated as observers. The expert group met twice in the period between the first and second sessions of the COP ( Geneva, Switzerland, 25-27 September 2006 and Cairo, Egypt, 3-5 December 2006 ), and submitted its report and protocol template to the second session of the COP.

The expert group's template proposed a comprehensive set of measures for inclusion in a protocol on illicit trade in tobacco products. Key measures proposed included:

  • tracking and tracing tobacco products to enable the identification of illicit products and assist in determination of the point of diversion from the legal market to the illicit market;
  • obligations on manufacturers of tobacco products to control the supply chain for their products, with penalties for those that fail to do so;
  • licensing and other arrangements to monitor and control the behaviour of participants within the tobacco supply and distribution chains ; and
  • enhanced law enforcement and international cooperative measures , including information sharing, cooperation in respect of investigation and prosecution of offences, and mutual legal assistance and extradition arrangements .

The Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products

The Intergovernmental Negotiating Body (INB) on a Protocol on Illicit Trade in Tobacco Products was established by the second session of the COP to draft and negotiate a protocol on illicit trade. According to the Rules of Procedure of the COP, all Parties to the FCTC may participate in the negotiations of the INB, with non-Party States and accredited intergovernmental and nongovernmental organizations invited to participate as observers.

The decision establishing the INB recognized the expert group's template as a basis for initiating the negotiations by the INB, and stated that the protocol will build upon and complement the provisions of Article 15. The decision requested the INB to take into account existing agreements and arrangements relevant to its objective in order to maximise synergy and complementarity, and to avoid duplication. Towards this end, the Convention Secretariat prepared a report on relevant existing agreements and arrangements for the first session of the INB.

The first session of the INB elected officers from among the Parties participating . The chairperson, Mr Ian Walton-George of the EC, recorded his personal notes of the overall content of the discussions, and will, with the support of the Convention Secretariat and relevant experts, draft a chairperson's text for submission to the second session of the INB (to be held in Geneva, Switzerland, on 20-25 October 2008). The INB will proceed with its work on the basis of the chairperson's text, and will report to the upcoming third session of the COP on the progress of its work. The INB will be expected to hold at least one further session between the third and fourth sessions of the COP, and (unless otherwise decided by the COP at its third session) to submit the text of a draft protocol to the fourth session of the COP (to be held in 2010 unless otherwise decided by the COP at its third session). If adopted by the COP, a protocol on illicit trade in tobacco products will be opened for signature and ratification by all Parties to the FCTC.

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