‘Counterfeit’ Dropped From New WHO Protocol On Illicit Tobacco Trade

A new treaty protocol against illicit trade in tobacco products struck today at the World Health Organization saw a late-stage decision to strip out references to “counterfeit” products from the text, according to sources.

Negotiators in the Intergovernmental Negotiating Body on a Protocol on Illicit Trade in Tobacco Products not only removed all references to counterfeit, they said, but added a preambular paragraph that states:

“Considering that this Protocol does not seek to address issues concerning intellectual property rights”

“Counterfeit has an intellectual property meaning,” said Jonathan Liberman of Australia, director of the McCabe Centre for Law and Cancer, and a member of the Union for International Cancer Control, who was at the negotiation in Geneva. Removing ‘counterfeit’ “was an acknowledgement that the [protocol] should not be concerned with tobacco industry trademarks. It should be concerned with whether taxes are paid on tobacco products,” which contributes toward public health objectives.

“Protection of trademarks are of no relevance to a public health body,” Liberman told Intellectual Property Watch. Liberman published some updates during the week in the non-governmental Framework Convention Alliance Bulletin, available here.

There is one more hurdle for the new protocol, as it must be approved by the Conference of Parties, which will meet in November in Seoul, South Korea. But that may end up being a formality after these negotiations finished the job.

The latest text of the protocol will not be posted until 11 May, according to a WHO spokesperson. Documents from the outset of the 29 March to 4 April negotiation are here.

References to counterfeit included linkages to illicit manufacturing, among other things.

A reason for the deletion of references to counterfeit appears to have been related to the disagreement among WHO members over the definition of counterfeit. WHO members are working toward an agreement on a mechanism to address what they call “substandard/spurious/falsely-labelled/falsified/counterfeit medical products” (IPW, WHO, 28 January 2012). In that context, they also have agreed to remove intellectual property rights considerations.

The protocol took four years (with five sessions and numerous intersessional meetings) to negotiate and involved the participation of 135 countries, WHO said in a release. It will take effect when 40 members have ratified it.

“This is a historic moment for global tobacco-control efforts, as this is the first protocol under the WHO Framework Convention on Tobacco Control (WHO FCTC)”, said Ian Walton-George, chairman of the Intergovernmental Negotiating Body. “By agreeing to this Protocol, governments have reiterated their commitment to protect public health and tackle illicit trade in tobacco products.”

According to the WHO, the protocol sets rules for stopping illicit trade in tobacco products through control of the supply chain. It also establishes terms for unlawful conduct, and measures for enforcement and international cooperation.

“Under the Protocol,” WHO said, “the Parties propose to establish a global tracking and tracing system for tobacco products and reached agreement on other measures, such as licensing, liability, enforcement, information-sharing and mutual legal assistance. These measures are designed to counteract and eventually eliminate the illicit trade in tobacco products.”

Illicit trade makes tobacco products more accessible and affordable, which contributes to the spread of the tobacco epidemic, WHO said. It also harms national economies and government policies, it said.

The WHO Framework Convention secretariat will serve as the secretariat for the protocol. The convention was adopted by the annual World Health Assembly in May 2003 and entered into force in February 2005.