Toward a More Rounded Strategy to Eliminate Illicit Trade in Tobacco Products

Abstract

The tobacco epidemic poses one of the gravest public health threats to both developed and developing countries. The Framework Convention on Tobacco Control (FCTC), while aiming to address the issue through various regulatory measures, has created many friction points with other treaty regimes – international trade, intellectual property, and investment. In particular, the tension between the FCTC and the World Trade Organization (WTO) has received much scholar attention. However, the existing literature focuses largely on reconciling public health measures and WTO rules applicable to legal trade in tobacco products. An equally important issue has been left out – illicit trade. Illegally manufactured, distributed, and sold tobacco amounts to 650 billion cigarettes annually – over 12% of the global total. Illicit tobacco trade has exacerbated the tobacco epidemic and undermined the effectiveness of price and tax measures. The Protocol to Eliminate Illicit Trade in Tobacco Products (Protocol) was adopted under the FCTC to strengthen supply chain controls, establish legal liabilities, and facilitate international cooperation. However, issues such as supply chain complexity, surreptitious nature, and industry involvement have been overlooked in the negotiation stage. This article therefore examines such factors in depth and identifies two missing governance tools – a notification system and a whistleblower mechanism – to close the loophole, facilitate implementation, and strengthen the global regulatory strategy.