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4/7 Scheduling - What about tobacco?

  • Benjamin-Alexandre Jeanroy
  • Apr 30, 2016
  • 5 min read

Tobacco is both a formidable and a terrible example advocating for the regulation of a potentially harmful substance. Past related experiences can show us the possibility of pluri-national autonomous regulation frameworks, under the umbrella of a specific international legal system. But it is also an example that can be used by prohibition advocates by highlighting health-related harms caused by the devastating “tobacco epidemic” (WHO, 2015a) which has killed “around 6 million people each year." Within it, "more than 5 million of those deaths are the result of direct tobacco use while more than 600 000 are the result of non-smokers being exposed to second-hand smoke.” (WHO, 2015) However, it is important to acknowledge that the harms caused by the substance are not equally shared as “nearly 80% of the world's 1 billion smokers live in low- and middle-income countries.” (WHO, 2015)

By eliminating tobacco from its scope, drafters of the U.N. drug control conventions have highlighted "the arbitrary moral distinctions they propagate.” (Count the Costs, 2010) Today, the substance, while being arguably associated with levels of addiction and harms that greatly eclipse the ones associated with other illicit drugs, is today subject to its own U.N. convention, the WHO Framework Convention On Tobacco Control (also called WHO FCTC) (WHO, 2015a).

With a comparable number of U.N. member states signatories to the other three drug control U.N. Conventions, the treaty is far from containing the same stigmatizing framing language, “and by contrast to the 1961 Single Convention, outlines a series of legal, market control measures – not punitive prohibitions – for the non-medical use of a high risk drug.” (Count the Costs, 2010) Observers often argue that the Tobacco Convention represents a major a step in the right direction in regard to the potentially deliberate omission of the substance in the previous international drug control scheduling system. However, for others, the clear, artificial, moral distinction between licit and illicit drugs, is still in itself a form of discrimination against the different respective users, as well as an example of the influence of powerful cultural and economic interests within which the tobacco market has operated for decades.

The road towards the regulation of tobacco has only been walked very recently. It was only in 2005 that several governments and NGOs around the globe worked towards the establishment of an international treaty on tobacco regulation. The WHO FCTC, is - according to the agency website - both “an evidence-based treaty that reaffirms the right of all people to the highest standard of health” and “the first global public health treaty.” (WHO, 2015) The Convention, ratified by 180 nations - “making it one of the most ratified international treaties in the world” (Global Initiative, 2014) - was resented as the response from the international community in the face of the harms caused by the tobacco industry, with the intention to tackle “complex factors with cross - border effects, such as trade liberalization and direct foreign investment, tobacco advertising, promotion and sponsorship beyond national borders, and illicit trade in tobacco products.” (WHO, 2015) It has generally been considered as widely successful, due to its binding obligations on parties, but although criticized for severely lacking national implementations mechanisms.

Article 5 and 6 of the Treaty, are particularly interesting if we want to be able to compare the tobacco international control framework with the way other drugs are handled. Article 5 requires parties “to establish essential infrastructure for tobacco control, including a national coordinating mechanism, and to develop and implement comprehensive, multisectoral tobacco-control strategies, plans and legislation to prevent and reduce tobacco use, nicotine addiction and exposure to tobacco smoke.” (WHO, 2015) Article 6 “encourages price and tax measures as effective means to reduce the demand for tobacco.” (WHO, 2015) These provisions, can only resonates to ears of drug policy reform advocates as it shows that alternative policies to prohibition are possible. We will argue in further articles that other drugs could be controlled through similar mechanisms, allowing at the same time a space for an integrated, inclusive and context based global approach on all drugs.

The case of taxing a potentially harmful substance is an interesting one, notably to prove wrong the debunked myth that regulating currently illicit drugs would automatically eradicate black markets. According to the WHO, illegal trade of industrial cigarettes - the most commonly consumed form of tobacco -, “undermines price and tax measures for tobacco control; thereby increases the accessibility and affordability of tobacco products.” (FCTC, 2005) This market notably exists because “smuggled tobacco is much cheaper than legitimate and taxed tobacco, which boosts consumption amongst price sensitive groups: typically those in the developing world.” (Global Initiative, 2014) Consequently, the diversion of capital into the illegal trade further decrease tax revenues for service provisions, including harm reduction programs.

9 to 10% of the global market for tobacco remains illegal (FCTC, 2005a). Yet, in some Asian countries such as China and Thailand, over 50% of the market belong to criminal organizations (ITIC, 2013). We could argue here that this long term trend could keep on, as taxes are imposed and increased, the “profitability of selling illegal cigarettes, and consumer incentive to buy untaxed tobacco, grows.” (Global Initiative, 2014) This regulatory dilemma, implies concerns for any product for which a demand could potentially always exist, notably to find the right balance between taxes, overall prices and health-oriented initiatives. This is crucial as we are currently observing local and nationals regulation experimentations all around the world (1) which struggle with or have made provisions in regard to this predicament.

Additionally, while tobacco has shown an alternative way to regulate a drug, understanding through scientifically evaluated based indexes the potential harms of using of such substance remains primordial if we ought to correctly protect public health. Arguably the current IDCR scheduling system do not meet this requirement. This will be the topic of the next article.

(1) Notably for cannabis market regulation in Uruguay and a growing number of U.S States, which we will discuss in later articles; as-well as for Canada and Jamaica which were discussed in an earlier article on UNGASS actors.


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