October 5, 2013

Stanton A. Glantz, PhD

Germany's effort to prevent effective anti-smuggling policies is not the first time it fought the EU on behalf of Big Tobacco

The Guardian reported on October 5, 2013, that Germany was preparing to oppose the strong "track and trace" provisions in the pending EU Tobacco Products Directive designed to make it much more difficult for the tobacco companies to smuggle cigarettes. 

The companies are pushing their own ineffective plan (called Codentify) as opposed to something that will actually crack down on smuggling.

This is not the first time that Germany has acted as Big Tobacco's agent to block EU action against tobacco.  As we described in detail in our 2002 paper "Tobacco industry strategies for influencing European Community tobacco advertising legislation" (published in Lancet), Germany worked hand-in-glove to push the tobacco companies' desired language.  We reported:

Industry documents suggest that the industry worked with Germany to introduce a weak proposal designed to replace the proposed, stronger EC advertising ban. According to industry documents, this proposal (panel 2 [in the Lancet paper]) was drafted by the tobacco industry and was intended to be submitted, without acknowledgment of its true origin, through German representatives to the EC. The proposal was produced by the Confederation of European Community Cigarette Manufacturers (CECCM), an organisation that the industry created to coordinate political efforts of all major EC tobacco manufacturers. On May 12, 1992, Ian Sargeant, Director of Corporate Affairs for Philip Morris-EEC, described CECCM’s “directive on minimum
harmonization” as “a list of restrictions that would be the minimum that each member state must apply—they could go further, all the way to a total ban . . . if they chose”.  According to John Lepere, head of CECCM, this proposed initiative was intended to be submitted to the European Commission “by a third party and that it should not be attributable to the tobacco industry”. Dr Marion Funck, a representative to CECCM from the German tobacco company Reemtsma, authored the industry proposal. According to a 1993 CECCM summary of the industry strategy against the EC advertising directive, the industry proposal was written with the intent of being submitted to the EC by Germany: “from the start of CECCM’s campaign for minimum harmonization, an initiative in  Council to be led by Germany was perceived to be of critical tactical import. Only Germany could be counted on unilaterally to propose minimum harmonization with minimum advertising restrictions”.  [emphasis added]

Ultimately this effort failed and the EU adopted strong advertising restrictions.  The tobacco companies then activated their backup plan of suing to block the regulations.  Again, Germany was the key agent that the companies used:

Contingency planning: lawsuits in Germany—The tobacco industry strategy against the advertising ban prepared for the possibility that the draft directive might be approved by the EC. In the event of EC approval of the directive, the tobacco industry planned to fight the implementation of the ban through litigation, focusing primarily on efforts involving Germany.  ...

Ultimately, the advertising directive was challenged in a European Court of Justice court case brought by the Republic of Germany. While similar cases were brought by a number of private-sector plaintiffs, including a group of British tobacco manufacturers, it was the German suit that finally succeeded in overturning the EC advertising directive in October, 2000.  [emphasis added]

Hopefully other governments in the EU will not allow Germany to get away with acting as the tobacco industry's servant again and will adopt the track and trace provisions of the EU Tobacco Product Directive as it is written.

Doing so will reverberate beyond Europe.  The tobacco companies are arguing that a menthol ban in the US would lead to massive smuggling.  Implementation of a strong track and trace protocol here (something the FDA could do if President Obama allows it to) could prevent that problem.


(Note:  I deleted the citations to the specific documents supporting these statements to improve readability; the citations are all in the published version of the paper in  Lancet..  This paper was written before the UCSF Legacy Tobacco Documents Library was available, so citations are to industry web sites and Bates numbers.  All these documents are available in LTDL now.)

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