NGOs Advise EU to Eliminate Roles Allocated to Tobacco Industry

The Smoke Free Partnership (SFP), a European coalition of NGOs working to mobilise governments to make tobacco control a political priority, has raised concerns about the track and trace provisions of the EU Tobacco Products Directive (TPD).

In a recent policy paper, SFP said the provisions should be amended to eliminate the delegation of responsibilities to the tobacco industry, in particular those which allow manufacturers and importers to appoint their own data storage providers and auditors.

Under the current regulations, the storage of tobacco track and trace data across the EU takes place at two levels: primary and secondary. Individual manufacturers and importers have their own primary repository for storing data relating to their products. The repository is provided by independent third parties that are nominated by, and that contract directly with, the manufacturers.

Although these third parties must be approved by the European Commission (EC) according to pre-defined criteria for determining independence, SFP has repeatedly voiced concerns that some third parties have long-standing, documented relationships with the tobacco industry. For instance, the current list of EC-approved providers includes at least eight (out of 10) companies with links to the tobacco industry, which raises questions about the effectiveness of the independence criteria, warns SFP.

In addition, TPD legislation potentially opens the door for the industry to apply its own security elements on unit packs of tobacco products, given that only one out of the five overt and covert elements required on the packs needs to be supplied by an independent third party.

SFP concludes that, in delegating roles to the tobacco industry, the EU track and trace system is not consistent with the WHO FCTC Protocol to Eliminate Illicit Trade in Tobacco Products (which has been ratified by the majority of EU member states as well as the EU itself). In order for the system to be fully compliant and interoperable at a global level by the time the global tracking and tracing regime under the Protocol enters into force in 2023, the TPD should be revised with the aim of eliminating roles and responsibilities delegated to the tobacco industry.

So, how likely is it that such revisions will happen? At the moment, not very likely, if a 2021 EC report ¹ is anything to go by.

The report (which forms part of a periodic, mandatory evaluation of the TPD) identifies elements of the TPD that should be reviewed as a result of scientific and technical developments, including internationally agreed rules and standards on tobacco and related products.

As far as track and trace and security features are concerned, the report concludes that ‘despite… issues affecting data quality, the traceability system is fully functional and well established. The Commission will examine whether the system’s long-term performance can be improved with stronger audits in terms of their scope, operational impact and safeguards guaranteeing their impartiality and public trust’.

No mention is made in the report, however, of any need to review the current roles and responsibilities of the tobacco industry.

On the contrary, the report states, in stark contrast to the recommendations put forward by SFP, that ‘the EU traceability system was implemented with due regard to the WHO FCTC Protocol on Illicit Trade (ITP). The system’s design fully complies with the ITP provisions. None of the ITP parties’ formal obligations were delegated to the tobacco industry’.

So, stronger and more secure audits, yes, but seemingly no major changes foreseen with regard to the industry’s ability to appoint their own data storage providers and auditors.

1 - https://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=COM:2021:249:FIN.