Tobacco devil in details: How Russia was deviated from WHO FCTC
The President of the Russian Federation Vladimir Putin signed the Federal law of the Russian Federation of February 23, 2013 N 15-FZ "On protection of health of citizens from impact of ambient tobacco smoke and the consequences of consumption of tobacco."
The law was adopted by the State Duma on February 12, and approved by the Federation Council on 20 February.
The new law abrogated the Federal law of July 10, 2001 N87-FZ "On restriction of smoking of tobacco," the country's first of its kind. The 2001 law proved to be ineffective, because it was prepared under extreme pressure from foreign tobacco companies, which penetrated in Russia after 1991.
New hopes were pinned on the accession of the country to a new international law - Framework Convention of the World Health Organization on Tobacco Control, approved by most countries of the world, including Russia, in 2003. However, in the Russian Governmental delegations to Intergovernmental Negotiating Body meetings on the draft Convention in Geneva, Switzerland, which lasted for several years, nongovernmental activists, including the author, uncovered a disguised high-ranking official of "British American Tobacco".
In our book "Russia: Deal is tobacco. Investigation of mass killing" published in 2012,21 we analyse how internal legislation and process of Framework Convention were undermined, how foreign tobacco companies took dominant role, and captured almost completely local tobacco market. Tobacco impact on health and life of Russians, as well as all aspects of tobacco industry in Russia, including organization, economics, human resources, tobacco promotion, penetration in Governmental regulating bodies, business and expert communities, civil society, are reviewed for the first time, suggesting what should be done with socially dangerous businesses in the national interest.
Now Russia is at the top of the world in prevalence of smoking. Number of tobacco consumers exceeds 50 million, more than a third of total population. Annual number of premature deaths caused by products of tobacco companies is 400,000. Annual volume of about 400 billion cigarettes is produced with value of $ 13 billion. Spending on tobacco promotion exceeds $ 1 billion per year. After paying negligible excise tax, profits are exported abroad, and the damage is not compensated at all. The main countries - recipients of mammoth tobacco generated profit flows from Russia are Japan (about 40% share of Russian market belongs to JTI), USA (PMI), UK (BAT and IT), and South Korea (KT&G).
Foreign tobacco companies advise national authorities, hire leading experts, carefully select human resources among Russian talented young people. Scary "merits" of tobacco bosses are solemnly acknowledged by high official awards.
For a few key subjects of the Federation, including Saint Petersburg - the Russian tobacco capital and the forge of the ruling elite, hastily constructed, largest in the world factories of foreign tobacco companies, became vitally important for incomes of local budgets.
Russia has turned into tobacco superpower, global center of tobacco evil, key logistics, production, sales, human resources and management platform of the largest five tobacco companies in the world, employing innovative technologies, backed up by pressure from the leading nations.
Above mentioned facts explain difficulties of adequate countering of tobacco epidemic in Russia's national interest. Our country has had the opportunity to join Framework Convention in 2003, but five precious years were spent on simple movement of papers.
After ratification in 2008, Framework Convention process in Russia was split. In the end of 2008, Federal law of the Russian Federation of December 22, 2008 N 268-FZ "Technical regulations on tobacco products" was adopted, probably normalizing activities of tobacco companies in view of risks posed by process of Framework Convention. Tobacco industry association has developed draft of these technical regulations and presented it to legislators. This fact can be considered as a serious violation of Article 5.3. of the Framework Convention:
"Article 5. General obligations
…3. In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law." 22
Five years after ratification were spent in Russia for preparation of legislative proposals that would ensure implementation of provisions of Framework Convention in the Russian legislation. Protracted pause was filled in part with “Concept of implementation of State policy of countering consumption of tobacco for 2010-2015”,23 signed by the Chairman of the Government of Russia, Vladimir Putin in September 2010. Like many other Governmental concepts, this one does not have status of a law or of a Government program.
State Duma, it seems, did not succeed in drafting the necessary law, and its development has been fulfilled by the Federal Ministry of Health with support from the World Health Organization and other organizations, including activities of numerous partners of Bloomberg Initiative To Reduce Tobacco Use.24
After approval by the Government in 2012, the draft law was submitted to State Duma. Rapid passage of the draft law might be probably explained by the fact that Russia is looking forward this year to scheduled first five-year report on the implementation of international obligations under Framework Convention. Among other possible reasons might be extreme "flexibility" of officials responsible for demography and public health in the process of negotiating the final text.
According to “Report of the State Legal Department” of the Administration of the President of the Russian Federation:
"The Federal law was adopted with the aims of implementation in the Russian legislation of provisions of Framework Convention of the World Health Organization on Tobacco Control, which was ratified by the Russian Federation in 2008, and regulates relations, emerging in the sphere of protection of health of population from impact of ambient tobacco smoke and consequences of tobacco consumption.
Federal law establishes:
general terms and principles of protection of health of citizens from impact of ambient tobacco smoke and consequenes of consumption of tobacco;
authorities of bodies of Governmental power in the sphere of protection of health of citizens from impact of ambient tobacco smoke and consequences of consumption of tobacco;
rights and responsibilities of citizens in the sphere of protection of health from impact of ambient tobacco smoke and consequences of consumption of tobacco;
prohibition of smoking of tobacco at particular territories, in compartments and places;
pricing, taxation and organizational measures to reduce demand for tobacco manufactured articles and to restrict trade of tobacco manufactured articles;
prohibition of advertising and sponsorship of tobacco;
measures of medical care for citizens, aimed at treatment of tobacco dependence;
measures of State surveillance in the sphere of protection of health of citizens from impact of ambient tobacco smoke and consequences of consumption of tobacco and of liability for violations of requirements of the Federal law.
Federal law also abrogated:
Federal law "On restriction of tobacco smoking";
Federal law "On introducing amendments to Article 10 of the Federal law "On restriction of tobacco smoking ";
Article 50 of the Federal law "On introducing amendments and additions to some legislative acts of the Russian Federation in connection with adoption of the Federal law "On licensing of specific kinds of activities";
Federal law "On introducing amendments to Articles 3 and 6 of the Federal law "On restriction of tobacco smoking";
Article 2 of the Federal law "On introducing amendments to Chapter 22 of Part two of the Tax Code of the Russian Federation and some other legislative acts of the Russian Federation."25
The adopted law deserves detailed consideration.
The law points to its correspondence to the Framework Convention. However, in the title of the law and in the subject of its regulation, there can be seen fundamental differences from Framework Convention, at the level of objective-setting.
Convention contains Article 3. Objective:
“The objective of this Convention and its protocols is to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke.”
Compare the title of the adopted law: "On protection of health of citizens from impact of ambient tobacco smoke and consequences of tobacco consumption."26
Article 1 "Subject of regulation of this Federal law," says:
"This Federal law in accordance with Framework Convention of the World Health Organization on Tobacco Control regulates relations, emerging in the sphere of protection of health of citizens from impact of ambient tobacco smoke and consequences of consumption of tobacco."
Tobacco business is known as very inventive one. This business is booming, in spite of the fact it was sentenced to scrap nearly 100 years ago. However, starting from the mid-1960s, tobacco companies have to pay off exorbitant money for compensation of health damages in many countries, and also have to move their tricks, including legal ones, to parts of the world weakened by deficiencies of State administration and corruption.
In the adopted law, there can be seen an obvious distortion of the wording of Convention, so that "ambient tobacco smoke” occupied the primary place in the title and body of Russian law.
Legal and linguistic tightrope walking, clumsy translation from foreign language, are hardly accidental, and can destroy spirit and letter of obligations of the State towards population of the country, and Framework Convention.
It looks like smokeless forms of tobacco use, included in Article 2, are left beyond regulation, except for restrictions on nasvay referred to in Article 19.
In the wording of Article 1 of the law, tobacco control measures can be perceived as concentrated on sphere of protection of health of citizens, understood by many as activities confined to medical care. It is probable that new the law has become purely "medical". Importance of medical care in adoption of "social, environmental and economic" decisions in Russia, is not high, to put be polite. Note that failure of health care authorities around the globe to counteract aggressive tobacco capital has become obvious, and this is one of the main reasons for development and adoption of Framework Convention. Therefore, "medical" law on tobacco control is today futile.
In Article 2 "Basic terms used in this Federal law" some terms are used, which also differ significantly from terms contained in Framework Convention.
Central term in Framework Convention, from our point of view is the following:
“Article 1.Use of terms
For the purposes of this Convention:
…(d) “tobacco control” means a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke; … "
It seems that this term is not included in the new law, neither directly nor through the reference in section 2 of Article 2, nor in the content of the law.
Framework Convention contains another clear definition:
“…(e) “tobacco industry” means tobacco manufacturers, wholesale distributors and importers of tobacco products;”
According to known experts on tobacco control, the term for tobacco industry, also mentioned in Article 5.3 of the Framework Convention, should cover not only manufacturers, wholesale distributors and importers, but also other organizations and individuals working for the benefit of tobacco industry, or on behalf of the industry, such as front groups, retailers, tobacco trade unions and individuals, including employees, lawyers, researchers, lobbyists and journalists.27 Their work, as well as products manufactured by tobacco companies, should be subject to monitoring and denormalization.
In view of materials we have on Russia, to this black list should be added those members of the State regulatory agencies, private business and civil society, international organizations, physicians, teachers, who support tobacco industry directly or indirectly. It seems necessary also to add to this term those involved in illegal turnover and smuggling, because up to one third of turnover of production of tobacco companies is illegal.
The new law is based on Russian-made, narrow term of so-called "tobacco organizations," which, without any explanation, does not mention even wholesale distributors:
"... Article 2 ...... 6) tobacco organizations - legal entities irrespective of their organization-legal form, performing production, moving of tobacco products across the customs border of the Customs Union within the framework of Eurasian Economic Community or across the State Border of the Russian Federation with the states - members of the Customs Union within the framework of Eurasian Economic Community, or organizations recognized in accordance with legislation of the Russian Federation as affiliates of these legal entities, subsidiaries and dependent organizations, associations of such entities, and also organizations created by such entities. For purposes of this Federal law, to tobacco organizations are equated individual entrepreneurs, performing production, moving of tobacco products across the customs border of the Customs Union within the framework of Eurasian Economic Community and the State Border of the Russian Federation with the states - members of the Customs Union within the framework of Eurasian Economic Community.”
Accordingly, in Article 16 "Prohibition of advertising and stimulation of tobacco sales, tobacco sponsorship," and in several other articles, regulation concern "tobacco organizations" only.
A few years ago tobacco business was expelled from business associations on the global level. It is generally recognized that contacts with these socially dangerous outcasts kill reputation of politicians, bureaucrats, researchers, business and civil society activists. In a number of countries special laws to protect bureaucracy from tobacco industry were adopted. Nothing of the kind can develop from the law passed in Russia. Even India has banned foreign direct investment in tobacco industry. Russia is continuing policy of lending, investment, tax preferences to foreign tobacco companies, whose products will now be killing people even more "legally" than ever before.
Foreign tobacco companies advise Russian State authorities. By ordinances signed by the Chairman of the Government of Russia, special lists of technological equipment (including components and spare parts), analogues of which are not produced in the Russian Federation, which are imported into the customs territory of the Russian Federation without being subject to value added tax, are approved periodically. The Government persistently and consistently, even after ratification of Framework Convention, includes in this welcome list "Machinery for preparing or making up tobacco." 28
There is an important letter of the Federal Customs Service of the Russian Federation from March 4, 2005 N 06-61/6681 «On sanitary-epidemiological expertise":
"In accordance with the letter of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare from 27.10.2004 N 0100/2170-04-31, I inform that during customs clearance of raw tobacco materials, imported by manufacturers of tobacco products, including exploded and reconstituted tobacco, as well as support materials; paper for the production of cigarettes, foil, cardboard, triacetin, polypropylene film for use in the tobacco industry, it is not required to provide sanitary-epidemiological conclusions and certificates of State registration.
I ask to bring this information to the subordinated customs authorities and interested persons. Chief of the Chief Directorate of product nomenclature and trade restrictions, General-Lieutenant of Customs service A.O. Kudryashev." 29
Russia practically does not grow tobacco. Absolute majority of tobacco raw materials are imported. 95% of imported tobacco for production of 400 billion cigarettes is cleared at one customs point at Leningrad Oblast.
It is hard to believe that such regulation in Russia, will be amended by Section 5 of Article 4 "Basic principles of protection of health of citizens from impact of ambient tobacco smoke and consequences of tobacco consumption”:
"... 5) priority of protection of health of citizens over interests of tobacco organizations...".
In paragraph 9 of the same Article the following principle is written:
"... 9) informing population about harm of consumption of tobacco and harmful impact of ambient tobacco smoke ...".
In this case, the most important direction of informing population about marketing activities of the tobacco industry, including impact on legislation and information space, is not envisaged by the adopted law.
Similarly, Article 11 "Organization of the implementation of measures aimed at prevention of impact of ambient tobacco smoke and decreasing consumption of tobacco" prescribes:
"In the aims of preventing the emergence of diseases linked with impact of ambient tobacco smoke and tobacco consumption, reduction of consumption of tobacco, the following measures are implemented:
... 4) educating population and informing it about harm of consumption of tobacco and harmful impact of ambient tobacco smoke. "
The same feature can also be seen in Article 15 "Education of population and informing it about harm of consumption of tobacco and harmful impact of ambient tobacco smoke."
Though there is envisaged
"... Provision of information:
...3) on tobacco industry ... "
it is not specified what kind of information. Perhaps about white and fluffy "social responsibility" of tobacco industry, immense contribution of bloody business to the national culture, Moscow Easter Festival, where foreign tobacco company exploits authority of Russian art and the Russian Orthodox Church, "health education" among children at schools, "support" of advanced training of Russian school teachers, etc.
Article 15 also says:
"... 3. The main directions and aims of education of population are defined in the framework of information and communication strategy on fight against consumption of tobacco, approved by the Federal executive power body, performing functions of development and implementation of State policy and normative-legal regulation in the sphere of health care .... "
In this formula, "strategy" remains in one sector. It is unlikely that the Ministry of Health would possess political, administrative, financial and other resources required for adequate involvement of necessary participants, including mass media, so far successfully used by tobacco business.
It is hard to believe that the adopted law will help Russia to develop successful multi-billion dollar claims against tobacco companies, common in many countries, to compensate damage to health and life of citizens from consumption of toxic addictive products of tobacco industry.
At the same time, Section 10 of Article 4 "Basic principles of protection of health of citizens from impact of ambient tobacco smoke and the consequences of tobacco use," states:
"... 10) compensation of damage, caused to life or health, property of citizen, including property of individual entrepreneur, or legal entity as a result of violation of legislation in the sphere of protection of health of citizens from the impact of ambient tobacco smoke and consequences of consumption of tobacco."
It is important to mention Section 6 of Article 6 "Authorities of bodies of Governmental power in the sphere of protection of health of citizens from impact of ambient tobacco smoke and consequences of tobacco consumption”:
"...6) adoption of additional measures aimed at protecting health of citizens from impact of ambient tobacco smoke and consequences of tobacco consumption;...”
It is likely that number of subjects of Federation, including Tatarstan, Chuvashia, Chechen Republic will be able to develop inspiring examples, but the new law does not provide opportunities for territories for protection of health of citizens from smokeless forms of tobacco consumption.
It seems, that cheeky penetration of tobacco industry in State administration, so prevalent in Russia, will not be prevented by Article 8 of the law "Interaction of bodies of State power and bodies of local self-government with tobacco organizations":
"1. When interacting with individual entrepreneurs, legal entities in the sphere of protection of health of citizens from the impact of ambient tobacco smoke and consequences of consumption of tobacco, bodies of State power and bodies of local self-government shall ensure accountability and transparency of such interaction.
2. Interaction between bodies of State power and bodies of local self-government with tobacco organizations on matters being subject of regulation of this Federal law, must be implemented publicly, and requests of tobacco organizations, submitted in written form or in the form of electronic documents, and responses to these requests are to be posted at official websites of bodies of State power and bodies of local self-government in the information and telecommunications network "Internet". "
Alas, transparency and accountability in Russia are not keeping up with corruption, and preventing, detecting and overcoming conflicts of interest is in the very beginning. Section 1, probably, is aimed primarily at activities of tobacco control volunteers, annoying tobacco business, and section 2 concerns "tobacco organizations" only.
Interests of foreign tobacco companies are reliably assured by their well staffed and budgeted powerful units developing relations with government regulators and the public – GR and PR.
Probably promotion of Ms. N.V. Shkolkina to State Duma on the list of "United Russia" political party in December 2011, is related to preparation of this law, vitally important for foreign tobacco industry.
In 2003 - 2011 she was executive director of the “Council for development of tobacco industry” established in Russia with direct involvement of foreign tobacco companies. She participated in preparation of successful legislative initiative of tobacco industry - technical regulations, and was recognized as "Best GR-manager" of tobacco industry in Russia of 2009. At present she is Deputy Chairman of State Duma Committee on Agriculture, member of General Council of the ruling political party "United Russia".30
In Article 9 "Rights and responsibilities of citizens in the sphere of protection of health of citizens from the impact of ambient tobacco smoke and consequences of consumption of tobacco”, something like victim blaming can be traced:
"... 2. In the sphere of protection of health of citizens from the impact of ambient tobacco smoke and consequences of consumption of tobacco citizens must:
... 2) take care of the forming in children of a negative attitude to consumption of tobacco ... "
as if citizens have resources that can resist the infernal marketing kitchen of tobacco industry! This wording might also suggest deceptive impression that tobacco problem is related to children only.
In Article 12 "Prohibition of smoking of tobacco at particular territories, in compartments and places" in section 1, legislators have not been able to formulate general principles of prohibition, and developed closed list, which is clearly incomplete. In near future we will see new incidents, such as continued advertizing of products of tobacco companies in Russian subway after advertizing there was prohibited. In addition, as expected, in this Article there is no prohibition of consumption of smokeless forms of products of tobacco companies.
It seems that Section 4 of this Article leaves, without a clear reason, large vulnerable group of Russian population without protection from consequences of consumption of tobacco, providing protection only from "ambient tobacco smoke", and also in an order which is approved separately:
"... 4. For persons, staying in probationary wards, and other places of detention or serving a sentence in corrective facilities, protection from impact of ambient tobacco smoke is ensured in the order, established by the Federal body of executive authority authorized by the Government of the Russian Federation, in consultation with the Federal body of executive power, responsible for development and implementation of State policy and normative-legal regulation in the sphere of health care .... ".
At the same time, the law does not mention such priority group as Russian military, who also suffer from the spread of tobacco epidemic.
The second part of this Article provides for the establishment of smoking rooms, although it is known that complete and total isolation and ventilation of such places is virtually unattainable.
It was proved in many countries, including the neighboring Ukraine, that key role in combating tobacco epidemic is successfully played by price and tax measures. In the law there is Article 13 "Price and tax measures, aimed at reduction of the demand on tobacco products," which states:
"... 2. Measures of State influence on level of prices of tobacco products are implemented by means of establishment of minimum retail prices of such products. Minimum retail price of tobacco products is the price, below which the unit of consumer package (pack) of tobacco products can not be sold to consumers by enterprizes of retail trade, public catering, sphere of services, and also by individual entrepreneurs.
3. Minimum retail prices are set at the level of seventy-five percent of the maximum retail prices, determined in the order, prescribed by the Tax Code of the Russian Federation ... ".
In Russia, tobacco companies possess an immense influence on State tax policy in respect of tobacco. They took out State tax officials for conferences. According to the Tax Code of the Russian Federation, Article 187.1. "Order of determining estimated cost of tobacco manufactured articles, in respect of which combined tax rates are established":
"... 2. Maximum retail price is the price, above which unit of consumer package (pack) of tobacco manufactured articles can not be sold to consumers by enterprizes of retail trade, public catering, sphere of services, and also by individual entrepreneurs. Maximum retail price is set by taxpayer independently, per unit of consumer package (pack) of tobacco manufactured articles separately for each brand (each item) of tobacco manufactured articles ... ".31
Thus, not the State, but foreign tobacco companies will continue "independently" to determine prices for their products in Russia, to effect growing, not shrinking demand. Loudly declared "State influence" on establishing minimum prices will be limited to simple calculation of 75% of maximum price set by tobacco companies. Medical profession in Russia will continue to be “beaten” for poor disease and death rates, and tobacco companies will thrive and buy work of experts, justifying "economically viable" solutions.
A brief article 14 "Regulation of content of tobacco manufactured articles and regulation of disclosure of contents of tobacco manufactured articles, establishing requirements for the packaging and labeling of tobacco manufactured articles " refers to the previously mentioned Russian law on technical regulation, which was developed and presented to legislators by organization established with participation of foreign tobacco companies. Indeed, tobacco manufacturers add a lot of chemicals and recycled waste in modern tobacco products, in particular, there are reports on use of blood of ... pigs. 32 Foreign tobacco industry, of course, is in no hurry to reveal in Russia this information, devastative for their business.
Situation is similar in provisions of Article 16 "Prohibition of advertising and promotion of sales of tobacco, sponsorship of tobacco":
"... 5. Prohibition of advertising of tobacco, tobacco manufactured articles and smoking accessories is implemented according to legislation of the Russian Federation on advertising...".
It is well known that foreign tobacco companies, along with producers of alcohol, beer and junk food, energy drinks are running the show in the Russian advertising.
This Article 16, really important to address the tobacco epidemic, may resemble simple transformer or plasticity of heated processed cheese:
"... 1. In order to reduce demand for tobacco and tobacco manufactured articles it is prohibited:
…з) use of trade names, trademarks, goods marks, service marks, and also of commercial designations belonging to tobacco organizations, in organization and implementation of charitable activity; "
2) sponsorship of tobacco... ".
Thus, following this legislative prohibition, "charity" activity of "tobacco organizations" is permitted, and almost imperceptible line between permitted and forbidden activities is likely to be drawn successfully for a fee by inventive, creative lawyers serving tobacco industry. The law does not contain prohibition vitally important for Russia related to financing of political parties, political corruption, penetration of tobacco industry into State regulatory bodies.
The same Article, while prohibiting, permits access of tobacco industry to the most important means of influence on mass behavior, including promotion of tobacco use:
"... 2. Not allowed is demonstration of tobacco manufactured articles and process of tobacco consumption in audiovisual works newly created and intended for adults, including television and video films, in theater and entertainment performances, in radio, television, video and newsreel programs, and also public performance, broadcast, cable transmissions and any other use of works, performances, programs, in which demonstration of tobacco manufactured articles and tobacco consumption process take place, except in cases where such action is an integral part of the artistic design... ".
In addition, this Article provides that
"... 4. Is permitted demonstration of tobacco manufactured articles and of process of tobacco consumption while informing population about harm of consumption of tobacco and harmful impact of ambient tobacco smoke in mass media when information campaigns are implemented...".
It is likely that exciting competition of creative virtuosos hired by tobacco industry, legally promoting toxic products under the guise of fight against tobacco, will continue in Russia. One recent example - huge posters on Moscow roads "Buy yourself...", at which very big cigarette is drawn bearing name of disease, written in very small letters, visible only from a short distance.
Article 17 "Providing medical care to citizens, aimed at stopping consumption of tobacco, treatment of tobacco dependence and impacts of consumption of tobacco" envisages
"... 2. Provision of medical care to citizens, aimed at stopping consumption of tobacco, including prevention, diagnosis and treatment of tobacco dependence and impacts of consumption of tobacco, by medical organizations of State health care system, municipal health care system and private health care system, is performed in correspondence with program of State guarantees of free provision of medical care to citizens.
3. Medical treatment aimed at stopping consumption of tobacco, treatment of tobacco dependence and consequences of consumption of tobacco, is provided on the basis of standards of medical care and in accordance with the order of provision of medical care ... ".
Tobacco consumption in any form is an incurable, recurrent, deadly disease. Today addiction theory and practice can lead less than 20% of users to a sustained remission lasting a year. However, neither the abovementioned standards nor the orders of the Ministry of Health have been agreed and approved, even for adults, as well as for dependent minors.
One of obvious difficulties in these developments in Russia is relatively high cost of quality care for cessation of tobacco use, combined with numbers of dependent individuals reaching half a hundred of millions.
In this situation, our State, which probably allowed tobacco companies to involve more than third of total population in drug addiction, might be reluctant to pay.
It should be noted that some influential experts in developed countries start to consider plant alkaloid Cytisine (Tabex) as most promising means for cessation of tobacco use in large-scale government programs on criteria of safety, effectiveness, efficiency and availability. This pharmaceutical was developed and widely applied in former Socialist countries, including former Soviet Union. Thus recent Russian experience can benefit internal and global needs.
Russia occupies second place in the world after China in terms of illegal trade in cigarettes, this illegal trade in Russia reached 76 billion cigarettes in 200733; and is a source of large-scale, shameful smuggling of products of tobacco companies from Russia, primarily to Europe and CIS, which is bad for Russia’s international image.
According to estimates of WHO European Regional Office, in the Russian Federation 20-30% of total number of cigarettes are smuggled; WHO concluded that the Russian Federation is the largest illegal tobacco market in Europe in terms of volume. 34 Even with differences between estimates, smuggling of such magnitude raises questions about role and involvement of tobacco companies in its organization.
Countries-Parties to the Framework Convention are persistently implementing mechanisms, calling on Russia to take relevant action on smuggling. Article 18 "Prevention of illegal trade of tobacco products and tobacco manufactured articles" includes development of accounting of activities of tobacco business, which probably was absent until recently, according to the wording of Article:
"1. Prevention of illegal trade of tobacco products and tobacco manufactured articles includes:
1) Ensuring accounting of production of tobacco manufactured articles, moving of tobacco products and tobacco manufactured articles across customs border of Customs Union within the framework of Eurasian Economic Community or State Border of the Russian Federation with states - members of Customs Union within the framework of Eurasian Economic Community, implementation of wholesale and retail trade of tobacco products and tobacco manufactured articles;
2) tracking turnover of production equipment, moving and distribution of tobacco products and tobacco manufactured articles;
3) putting an end to cases of illegal trade of tobacco products and tobacco manufactured articles and taking to accountability, including confiscation of counterfeit tobacco products and tobacco manufactured articles, illegally moved across customs border of Customs Union within the framework of Eurasian Economic Community or across State Border of the Russian Federation with states - members of Customs Union within the framework of Eurasian Economic Community, of equipment which was used for production of counterfeit tobacco manufactured articles, their destruction in accordance with legislation of the Russian Federation.
2. Accounting of production of tobacco manufactured articles, moving of tobacco products and tobacco manufactured articles across customs border of Customs Union within the framework of Eurasian Economic Community or State Border of the Russian Federation with states - members of Customs Union within the framework of Eurasian Economic Community, performing wholesale and retail trade of tobacco products and tobacco manufactured articles, tracking turnover of production equipment, movement and distribution of tobacco products and tobacco manufactured articles, are performed on basis of data of customs and tax accounting, systems of labeling of tobacco manufactured articles with special and (or) excise stamps and of own accounting systems of manufacturers. Federal body of executive power that performs analysis of information referred to in this article, and procedure of exchange of information between supervisory authorities, are established by the Government of the Russian Federation.
3. In the aims of prevention of illegal trade of tobacco products and tobacco manufactured articles, each pack and each package of tobacco manufactured articles, are subject to mandatory labeling in accordance with requirements of legislation of Russian Federation on technical regulation".
It is noteworthy that sections 1 and 2 of Part 1 and Part 2 of this Article shall come into force on 1 January 2017. Perhaps, in interests of tobacco business, about 4 years time is envisaged to introduce order, or perhaps for covering up traces of violations. So, Russian smuggling is likely to continue.
The law does not, as was expected, considerably reduce the abnormal, up to 500,000, number of points of sales of products of tobacco companies in Russia, which are often difficult to relate to the 'white' economy. Here is Article 19 "Limiting of trade of tobacco products and tobacco manufactured articles":
"1. Retail sale of tobacco products is carried out in stores and pavilions. For purposes of this article, the store is understood as a building or part of it, specially equipped, designated for selling goods and services to customers and provided with trade, ancillary, administrative spaces, as well as spaces for reception and storage of goods and preparing them for sale, pavilion is understood to be a building, having sales hall and designed for one workplace or several workplaces. "
Reduction of number of points of sale on basis of floor space, we think, was rejected due to false perceptions of "political" risks of the draft law, campaign in Russian regions to collect signatures of owners of kiosks, also by picturing this measure as competitive action of chain stores, and by numerous other tobacco industry-friendly actions.
The law does not provide restrictions on tobacco sales in time.
At points of sale, according to adopted law, probably, it would not be possible to use modern visual health warnings on risks of tobacco companies' products for health:
"5. Information on tobacco products offered for retail sale shall be communicated by seller, in accordance with legislation of the Russian Federation on consumer protection, to information of buyers by placing in sales hall of a list of tobacco products on sale, the text of which is made of letters of same size in black on white background, and which is compiled in alphabetical order, with indication of price of tobacco products for sale, without use of any graphics images and pictures... ".
Similar wording is used in technical regulations on tobacco developed with participation of tobacco business in 2008, which did not allow, until present, introduction of pictorial health warnings on products of tobacco companies in Russia.
The same Article states that
"8. Wholesale and retail trade of nasvay is prohibited. "
From this prohibition would follow that it is allowed to import and distribute nasvay in Russia under pretext of personal consumption. Nasvay contains tobacco, slaked lime, and some other exotic ingredients.
It is noteworthy that at home country of nasvay, in Turkmenistan, Presidential Decree prohibited its production, distribution, use and delivery in 2008. In Kazakhstan, according to decree of President dated 2011, nasvay is regulated as illegal drug. Thus, millions of migrants coming to Russia from countries that have already prohibited nasvay, will be able to legally import and consume, treat others on free basis.
Prohibition on sales related only to nasvay in this law may indicate that turnover of all other, not mentioned here smokeless forms of tobacco use, included in Article 2, section 1:
"...4) tobacco - tobacco smoking, sucking, chewing, sniffing tobacco;..."
remains virtually unregulated.
In connection with adoption of the law, it is probable that Russia is doomed to wide dissemination of use of smokeless forms of tobacco consumption, no less dangerous than smoking. In particular, we can expect further spread of snus, sale of which is prohibited in EU in 1992, with exception of Sweden and Norway. In this case, it seems that new forms of products of tobacco companies will complement, and not replace record levels of smoking already achieved in Russia. Population of the country, first of all – young people, will probably be subject to persistent promotion of addictive tobacco chewing.
By the way, the new law does not prohibit directly or contain any mention of so-called "electronic cigarettes", and therefore, its turnover is allowed by default. These evil devices are banned in many countries, and in Russia are promoted by local interests.
Hookah, use of which is prohibited in public places, even in historically accustomed Iran and Turkey, is not prohibited by law adopted in Russia.
In Article 22 "Monitoring and assessment of effectiveness of the implementation of measures aimed at preventing impact of ambient tobacco smoke and decreasing of tobacco consumption," legislators took a pleasure to sow doubt in fact of full scientific study of tobacco in recent 100 years:
"1. Monitoring and assessment of effectiveness of implementation of measures aimed at preventing impact of ambient tobacco smoke and decreasing of tobacco consumption includes:
1) carrying research aimed at studying of causes and consequences of consumption of tobacco, actions to stimulate sales and consumption of tobacco ... "
Order of monitoring has not been developed yet. Based on its results, in particular, will be performed
"4 ... 3) preparation and submission of report on implementation by the Russian Federation of World Health Organization Framework Convention on Tobacco Control."
Article 23 "Responsibility for violation of this Federal law" provides that
"For violation of legislation in the sphere of protection of health of citizens from impact of ambient tobacco smoke and consequences of tobacco consumption, there is established disciplinary, civil-legal, administrative liability in accordance with the legislation of the Russian Federation."
However, sanctions have not been approved yet, and their adoption is likely to be impeded, because in mass media there are already seen signs of rising campaign to discredit the law.
Article 25 "Entry into force of this Federal law" delays enforcement of its provisions for a period from one to 4 (!) years.
Functioning of capital, particularly of tobacco capital, especially in Russia, alas, has no mercy.
One can agree with opinion that
"... In the text there is another fundamental problem: it includes only minimal, most obvious concessions to modern requirements of WHO, almost all of these concessions relate directly to consumer and a little bit - retailer. Interests of producer are hardly touched by new law... "35
Clause-by-clause review of adopted law could lead to conclusion that foreign tobacco companies managed to neutralize main risks to their well-being related to ratification of Framework Convention in Russia, ensuring control over introduction of relevant amendments to Russian legislation. New law appears to fit trend started in Russia by absence of regulation in 1990s, "murder" of first law of 2001 and undermining of process of Framework Convention in years 1998-2012.
Details of activities of foreign tobacco companies and their allies on draft law will be known in due time. So far many facts are available related to lobbying campaign.36
For example, before second hearings of draft law in State Duma on 25 January 2013, it was noted that:
"...there is every reason to believe that in second, decisive hearing, amendments will be considered, written in full accordance with wishes of tobacco industry. Amendments to weaken draft law, were prepared by consulting agency "Rumyantsev and partners." They run counter to position of Prime Minister of the Russian Federation Dmitry Medvedev, and the Ministry of Health. And they also contradict Concept of State policy on countering consumption of tobacco for 2010-2015, signed by Vladimir Putin in September 2010.
Anti-tobacco law, according to the agency, should not include following measures:
- Prohibition of sale of tobacco in kiosks and shops with area less than 50 square meters;
- Prohibition of open display of tobacco manufactured articles;
- Prohibition of sales of smokeless tobacco blends;
- Prohibition of sales of tobacco manufactured articles at railway stations, hotels and catering establishments;
- Establishing minimum price of pack and increasing excise tax on tobacco;
- Complete prohibition on smoking in public places;
- Prohibition on participation of tobacco industry in developing policies on tobacco control;
- Complete prohibition of advertising and promotion of sales of tobacco manufactured articles...".37
Possibility of incomplete transparency of process of development and discussion of the draft law for the public, weak position of the Ministry of Health and the relevant committee of the Duma, should be also noted.
There was obvious wide tobacco industry involvement in discussions of draft law, as well as ineffectiveness of WHO and international support groups in promoting the development and adoption of tobacco control law adequate to situation in Russia and WHO FCTC, in mobilizing civil society.
Russian state which, apparently, failed to protect national interests, will successfully report for five-year simulation of "implementation" of Convention, and Russian population will remain hostage to socially dangerous business.
Foreign tobacco companies and their allies will get new profits based on lives and health of our citizens. It seems that success of tobacco industry will be used by foreign alcohol companies that are solving similar problems in Russia.
New law is likely to be used in building regulation friendly for tobacco industry within integration processes in the region and in CIS countries, as well as in processes associated with WTO.
These tragic events take place at the background of preparation and adoption of state programs for total elimination of turnover and consumption of tobacco by other countries, including United Kingdom, Finland, New Zealand and other.
Given opportunities offered to Russia by participation in Framework Convention, is not possible to say that the new law is a step forward. Rather, it is another step towards creation of zone comfortable for global tobacco companies in Russia and CIS countries, virtually free from the Framework Convention.
Thus so far, due to various reasons, Russia fails to integrate in emerging global health policy and governance to protect its national interests.
Жданов В.Г., профессор (Москва)