If the president of a tobacco company has a private meeting with the chair of a parliamentary health committee, is there a breach of Canada's treaty obligations to protect public health from tobacco industry interference?
This question is more than hypothetical after Imperial Tobacco Canada, filed a communication report with the
Office of the Commissioner of Lobbying, stating that a meeting was held between Imperial Tobacco and Bill Casey, who is a Member of Parliament from Nova Scotia and also the chair of the House of Commons Health Committee.
The meeting took place on March the 8th, and was reported to the Commissioner's office on April 13th by Jorge Araya, the "most senior paid officer" responsible for providing such reports.
Whether or not it was Mr. Araya or some other representative of the company who actually met with Mr. Casey need not be disclosed.
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| Bill Casey, M.P. |
Nor is the company (or Mr. Casey) required to disclose more information than what is demanded in a drop-down menu choice of very broad topics. On that day, apparently, the "communication" involved "health". Nothing more has been made public
Mr. Casey was not the only Member of Parliament to grant a hearing to Imperial Tobacco representatives this spring, but he was the only one for whom "health" was the primary agenda item. (Communications reports were filed by Mr. Araya with respect to meetings with 10 other members of the governing Liberal party: Marc Miller, Bernadette Jordan, Pat Finnigan, Michel Picard, Sean Casey, T J Harvey, Darell Samson, Frank Baylis, Wayne Easter and Bill Blair. "Justice and Law Enforcement" and "Taxation" were the primary topics of these meetings.)
The FCTC Obligation
Article 5.3 of the
Framework Convention on Tobacco Control imposes the following obligation on Parties to the treaty:
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.
Guidelines to help interpret this somewhat vague obligation were adopted in an early Conference of the Parties. These guidelines note the fundamental and irreconcilable conflict between the tobacco industry's interests and public health, and recommend that the formulation of public policy on tobacco be protected from the industry to "the greatest extent possible" and that any interaction with the industry is "accountable and transparent."
Differing views on Canada's implementation of Article 5.3
In
its most recent (2014) report regarding treaty implementation, the Canadian government took the view that (a) it was not bound by the guidelines, and (b) public health policies were protected from tobacco industry interference. (Their complete response is pasted below.)
While Parties to the FCTC are not bound by the Guidelines, Canada has reviewed
the Article 5.3 Guidelines in relation to the Canadian policy, legal and
constitutional context. Canada has adopted administrative measures, such as
Health Canada's policy of not partnering with the tobacco industry on tobacco
control programming....
Generally, in Canada the primary channels of communication between
governments and the tobacco industry are limited to (i) technical discussions in
regard to both health and tax-related regulations and (ii) litigation-related
responses."
Non-governmental organizations, including our own, found that this was one of the few areas of the FCTC where implementation in Canada did not meet the minimum standards. In the
Shadow Report on FCTC implementation prepared by the Global Tobacco Control Forum in 2010, we found that Canada had failed to implement at least 13 aspects of the Article 5.3 guidelines.
A Grey Zone and a policy void
It is not at all clear that parliamentarians would be subject to the obligations of the FCTC, which focuses on the executive branch of government more than its legislative arm.
Mr. Casey, after all, is a back-bencher and a member of parliament accountable to his constituents. He was elected as chair of the Commons Health Committee by his legislative peers. In theory, he is not appointed by government, and is not an agent of government.
The reality, of course, is a little more nuanced. It would be disingenuous to claim that committee chairs are completely independent of the executive branch of government.
Moreover, the committee that Mr. Casey chairs has a particular role to play in the development of tobacco control policies, given that regulations under the Tobacco Act are automatically referred to it for approval. These would likely include any regulations to fulfill the government's pledge to implement plain packaging.
It is highly likely that Mr. Casey has never heard of the FCTC, let alone Article 5.3. The industry may have mobilized well ahead of the capacity of the new government to fill in the gap left by the previous government's decision to dismiss concerns about industry interference.
A sunnier way forward
It may be that Members of Parliament who have specific responsibilities for health policy face no prohibition on private meetings with tobacco industry officials. But they are certainly under no obligation to agree to such meetings.
Those who make such judgement calls could only benefit from some guidance. If Imperial Tobacco can arrange a meeting to discuss "health" with Mr. Casey, hopefully the health ministry can similarly be scheduled for a discussion about the "tobacco industry".
Canada's
2014 report on its implementation of Article 5.3
Protection of public health
policies with respect to tobacco control from commercial and other vested
interests of the tobacco industry
3.1.2 Have you adopted and
implemented, where appropriate, legislative, executive, administrative or
other measures or have you implemented, where appropriate, programmes on any
of the following:
3.1.2.1 – protecting public health
policies with respect to tobacco control from commercial and other vested
interests of the tobacco industry?
Yes
3.1.2.2 – ensuring that the public
has access, in accordance with Article 12(c), to a wide range of information
on tobacco industry activities relevant to the objectives of the Convention,
such as in a public repository?
Yes
3.1.2.3 If you answered “Yes” to
any of the questions under 3.1.2.1 or 3.1.2.2, please provide details in the
space below
While
Parties to the FCTC are not bound by the Guidelines, Canada has reviewed the
Article 5.3 Guidelines in relation to the Canadian policy, legal and constitutional
context. Canada has adopted administrative measures, such as Health Canada's
policy of not partnering with the tobacco industry on tobacco control
programming.
Lobbying
at the federal level in Canada is regulated under the Lobbyist Registration Act.
It is illegal for corporations of any kind to contribute to political
campaigns for electoral purposes. Some provinces also regulate lobbying.
Furthermore, the Lobbyist Registration Act introduced a requirement that
consultant lobbyists (ie: tobacco related activities) file a return with the
Commissioner of Lobbying if they communicate with a designated public office
holder under certain conditions. This registry can be searched by anyone
through a publicly-accessible website.
Health
Canada has discussed the Article 5.3 Guidelines with its federal partner
departments and with relevant departments of provinical/territorial
governments who are collaborators in the Federal Tobacco Control Strategy
(FTCS). Generally, in Canada the primary channels of communication between
governments and the tobacco industry are limited to (i) technical discussions
in regard to both health and tax-related regulations and (ii)
litigation-related responses.
In
Canada, many aspects of the tobacco industry's health policy, business and
promotional activities are matters of public record. In addition, civil
society organizations keep close track of tobacco industry activities and
maintain web sites, publications etc for this and related purposes. The
tobacco industry must report to government on its research and promotional
activities pursuant to these Regulations. Public access to information is
governed by the Canadian Charter of Rights and Freedoms, Access
to Information & Privacy Act, and the common law as it relates
to confidential business information.
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