International context – WHO and EU

WHO Framework Convention on Tobacco Control (WHO FCTC)

Dedicated to tackling the global tobacco epidemic, has 182 Parties including the UK, which signed and ratified the FCTC before it came into force in 2005.

Provides a framework for national, regional, and international action; parties are obliged to implement the requirements of the Convention.

Sets out general obligations in Article 5, including having national tobacco control strategies, a national coordinating mechanism, and protecting health policy from tobacco industry interests (Article 5.3 and guidelines), and cross-border cooperation.

Sets out comprehensive tobacco control measures including:

• Price and tax measures to reduce the demand for tobacco (Article 6 and guidelines); and non-price measures to reduce the demand for tobacco:
  o Protection from exposure to tobacco smoke (Article 8 and guidelines);
  o Regulation of the contents of tobacco products (Article 9 and guidelines);
  o Regulation of tobacco product disclosures (Article 10);
  o Packaging and labelling of tobacco products (Article 11 and guidelines);
  o Education, communication, training, and public awareness (Article 12 and guidelines);
  o Tobacco advertising, promotion, and sponsorship (Article 13 and guidelines);
  o Demand reduction measures concerning tobacco dependence and cessation (Article 14 and guidelines).
  
  
• Supply reduction provisions:
  o Illicit trade in tobacco products (Article 15 and protocol);
  o Sales to and by minors (Article 16); and,
  o Provision of support for economically viable alternative activities (Article 17 and 18).

WHO FCTC Protocol to Eliminate Illicit Trade in Tobacco Products

First protocol to the FCTC, building on Article 15, came into force in 2018, currently has 64 Parties including the UK.

• Sets out general obligations for parties to take as strong as possible action on illicit tobacco.
• Sets out provisions on supply chain control, including licensing and tracking and tracing, handling offences, need for international cooperation, reporting, and settlement of disputes.

EU Tobacco Advertising Directive (2003/33/EC)

Regulates cross-border tobacco advertising in EU, transposed into UK law by TAPA 2002; amended (via amendments to TAPA) in light of changing obligations following UK exit from the EU by The Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2019.

• Made 26 May 2003, EU wide; sets out rules on tobacco advertising, sponsorship, and distribution implemented 14 February 2003.
• Bans cross-border tobacco advertising in EU in print media, radio, and internet.
• Bans tobacco sponsorship of events involving or taking place in multiple EU countries.
• Bans the free distribution of tobacco for promotional purposes at such events.
• Requires member states to transpose regulations into domestic law and implement appropriate penalties and enforcement.

EU Council Directive 2011/64/EU (Tobacco Tax Directive)

The Directive requires Member States to levy a minimum rate of excise duties on cigarettes and other tobacco products. UK excise taxes are among the highest in Europe. For more information see European Commission Excise Duties on Tobacco.

EU Audio-visual Media Services Directive (2010/13/EU)

Regulates audio-visual media across EU; 2010 Directive itself repealed 2007 Directive to include video-on-demand services (VODs); 2007 Directive had amended 1989 Directive to expand from TV to other audio-visual media. Only provisions relevant to tobacco included below.

• Original 2007 Directive was EU wide, published 11 December 2007 and implemented in UK via The Audiovisual Media Services (Product Placement) Regulations 2010 on 16 April 2010; 2010 Directive was EU wide and published 10 March 2010.
  
• Banned product placement of tobacco products or items which promote tobacco products in audiovisual media including TV, radio, and video-on-demand services.

EU Directive amending Directive 2010/13/EU (2018/1808/EU)

Regulates audio-visual media across EU; amends 2010 Directive to include video-sharing platforms and certain social media services and to consider e-cigarettes; transposed into UK law by The Audiovisual Media Services Regulations 2020; only provisions relevant to smoking included below.

• Published 14 November 2018, EU wide; implemented in UK via 2020 TAMSR on 16 April 2010.
• Extends ban on sponsorship of audiovisual media services or programmes to e-cigarettes.
• Extends ban on product placement in audiovisual media services or programmes to e-cigs.
• Extends rules on sponsorship and product placement in audiovisual media services or programmes to video-sharing platforms and social media services.
• Gives the provider of such platforms and services the responsibility for enforcement.

EU Tobacco Products Directive (2014/40/EU)

Regulates the manufacture, presentation, and sale of tobacco and related products, including e-cigarettes, across EU; transposed into UK law via Tobacco and Related Products Regulations 2016. Amended (via amendments to TRPR) by The Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2019 in light of changing obligations following UK’s exit from the EU. For more information see European Commission Revision of the Tobacco Products Directive and Systems for tobacco traceability and security features.

Commission Implementing Decision (EU) 2015/1842

Sets out technical specifications for the layout, design, and shape of combined health warnings.

• Amended by The Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2019 to require use of UK-specified rather than EU list of health warnings.

Commission Implementing Regulation (EU) 2018/574

Sets out the technical standards for the establishment and operation of a traceability system for tobacco products in the EU. For more info see Systems for tobacco traceability and security features.

• Requires that manufacturers and importers mark cigarette packs with a unique identifier consisting of a short sequence of alphanumeric characters including a product code.
• Sets out which information tobacco manufacturers or importers must record and transmit if required.
• Requires each EU member state to appoint an entity responsible for generating and issuing unique identifiers for cigarette packs.
• Stipulates that unique identifiers are valid for six months from point of issue.
• Requires economic operators and operators of first retail outlets to have a unique ID code.
• Sets up repositories for storing data related to tobacco products.
  

Commission Delegated Regulation (EU) 2018/573

Sets out key elements of data storage contracts as part of a traceability system for tobacco products. For more info see Systems for tobacco traceability and security features.

Commission Implementing Decision (EU) 2018/576

Sets out technical standards for security features applied to tobacco products. For more info see Systems for tobacco traceability and security features.

• Requires five different authentication elements on tobacco products including overt and covert.
• Requires member states to set up processes to scrutinise security features.