Downloaded from jech.bmjjournals.com on 21 August 2006

Health treaty dilution: a case study of Japan’s
influence on the language of the WHO Framework
Convention on Tobacco Control
Mary Assunta and Simon Chapman
J. Epidemiol. Community Health 2006;60;751-756
doi:10.1136/jech.2005.043794

Updated information and services can be found at:
http://jech.bmjjournals.com/cgi/content/full/60/9/751

These include:

References

Rapid responses
Email alerting
service

Topic collections

This article cites 8 articles, 3 of which can be accessed free at:
http://jech.bmjjournals.com/cgi/content/full/60/9/751#BIBL
You can respond to this article at:
http://jech.bmjjournals.com/cgi/eletter-submit/60/9/751
Receive free email alerts when new articles cite this article - sign up in the box at the
top right corner of the article

Articles on similar topics can be found in the following collections
Other evidence based practice (462 articles)

Notes

To order reprints of this article go to:
http://www.bmjjournals.com/cgi/reprintform
To subscribe to Journal of Epidemiology and Community Health go to:
http://www.bmjjournals.com/subscriptions/Downloaded from jech.bmjjournals.com on 21 August 2006
751

EVIDENCE BASED PUBLIC HEALTH POLICY AND PRACTICE

Health treaty dilution: a case study of Japan’s influence on
the language of the WHO Framework Convention on
Tobacco Control
Mary Assunta, Simon Chapman...............................................................................................................................
J Epidemiol Community Health 2006;60:751–756. doi: 10.1136/jech.2005.043794

See end of article forauthors’ affiliations.......................
Correspondence to:
Ms M Assunta, School of
Public Health, Edward
Ford Building, University ofSydney, NSW 2006,
Australia; marya@health.
usyd.edu.au
Accepted for publication
2 March 2006.......................

Background: The Japanese government is an important shareholder in the Japanese tobacco industry.
Negotiations to develop the WHO’s historic Framework Convention on Tobacco Control (FCTC) werebased on consensus, resulting in countries needing to agree to the lowest acceptable common
denominator in clause development.
Objective: To illustrate Japan’s role in negotiating key optional language in the FCTC text.
Methods: Summary reports, text proposals, conference papers, and speeches related to the six FCTC
negotiation sessions were reviewed for repeated words, concepts and emerging themes. Key stakeholders
were interviewed. Key words such as ‘‘sovereignty’’, ‘‘appropriate’’, ‘‘latitude’’, ‘‘individual’’,‘‘flexibility’’, and ‘‘may’’ representing optional language were examined.
Results: The Japanese government’s proposals for ‘‘appropriate’’ and optional measures are reflected in
the final FCTC text that accommodates flexibility on interpretation and implementation on key tobacco
controls. While Japan was not alone in proposing optional language, consensus accommodated their
proposals.
Conclusion: Japan’s success in arguing for extensive optional language seriously weakened the FCTC.
Accordingly, international tobacco control can be expected to be less successful in reducing the burden of
disease caused by tobacco use.

In June 2004 Japan ratified the WHO Framework
Convention on Tobacco Control (FCTC) being among thefirst 20 countries to do so.1 The ratification was described
as an ‘‘extraordinary turn around’’ by the former head of theWHO’s Tobacco Free Initiative2 and surprised many in global
tobacco control who had long perceived Japan as a memberof a triumvirate of nations with important tobacco intereststhat had shown strong signs of opposing international
tobacco control. The Japanese government’s substantial
ownership* of the world’s third largest transnational tobaccocompany, Japan Tobacco (JT), is seen by many as responsiblefor its weak tobacco control measures. Japan’s decision to
ratify the FCTC was said to have been done with ‘‘marked
reluctance’’.3 During the negotiations, Japan along with the
USA and Germany were viewed as working against the
FCTC.4–6 Positions proposed by Japan were not consistent
with achieving a stringent treaty capable of addressing
several important platforms of tobacco control. What thenmotivated Japan to ratify the FCTC?
International treaty negotiation has been described as ‘‘anart, not a science, and the results are usually finely-balanced,
living documents that often have to respond to different
constituencies in a number of jurisdictions with different
concerns and policy priorities.’’7 Experiences from othertreaties, particularly in the environmental domain, suggest
compromises are to be expected as treaties are forged by theconstraints imposed by the need for consensus: ‘‘There isoften a pronounced tendency toward lowest common
denominator bargaining, where ambitious goals, mandated
targets, and form timelines are either removed or diluted.’’8*
The Japanese government had a monopoly over the tobacco industry
that dates back to 1904, and ended in 1985 after privatisation.
However, the government is compelled by law (Tobacco Business Law) to
own substantial portions of the shares 67% until March 2002, andcurrently owns 50%.14 39

This description exemplifies key aspects of negotiations for
the FCTC, which was negotiated over three years (October2000 to February 2003) and unanimously adopted by
Member States of the WHA on May 23, 2003. While hailed
as a historic health document designed to address a global
epidemic,9 it has also been referred to as a pact with ‘‘weakbinding force’’ designed to be supported by as many countries
as possible.10
If the strength of a treaty lies in its language, the more
optional language it has, the weaker the treaty will be.
Wording permitting flexibility in interpretation and making
compliance discretionary provides a weaker treaty than one
containing obligatory language and requiring compliance.
Since 1970 the World Health Assembly (WHA) has adopted
18 Resolutions on different aspects of tobacco control. Whilethese resolutions have often been referenced by nations when
passing national tobacco control legislation, equally, theirlack of any legally binding authority has made theminconsequential for many nations.11 Although the WHA
adopted a resolution for the development of the FCTC in
1996, it was not till Dr Gro-Harlem Brundtland’s election as
director general of WHO in 1998 that work on the FCTC
started in earnest.12 Brundtland set May 2003 as the deadline
for the adoption of the FCTC that provided the impetus fornegotiations to start. Just before the first negotiations in
October 2000, WHO held a two day public hearing (12–13
October) the first time such a process had occurred in its
history, to provide an opportunity for any interested party topresent their views on the initial FCTC text. Representatives
from 144 organisations and institutions gave oral testimonies
Abbreviations: FCTC, Framework Convention on Tobacco Control; JT,
Japan Tobacco; JTI, Japan Tobacco International; WHA, World Health
Assembly; INB, intergovernmental negotiating body; BAT, British
American Tobacco; NGO, non-governmental organisationwww.jech.com

Downloaded from jech.bmjjournals.com on 21 August 2006
752

Assunta, Chapman

Table 1

Recent Japanese prime ministers in the context of milestones in FCTC
Ryutaro Hashimoto: viewed as pro-tobacco14
Dr Gro-Harlem Brundtland: appointed director general of WHO, FCTC
made a priority project
Two Working Group meetings: WHO Member States drafted the initial
15
FCTC text (chair’s text) for the negotiations.
Yoshiro Mori: appointed a pro-tobacco health minister who annihilated
tobacco control efforts14
WHO Public Hearing on the proposed FCTC chair’s text
First Session of the Intergovernmental Negotiating Body (INB1)
Junichiro Koizumi: former Minister of Health who supported tobacco
control efforts in his ministry
Second Session of the Intergovernmental Negotiating Body (INB2)
Third Session of the Intergovernmental Negotiating Body (INB3)
Fourth Session of the Intergovernmental Negotiating Body (INB4)
Fifth Session of the Intergovernmental Negotiating Body (INB5)
Sixth Session of the Intergovernmental Negotiating Body (INB6)
56th World Health Assembly unanimously adopted the FCTCThe FCTC was opened for signatures
Japanese government signed the FCTCJapanese government ratified the FCTCThe FCTC closed for signatures with 168 signatories
FCTC entered into force and became legally binding for the first 40
countries that ratified the treaty

January 1996–July 1998
May 1998
October 1999–March 2000
April 2000–April 2001
12–13 October 2000
16–21 October 2000
April 2001–Present
30 April–5 May 2001
22–28 November 2001
18–23 March 2002
14–25 October 2002
17–28 February 2003
23 May 2003
30 June 2003
9 March 2004
8 June 2004
29 June 2004
27 February 2005

Source: http://www.who.int/tobacco/framework/en/;http://www.japan-zone.com/omnibus/
prime_minister.shtml

Table 2Delegation size of selected countries to the INB negotiations in Geneva*

Country

INB1

INB2

INB3

INB4

INB5

INB6

Australia
BrazilCanadaChina
Germany
India
Japan
RussiaUK
USA
South Africa

5
10
13
13
6
5
7
10
11
9
3

7
11
17
18
7
5
7
14
13
12
3

6
14
14
14
7
5
10
23
17
15
3

8
12
16
20
8
6
13
26
18
14
4

10
9
16
18
11
8
18
21
16
16
5

10
9
17
18
8
8
20
18
16
17
5

Source: WHO FCTC web site: http://www.who.int/gb/fctc/. *Rationale for selection of countries: China, USA,
Russia, Japan, and Brazil are the world’s five largest tobacco manufacturers; USA, UK, Japan, and Germany are
host to world’s top tobacco transnational companies; Canada and Australia are developed countries with good
tobacco control records; India and South Africa are developing countries to provide basis for comparison.

before a panel (online appendix 1, http://www.jech.com/
supplemental) and WHO received 514 written submissions.13
Table 1 provides a summary of the main FCTC milestones.
WHO member states convened the INB and through six
sessions negotiated the FCTC text. While each member state
irrespective of size had equal negotiating status, Japan’s
participation presented particular interest because of its
government’s substantial ownership of and significant
control over the operations of JT, a transnational corporation.
Japan had an increasing presence at the negotiations, and by
INB6 had the largest delegation of any nation (table 2).
The composition of the Japanese delegation also variedwith the progress of the negotiations (on line appendix 2). At
the first two INB sessions, Japanese’s delegation consisted
mainly of representatives from the Ministry of Health,Welfare and Labour and had no representation from the
Ministry of Finance.` However, by INB6 there were as many
representatives from the Ministry of Finance as there werefrom the Ministry of Health reflecting the importance of
input from the tobacco industry.


INB, the Intergovernmental Negotiating Body (INB) was opened toparticipation by all WHO member states, regional economic integration
organisations and observers (as specified in resolution WHA52.18). The
World Health Assembly charged the INB with the responsibility fornegotiating the text of the WHO FCTC and possible related protocols(http://www.who.int/tobacco/framework/inb/en/index.html).

www.jech.com

This paper considers Japan’s proposals for the development
and final wording of the FCTC. It examines how Japan wasable to ratify the final text of the FCTC because significant
sections of the text had by then been diluted to containoptional rather than obligatory language making the FCTC
more acceptable to Japanese government concerns about thepotential impact of such a treaty on its tobacco interests.

METHODS
Ninety six documents relevant to Japan from the WHO FCTC
Documentation Centre were reviewed. These included summary reports—verbal comments made during formal negotiation sessions; conference papers (text proposals); speeches,and other relevant documentation (online appendix 3). Thesematerials were reviewed for all sections pertaining toproposals made by the Japanese delegation related to the
FCTC negotiations. The information was sorted under issues
addressed in the FCTC Articles: general/definitions; objective/
guiding principles/obligations; tax measures; secondhand`
The Ministry of Finance has direct and indirect influence over JT,
including its overall policies. The participation of the ministry may beseen as representing tobacco industry interests.14 Similarly, Japan’s
Ministry of Agriculture, Forestry, and Fisheries has historically supported
tobacco interests because of Japan’s sizeable tobacco agricultural cropand the strong political constituency of tobacco farmers.39

Downloaded from jech.bmjjournals.com on 21 August 2006
Health treaty dilution

753

Table 3 Summary of Original Chair’s text and FCTC outcome
ArticlesChair’s text (INB1)

Japan Tobacco

Japanese government

FCTC Final Text 2003

Packaging andlabelling: use of‘‘light and ‘‘mild’’

Ban on terms such as‘‘light’’ and ‘‘mild’’No ban on terms‘‘light’’ and ‘‘mild’’Health warning
Advertising, sponsorship,
and promotion
Vending machines

Include a pictogram
Strict restrictions

No total ban

Appropriate measures that terms
such as ‘‘light’’ and ‘‘mild’’ do
not convey impression tobacco
is less harmful.
May include a pictogram
Appropriate restrictions

Labelling does not promote a false,
misleading, or erroneous
impression that may include terms
such as ‘‘light’’ or ‘‘mild’’.
May be in pictograms
A comprehensive ban or restrictions

Prohibit vending machines inlocations accessible to minors

No banLiability

Take legislative action to deal
with liability and compensation
A voluntary mechanism forfinancial resources–

Appropriate measures to strictly
restrict the access of minors as
determined by domestic law
Delete text on liability

Tobacco vending machines are notaccessible to minors. Parties may
commit to total ban
Consider legislative action–

Delete text

Promote, as appropriate, utilisationof bilateral and multilateral funding

Financial resources

Source: http://www.who.int/gb/fctc/ http://www.who.int/genevahearings/; http://www.who.int/tobacco/framework/download/en/index.html

smoke; product regulation, ingredient disclosure, packaging
and labelling; education; advertising/promotion; illicit trade
reduction; sales to minors; manufacture and agriculture—subsidies; liability and compensation; research and surveillance; secretariat and financial resources (on line appendix
4). This provided a systematic index and facilitated analysisof the Japanese government’s position.
Patterns of recurring concepts and words were identified
from the information.16 Key words reflective of optional
language such as appropriate, may,latitude, individual, sovereignty, and flexibility were selected to represent the concept of
optional language that permitted flexibility in the interpretation of the treaty. These were used to examine how theJapanese government’s proposals during the six negotiations(INB1-INB6) compared with JT’s opening statement at the
Public Hearing. The final FCTC text was analysed to ascertain
how closely it corresponded to the positions tabled by theJapanese government throughout the six negotiations. Media
reports on Japan and the FCTC from online English language
newspapers and tobacco industry magazines were reviewed.
Nine interviews using semi-structured format were conducted, audiotaped, and transcribed involving key Japanese
government officials from the Ministry of Foreign Affairs(one) and the Ministry of Health, Welfare and Labour (twoplus a former official), Parliamentarian (one), and nongovernmental organisations (three), and former TFI head toverify and provide additional information on the material
obtained from the FCTC negotiations.1

RESULTS
Setting the tone
Of 514 submissions to the WHO Public Hearing, public healthsubmissions outnumbered those from the tobacco industry
by 4:1.17 Of the 144 oral testimonies presented (online
appendix 1), 80% were supportive of the FCTC ensuring
stringent tobacco controls, outlined the clear differences
between public health goals and the economic objectives oftobacco companies, and wanted the tobacco industry to be
excluded from the treaty negotiations. There were 15
submissions from Japanese institutions and organisationsof which six (40%) were pro-tobacco control and nine (60%)
pro-industry18 considerably contrasting with the ratio ofoverall submissions.
1

Attempts were made to interview officials who were part of theJapanese delegation at the negotiations, but many of them had since
moved on and were unavailable for interview. The Ministry of Financedid not grant an interview, and although they agreed to provide written
responses to questions, however the responses were never received. All
information and interviews were obtained, reviewed, and analysed byAssunta.

Significantly, JT’s submission disagreed with the fundamental objective of the Convention to reduce tobacco consumption.19
It used the words ‘‘sovereign’’ or ‘‘sovereignty’’ 11 times toemphasise the importance of recognising the autonomy ofgovernments (online appendix 5), arguing governments shouldbe left free to decide the nature of tobacco control regulations
and not be forced to implement one set of standards such as
those embodied in the FCTC. In other words the FCTC should bebroad and flexible, not prescriptive.
JT used the word ‘‘appropriate’’ eight times in its fiveminute presentation (online appendix 5) calling for: ‘‘appropriate regulation’’, ‘‘regulatory framework that is appropriate
to society and culture’’, ‘‘appropriate separation of smokers
and non-smokers’’, ‘‘appropriate protection of confidentiality’’, and that the Convention’s objectives have already beenaddressed appropriately by Member States. Examples of JT’s
appropriate measures included no total ban on tobacco
advertising and no ban on brand descriptors such as ‘‘light’’and ‘‘mild’’ on cigarette packs (table 3). These propositions
coincided with key issues specified by the Japanese government during their negotiations.
Like JT, BAT also used the word appropriate associatively
with regulation, standards, and public policy. In its submission to the public hearing, BAT used the word appropriate 14
times to describe the kind of regulation it supported (online
appendix 6). WHO’s director general, commenting on the
public hearing submissions, referred to the tobacco industry’s
call for appropriate measures that she described as ineffectiveand ‘‘measures that are known to have a very limited impact
on youth and adult consumption of tobacco.’’20
The Japanese delegation’s proposals during the six INB
sessions were closely aligned with JT’s propositions (table 3
and online appendix 7). JT’s emphasis on the importance ofrespecting ‘‘individual governments’’, of not ‘‘infringing on
sovereignty of governments’’, and leaving it up to the‘‘sovereign governments to determine legislative and regulative framework’’ was supported by Japan in its proposal to‘‘leave decisions in specific matters to individual governments’’. Japan favoured a general treaty" that could be
ratified by the largest number of countries. The idea of giving
flexibility and latitude, another implicit proposal of JT, wasproposed and maintained by Japan throughout the negotiations.
At the first INB, Japan proposed to ‘‘allow Member States acertain degree of latitude in determining the specificmeasures’’,21 and that such measures need not just beIn 2000 other countries calling for a broad treaty included the USA,
Germany, Russia, India, China, Argentina, Zimbabwe, Malawi, andTurkey, all nations with significant tobacco industries. (http://bat.
library.ucsf.edu/tid/ylk93a99)

www.jech.com

Downloaded from jech.bmjjournals.com on 21 August 2006
754

legislative but also could include ‘‘administrative measures’’
permitting further flexibility in implementation necessary forfulfilling an obligation (online appendix 8). In the final
negotiation session Japan maintained a ‘‘framework convention on tobacco control should be both effective and flexible
enough to take into account the differing circumstances ofindividual countries.’’22

Optional language in the treaty
The final FCTC text reflects the optional language proposed
by Japan throughout the negotiations (online appendices 9
and 10) especially in the clauses that the Japanese delegation
identified as four key issues namely packaging and labelling;
advertising and promotions; liability and financial resources(table 3).22‘‘Appropriate’’
Like JT, the Japanese government used ‘‘appropriate’’ at least
34 times in its proposals over the six INB sessions (online
appendix 4). They supported the ‘‘development of an
appropriate international framework convention on tobacco
control’’23 and ‘‘formulating appropriate protocols with moredetailed contents than the convention.’’24 The Ministry ofForeign Affairs believed flexibility and the use of the term
appropriate in the FCTC was a positive thing for all countries:‘‘It’s what we really insisted on. That’s because unless weput it that way it will be very difficult not only for us but for
many other countries to actually comply with the convention. If not, they will never be able to ratify theconvention.’’ (interview granted to Mary Assunta with
official of Ministry of Foreign Affairs).
The Chair’s text referred to a ‘‘ban on tobacco advertising
direct and indirect, promotion and sponsorship targeted at
persons under 18 years’’ and imposed ‘‘strict restrictions’’ forthose targeted to adults aged over 18. Japan negotiated toreplace ‘‘strict restrictions’’ with ‘‘appropriately restrict’’ and‘‘any form of sponsorship’’ with ‘‘tobacco brand sponsorship’’26 meaning that tobacco companies would be allowed toadvertise using their company name and that ‘‘appropriately
restrict’’ would be left open to interpretation by Member
States. The final FCTC text ensures flexibility and gives
governments the choice to either ban or ‘‘restrict’’.27 The word‘‘appropriate’’ appears 62 times in 19 Articles including thePreamble in the final FCTC text (online appendix 9).

‘‘May’’The Japanese delegation proposed that the word ‘‘may’’ beadded to several clauses. For example, it proposed a ‘‘general
health warning which may rotate and include a picture or
pictogram as prescribed by national authorities.’’28 The
Chair’s text had proposed each package should carry a healthwarning including a pictogram and terms such as ‘‘low tar’’and ‘‘light’’ and ‘‘mild’’ not be used on any tobacco package.
Japan’s position was not a prohibition of descriptors but
rather appropriate measures to ensure that these terms did
not ‘‘convey the impression that a tobacco product is lessharmful to health of others.’’28 The final text reflects healthwarnings may include pictograms and may (our emphases)
include terms such as ‘‘light’’ and ‘‘mild’’ (table 3). The word‘‘may’’ appears 27 times in 16 Articles, including the four key
issues (online appendix 7).

‘‘Or other measures’’
Another substantial weakening of the text was adding thephrase ‘‘or other measures’’ to ‘‘legislative, executive or
administrative’’ measures. The Japanese governmentwww.jech.com

Assunta, Chapman

proposed adding ‘‘other appropriate measures’’ to text that
addressed protecting the public from exposure to tobaccosmoke. They explained: ‘‘In Japan passive smoking had beensignificantly reduced without recourse to legislation, througha combination of measures, including administrative ones.’’29
The implications of this are important because vague,
indefinable terms provide further flexibility for non-compliance and/or encourage avoidance of additional legislation or
government control.

‘‘According to national law’’
Another vehicle for flexibility was the use of the phrase‘‘according to national law’’,28 which Japan proposed several
times. For example, on labelling: ‘‘adoption and implementation of appropriate measures, in accordance with nationallaw, to ensure that…’’ This flexibility means wording on
cigarette packs can be adjusted without enacting new laws.
At INB3, Japan proposed another flexible phrase, ‘‘within themeans at its disposal and its capabilities’’30 to infuse
flexibility into the text for price and tax measures, andcigarette sales to minors, (online appendix 4). At INB4, theAfrican region deemed that the phrase ‘‘according to its
capabilities’’ could weaken the convention, possibly providing a loophole allowing some Member States to avoid
complying with its terms.31 Similarly the South East Asian
region opposed the use of this phrase saying it was simply
redundant.32

Deletion of text
Japan called for deletion of text at least 35 times during thecourse of the six negotiations if the text was too prescriptive
or stringent. For example, on ingredient listing, Japanproposed that the word ‘‘all’’ should be deleted from ‘‘allingredients’’33 and that ‘‘including counter advertising’’34 bedeleted as an education and public awareness strategy. At
INB6, Japan called for a deletion of the text on liability. The
final FCTC text on liability is a loosely worded option toparties to ‘‘consider taking legislative action where necessary
to deal with criminal and civil liability including compensation.’’27
The Chair’s text called for financial resources to beprovidedbothnationallyandinternationally.
Internationally, the text called for a voluntary mechanism
for the provision of financial resources on a grant orconcessional basis. At INB3 the Japanese government said
it could not support a compulsory mechanism in the form ofa multilateral global fund. Neither could it support the
proposal to target the tobacco industry as a means of raisingfinancial resources. At the final negotiation session, Japan
called for the text to be deleted. The final outcome was a
weakly worded clause calling Parties to ‘‘promote, as
appropriate, the utilisation of bilateral, regional sub-regional,
and other multilateral channels to provide funding for thedevelopment and strengthening of comprehensive tobacco
control programmes of developing country Parties and parties
with economies in transition.’’DISCUSSIONAs the FCTC negotiations were resolved by consensus and notby vote, countries agreed to the lowest common denominator. The end result is a far weaker treaty than the original
Chair’s text. After four rounds of negotiations, at the fifth
INB in October 2002, the director general acknowledged thatthe text had fallen short of her expectations but was a ‘‘good
starting point’’.35 By the final negotiation the director generalappealed to countries to support a draft that could command
broad support.36
Although the text is the sum result of negotiations among
the WHA Member States, Japan’s significant role inDownloaded from jech.bmjjournals.com on 21 August 2006
Health treaty dilution

755

What this paper adds

Policy implications

This is the first paper to analyse a country’s influence in the
WHO Framework Convention on Tobacco Control (FCTC)
negotiations and the outcome as reflected in the final text ofthe treaty. While there have been news reports andanecdotal reference to Japan’s obstructive role during the
FCTC negotiations, this is the first paper to analyse their
specific language proposals for the text made during thenegotiations. This is also the first paper that addresses theelement of optional language that provides for flexibility(read weakness) in the FCTC.

The flexibility in the FCTC language offers an ostensible
excuse for the Japanese and/or other Parties to theConvention to avoid development of robust comprehensive
tobacco control policies. To fulfil the main objective of the
FCTC to reduce tobacco consumption and reduce its burden
on society, the strongest interpretation and implementation of
the FCTC must be applied.

contributing to the dilution of the final wording of the FCTC
must be recognised. The final FCTC text reflects that Japan’s
positions were accommodated (online appendix 10). As theprinciple of consensus drove the negotiations, any country
proposing a weaker position was accommodated.
Japan’s negotiating stance was anticipated by the former
director of TFI:‘‘[O]ne has to look at that in the context of how Japangenerally wants to put forward legislation. They are anti
any legislation that is clearly going to require businesses tochange their practices, without giving them this extraordinary leeway of self-regulation. And that is not just
tobacco specific. … If you follow their approach to foodpolicy, the pharmaceutical regulation, the marketing in
general, the same kind of language applies.’’ (interview
granted to Mary Assunta with Derek Yach, former directorof Tobacco Free Initiative WHO).
This is consistent with Japan’s stance in other treaty
negotiations proposing text to ‘‘tone down’’,14 38 avoid
mandatory obligation, and rephrasing explicit terms withindefinable and vague wording.39 While comprehensive
legislation is regarded as being at ‘‘the heart of effective
tobacco control’’40 this view is not shared by Japan. According
to the Japanese government, if other measures rather thanlegislation could be as effective, that would serve the same
purpose:‘‘So, appropriate measure is very crucial for us. … If wereally need to change the law, that will take many years.
With guidelines it will work but with less time.’’ (interview
granted to Mary Assunta with official of Ministry ofForeign Affairs).
Japan’s compliance record with other treaties has raised
scepticism about real change forthcoming and perhaps the
future of FCTC implementation in Japan may be ‘‘precarious’’(Levin M. Personal communication, 8 Dec 2005). A seniorJapanese government officer writing unofficially after the
FCTC was adopted noted ‘‘no implementing of legislation orbudgetary action is necessary’’ for Japan to comply with
FCTC obligations.41 The commentary suggested Japan was
already taking necessary steps to comply with several clausesof the FCTC such as revising pack health warnings to aminimum of 30% of the pack face that was phased in by 30
June 200542 and restricting tobacco advertising.41 Whilecountries have the option of applying a more stringent
interpretation of the health warning by introducing graphic
warnings on packs, Japan opted to introduce only textual
warnings.**

During the FCTC negotiations international and local
media applied pressure on Japan to re-examine its stanceon tobacco control.44–46 Typically the government was
criticised for its failure to recognise the importance of the
FCTC47 calling on the government to strengthen its smoking
controls before the adoption of the treaty in 2003. A Ministryof Foreign Affairs official confirmed that the media’s interest
and public support for Japan to ratify the FCTC was, ‘‘muchbigger than I really expected.’’25
Outside Japan, international NGOs participating in the FCTC
negotiation played a part in keeping pressure on the Japanese
government by meting out public shame such as the awardingof ‘‘Dirty Ashtray Awards’’ (of which Japan received the most)over its weak negotiating positions.48 In March 2002 at INB4,
Japan was labelled by an NGO as one of the ‘‘axis of evil’’. This
had an impact on Japan’s negotiating stance because theofficials were ‘‘shocked to be blamed and to be framed as such.’’(interview granted to Mary Assunta with former official of
Ministry of Health). According to the Anti Smoking
Parliamentarian League the ‘‘axis of evil’’ label became aneffective lobbying ‘‘key word’’ providing ‘‘political leverage’’.
(interview granted to Mary Assunta with Member of House ofCounselors from Anti Smoking Parliamentaman League).
Anticipating pressure to ratify the treaty from domestic
and foreign sources and also facing countervailingpressures to protect domestic tobacco industry interests, theJapanese government seemed to have searched for a strategy
that would appease both interests. Following earlier methods
applied in other treaty negotiations, a weakened treaty text
was a practical middle way.14 38 The final FCTC text is
compatible with Japan’s position and has sufficient optional
language particularly in crucial issues to provide sufficientroom to manoeuvre.
Japan’s behaviour throughout the FCTC negotiations waspresumably motivated by a concern to minimise any impact on
JT’s abilities to maximise domestic and export tobacco sales.
While negotiations were proceeding, JT and JTI aggressively
fought European efforts51 52 and after ratification, Asian moves53
to abolish misleading descriptors like ‘‘light’’ and ‘‘mild’’.
Japan’s success in arguing for optional language weakened the**Based on Article 36 (Tobacco Business Law Enforcement Regulations)
under Article 39 health warnings on packs were revised. The revised
regulations provide four types of warnings on direct effects of smoking
and four others. Each tobacco package must contain at least two
warnings—one direct effect and another from the others. Example ofwarning from direct effect: ‘‘Smoking is one cause of lung cancer.
According to epidemiological studies, the risk of smokers dying fromlung cancer is estimated to be two to four times greater than that for
nonsmokers.’’ This warning is followed by the address of the Health
Ministry’s web site.
Interview with former head of TFI: ‘‘I think there was a growingpressure. You must remember the world situation was one wherecountries were being grouped into those who believed in multilateralism
and the rule of the UN and international law Vs the US and thepolarization was rising. But Japan wanted to be aligned with all of those
who were going to be part of the multilateral system. They themselves
have played consistent and strong support to being part of thatmultilateral system.’’ (28 April 2005)

www.jech.com

Downloaded from jech.bmjjournals.com on 21 August 2006
756

Assunta, Chapman

FCTC. Accordingly, international tobacco control can be
expected to be less successful in reducing the burden of diseasecaused by tobacco use if parties do not go beyond the minimum
standards outlined in the FCTC.

ACKNOWLEDGEMENTS
Stacy Carter PhD for editorial comments.
The appendices are available on line (http://
www.jech.com/supplemental).

.....................

Authors’ affiliations

M Assunta, S Chapman, School of Public Health, University of Sydney,
Australia
Funding: none.
Competing interests: Mary Assunta is the Chair of the Framework
Convention Alliance (FCA). Simon Chapman is the editor of Tobacco
Control, a board member of Action on Smoking and Health (Australia)
and the Cancer Council NSW

REFERENCES
1 The World Medical Association. The WHO Framework Convention on
Tobacco Control on track to become law by the end of the year. World
Medical Journal 2004;50:77–8.
2 Yach D. Injecting greater urgency into global tobacco control. Tob Control
2005;14:73–144.
3 Boyd A. Asians kick big tobacco in the butt. Financial Express, 2005;15 Mar.
http://www.financialexpress-bd.com/index3.asp?cnd = 3/15/
2005&section_id = 17&newsid = &spcl = yes (accessed 17 Mar 2005).
4 Nullis C. World: WHO chief renews attack on tobacco 2002. http://0global.factiva.com.opac.library.usyd.edu.au/en/eSrch/ss_hl.asp (Accessed
17 May 2005).
5 Campaign for Tobacco Free Kids. Tobacco treaty negotiations make progressdespite continued U.S. efforts to weaken key provisions 2001. http://
www.tobaccofreekids.org (accessed 17 May 2005).
6 Fisher Brinson B. Who’s in control? Tobacco Reporter, 2003;Jul. http://
www.tobaccoreporter.com
7 Wilkie C. The origins of NAFTA investment provisions: economic and policy
considerations. Carlton University, 2002. http://www.carleton.ca/ (accessed
13 May 2005).
8 World Resource Institute. International environmental governance: thechanging face of environmental agreements. Washington, DC: World
Resource Institute, 2003;328. (World Resources 2002–2004: Decisions for
the Earth: Balance, voice and power. http://pubs.wri.org/
pubs_content_text.cfm?ContentID = 1802.
9 World Health Organisation. World Health Assembly adopts historic Tobacco
Control Pact. Geneva: WHO, 2003. http://www.who.int/mediacentre/
news/releases/2003/prwha1/en/ (accessed 21 Mar 2005).
10 Hanai K. Weak tobacco pact reflects Japan’s lukewarm attitude. Japan Times
2003; 25 Mar. http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?eo20030325kh.htm (accessed 24 July 2004).
11 World Health Organisation. The Framework Convention on Tobacco
Control: a primer. Geneva: WHO, 1999. http://whqlibdoc.who.int/hq/
2003/WHO_NCD_TFI_99.8_Rev.7.pdf ) (accessed 21 Mar 2005).
12 Roemer R, Taylor A, Lariviere J. Origins of the WHO Framework Convention
on Tobacco Control. Am J Public Health 2005;95:936.
13 World Health Organisation. Public hearings on the Framework Convention
on Tobacco Control: Submissions. Geneva: World Health Organisation,
2000. http://www3.who.int/whosis/fctc/fctc.cfm (accessed 5 Mar 2005).
14 Levin M. Tobacco industrial policy and tobacco control policy in Japan. Tokyo,
2004;298–318. (Tobacco Free Japan: recommendations for tobacco control
policy.
15 World Health Organisation. Proposed draft elements for a WHO framework
convention on tobacco control: provisional texts with comments of the working
group (A/FCTC/INB1/2). Geneva: World Health Organisation, 2000.
http://www.who.int/gb/fctc/ (accessed 3 Mar 2005).
16 Ryan GW, Bernard HR. Techniques to identify themes. Field Methods
2003;15:85–109.
17 World Health Organisation. Secretariat update: public hearings on the
Framework Convention on Tobacco Control. Geneva: World HealthOrganisation, 2000. http://www.who.int/gb/fctc/PDF/inb1/e1inbid1.pdf(accessed 11 Jun 2005).
18 Tobacco Free Initiative WHO. Public hearings. Geneva: World HealthOrganisation, 2000. http://www.who.int/tobacco/framework/
negotiations/en/ (accessed 3 Mar 2005).

www.jech.com

19 Japan Tobacco. Comments by Japan Tobacco on the proposed Framework
Convention on Tobacco Control. Geneva: World Health Organisation, 2000.
http://www.who.int/tobacco/framework/negotiations/en/ (accessed 3 Mar
2005).
20 World Health Organisation. WHO director-general’s response to the tobacco
hearings. Geneva: World Health Organisation, 2000. http://www.who.int/
inf-pr-2000/en/state2000-06.html (accessed 12 May 2005).
21 World Health Organisation. Provisional Summary Record of the Meeting 18
October 2000. (A/FCTC/INB1/PL/SR/6). Geneva: World HealthOrganisation, 2000.
22 World Health Organisation. Provisional Summary Record of the First Plenary
Meeting (A/FCTC/INB6/PL/SR/1 Corr 1). Geneva: World HealthOrganisation, 2003 (accessed 3 Mar 2005).
23 World Health Organisation. Provisional Summary Record of the Meeting (A/FCTC/INB5/PL/SR/1). Geneva: World Health Organisation, 2000;15 Oct.
24 World Health Organisation. Provisional Summary Record of the Meeting (A/FCTC/INB1/PL/SR/3). Geneva: World Health Organisation, 2000;17 Oct.
25 Reference withdrawn.
26 World Health Organisation. Drafting and negotiation of the WHO framework
convention on tobacco control: textual proposals and definitions submitted forthe new Chair’s text by 15 May 2002. (A/FCTC/INB5/3). Geneva: World
Health Organisation, 2002;6 Aug.
27 World Health Organisation. WHO Framework Convention on Tobacco
Control. Geneva: World Health Organisation, 2003;http://www.who.int/
tobacco/framework/download/en/index.html (accessed 3 Mar 2005).
28 World Health Organisation. Textual proposal and definitions submitted forthe new Chair’s Text by 15 May 2002. (A/FCTC/INB5/3). Geneva: World
Health Organisation, 2002;5 Aug..
29 Intergovernmental Negotiating Body (INB)2. Working Group 1: Summary
report. Geneva: World Health Organisation, 2001;30 Apr.
30 World Health Organisation. Provisional Summary Record of the First Meeting
22 November 2001. (A/FCTC/INB3/WG1/SR/1). Geneva World HealthOrganisation, 2002 1 Feb.
31 AFRO Region. [AFRO Region’s proposal on non-price measures at IN4 INB4/WG1/SR/1]. Geneva: World Health Organisation, 2002;8 Mar.
http://www.who.int/gb/fctc
32 South East Asian Region. [South East Asian Region’s proposal on non-pricemeasures at IN4 - INB4/WG1/SR/1]. Geneva: World Health Organisation,
2002;18 Mar. http://www.who.int/gb/fctc
33 World Health Organisation. Provisional Summary Record of the Second
Meeting 24 November 2001. (A/FCTC/INB3/WG1/SR/2). Geneva: World
Health Organisation, 2002;7 Feb.
34 World Health Organisation. Provisional Summary Record of the Third
Meeting 25 November 2001. (A/FCTC/INB3/WG1/SR/3). Geneva: World
Health Organisation, 2002;7 Feb.
35 Kapp C. Brundtland pleas for tough tobacco treaty meet reality. Lancet
2002;360:1231.
36 Kapp C. Tobacco-control treaty language approved despite objections. Lancet
2003;361:839–40.
37 Reference withdrawn.
38 Iwasawa Y. International law, human rights, and Japanese law: the impact ofinternational law on Japanese law. New York: Clarendon Press, 1998.
39 Levin MA. Smoke around the rising sun: an American look at tobacco
regulation in Japan. Standford Law and Policy Review 1997;8:99–123.
40 Blanke DD, da Costa e Silva VL, eds. Tobacco control legislation: an
introductory guide. 2nd ed. Geneva: World Health Organisation,
2004:15–20.
41 Nakamura K, Foreign Ministry Treaty Bureau. Enacted Laws of the 159th
session of the Parliament, ‘‘The WHO’s Framework Convention on Tobacco
Control’’. Jurist: Special Issue 2004;1274:85–95.
42 Japan Tobacco. Annual report 2005. Tokyo: Japan Tobacco, 2005;120.
http://www.jti.co.jp/JTI_E/IR/05/annual2005/annual2005_E_all.pdf
43 Reference withdrawn.
44 Mitchell H. Japan’s tobacco industry tradition in transition. Bangkok:
Lockwood, 2005. http://www.tobaccoasia.com/news.asp?id = 845(accessed 7 Mar 2005).
45 Hanai K. Blowing smoke on tobacco. Japan Times, 2004;24 May. http://
www.japantimes.co.jp/cgi-bin/makeprfy.pl5?eo20040524kh.htm (accessed
25 May 2004).
46 Matsubara H. Japan slowly pulls head out of sand on smoking ills. Japan
Times, 2003;22 Oct. http://www.japantimes.co.jp/cgi-bin/
makeprfy.pl5?nn20031022a4.htm (accessed 27 Oct 2003).
47 Japan Times. Time to get tough on tobacco. 1 Jun 1999. Philip Morris. Bates
No. 2064812282/2283. http://legacy.library.ucsf.edu/tid/tve24c00(accessed 31 May 2005).
48 Framework Convention Alliance. Of orchids, ashtrays and the human spirit.
28 Feb 2003. http://fctc.org/bulletin/Issue_45.pdf (accessed 1 Jun 2005).
49 Reference withdrawn.
50 Reference withdrawn.
51 Japan Tobacco. Press Release: JT and JTI launch legal challenge against EU
tobacco directive. Tokyo: Japan Tobacco, 2001;20 Sep. http://www.jti.com/
english/press_room/press_releases/pr_article_20_09_2001.aspx
52 Japan Tobacco. Press Release: JT and JTI disagree with European Court ofJustice decision to uphold Tobacco Products Directive. Tokyo: Japan Tobacco,2002;10 Dec. http://www.jti.co.jp/JTI_E/Release/02/r_justice.html
53 Moy P. Mild Seven ban would ruin city’s free-trade image, lawyer warns.
South China Morning Post 2005; 7 Oct.