Article 5.3 says, very simply...
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.
Fair enough, perhaps, but ASH is not content with keeping the tobacco industry away from 'public health policies', it wants the government to have nothing to do with them even when local authorities and the industry have mutual interests, such as tackling counterfeit tobacco. And so they have gone around the local councils and got them to sign up to an agreement that includes a promise to...
Protect our tobacco control work from the commercial and vested interests of the tobacco industry by not accepting any partnerships, payments, gifts and services, monetary or in kind or research funding offered by the tobacco industry to officials or employees
This is Article 5.3 on steroids. Does it matter? Well, yes, it matters quite a bit because the tobacco industry has traditionally given local authorities rather a lot of financial support to tackle illicit tobacco, but because of ASH's ideological intransigence that money is now coming from taxpayers. As Phibbs says...
What is the practical relevance of such a gesture? Most significantly, it is preventing the industry from working with signatory councils (trading standards) on the issue of the illegal trade in tobacco products, which cost the Exchequer £2.1 billion in 2014 alone, imposed significant costs on retailers as a result of lost sales, and brought organised criminal gangs into local communities.Several local authorities have rejected funding for sniffer dogs from tobacco manufacturers, which are used to locate illegal products. They have decided to fund this activity themselves and are redirecting funds from the public health budget in order to do so.
Okay, in this instance the money is coming from the public health budget so it probably would have been wasted anyway, but ASH's little treaty is also hindering the fight against tobacco smuggling...
There have been examples where the trading standards officers, believing that LGDTC stops them from dealing with the industry, have refused to work with the industry on counterfeit tobacco – this includes refusing local, on-the-ground, intelligence.
And it is not just illicit tobacco. Money is also been turned away to deal with littering...
Due to LGDTC, councils and the Keep Britain Tidy campaign will no longer work with the tobacco industry on anti-litter measures or campaigns such as making bins smoker friendly.
This is lunacy. If the industry wants to pay for these services, taxpayers should be thankful. Aside for tobacco smugglers, who benefits from councils rejecting contributions towards sniffer dogs? Where is the conflict of interest? When it comes to counterfeit tobacco, the only conflict is between the tobacco industry, who would like to see less of it, and the anti-smoking fanatics who want to pretend it doesn't exist.
Local councils have been sold a bill of goods by ASH about what they can and cannot do. I've been reading a document entitled 'Guidance for Trading Standards on engaging with the tobacco industry' which is endorsed by ASH and Public Health England. ASH has its own list of tips entitled 'Developing Policy on Contact with the Tobacco Industry'. Both of them offer highly misleading advice to local authorities based on a misrepresentation of Article 5.3. The first of them says:
This document articulates the legal obligations placed on public authorities by the Treaty and illustrates established best practice for those working in the sector.
The 'Treaty' has never been enshrined in law in Britain or the EU, so this is wibble from the outset. There are no 'legal obligations'. From a legal perspective, the FCTC is nothing more than a bunch of aspirations, but even if Article 5.3 was the law, it clearly refers to health policy, not trade policy, smuggling or waste disposal.
None of this stops ASH from making thinly veiled threats like this...
[Article 5.3] could be relied upon in legal proceedings brought by an individual or other non-state body against a public authority. An authority that does not act in compliance with the convention may be exposed to risk of judicial review. If a local authority decides to diverge from the guidelines it is suggested the reasons for doing so should be documented.
This is intimidation, plain and simple. It raises the spectre of lawsuits (that will never been filed) to coerce councils into taking an extreme position to suit ASH's comic book worldview.
The document goes on to say that local authorities should only deal with the industry if they need written confirmation that a counterfeit product is indeed counterfeit. If offers of money and support are made, the councils are told to run a mile. In a section about what to do if the industry 'approaches your local authority with offers to support to tackle illicit tobacco', the guidance reads:
Decline the offer citing conflict with the guidelines on the implementation of Article 5.3 and the Local Government Declaration if your local authority has signed it
The Local Government Declaration obviously has no legal standing, and nor do the guidelines about how Article 5.3 should be implemented which, being guidelines, are even less binding than Article 5.3 itself.
The document even makes this paranoid plea:
Let public health colleagues know about any approaches from the tobacco industry
Needless to say, all of this goes far beyond anything in Article 5.3, but with the bogus threat of legal action hovering over their heads, it is little wonder that local authorities have chosen to unnecessarily milk the taxpayer for bills that have traditionally been paid by industry. The result is worse local services where other budgets are depleted and a less effective response to organised crime.
Taxpayers are not only being forced to pay for ASH, they are being forced to pay for their collateral damage.