In the face of criticism that the French government has not done enough to stem the flow of illicit tobacco into the country, French MPs and Senators have been redoubling their efforts to address the problem. In the most recent attempt, Senator Xavier Iacovelli brought together all of the debate’s various stakeholders, for the very first time in France, to discuss the issue at a conference in late November.
The conference was urgently needed: despite a significant fall in the number of smokers, France remains the number one country in Europe for the illicit trade of cigarettes. The conference’s communiqué provides some arresting figures which underline the gravity of the black market for tobacco. In France, black market tobacco counts for 25% of total consumption, with illicit trade translating into a loss of €3 billion in fiscal revenues nationally, compared to €20 billion for the European Union (EU) as a whole.
None of the diverse stakeholders present at the Senate conference were willing to contest these figures. Disagreements surfaced however when it came to discussing solutions to the problem, notably how best to implement a scheme to “track and trace” cigarettes sold.
The overwhelming prevalence of contraband cigarettes
Illicit trade includes both contraband (legitimate products upon which taxes due are not paid) and counterfeit (fraudulent imitations of legitimate products) products. All parties at the conference—even the tobacco industry representatives— agreed that 98-99% of illicit tobacco in France is contraband rather than counterfeit, meaning cigarettes manufactured by the tobacco companies themselves that have subsequently evaded the appropriate taxation.
To explain how this many licit smokes slip through the cracks, Iacovelli cited the arresting example of the parallel tobacco trade in Andorra. The tiny principality consumes 120 tonnes of tobacco per year, yet buys 850 tonnes from tobacco companies. The surplus supply, which retails for €1.20 a packet in Andorra, is carried by 8 million tourists across the border into Spain and, principally, into France, where a packet costs €8. While supplying Andorra’s duty-free shops in reasonable quantities is not in and of itself illegal, in practice it means that tobacco companies are able to get their product on the French and Spanish market without it being subject to the taxes which pad government coffers and underpin public health initiatives.
Being able to pinpoint exactly when a tobacco product leaves legal channels is key to stopping this illegal flow. One of the most robust tools for doing so, the World Health Organisation (WHO)’s Protocol to Eliminate Illicit Trade in Tobacco Products, officially entered into force on 25 September this year. Under the pact, signatory countries are required to establish “tracking and tracing” systems by 2023, enabling authorities to follow the movement of legal tobacco products from factory floor to the final consumer.
Perhaps unsurprisingly Big Tobacco — having repeatedly been shown to be involved in cigarette smuggling itself — has pushed back against the WHO Protocol and other attempts to crack down on illicit trade. The tobacco manufacturers typically argue, as one industry representative did at Iacovelli’s conference, that the root of the problem is that the average consumer perceives the price of cigarettes as too high. According to Big Tobacco, this high price, intended as an incentive to encourage people to stop smoking, naturally leads consumers to attempt to outmanoeuvre governments’ fiscal strategies. Research has generally dismissed this argument, finding that raising tobacco taxes does not necessarily impact the amount of tax evasion.
Big Tobacco muscles its way into track & trace
Despite arguing that high tobacco taxes, rather than the lack of an effective track and trace scheme, is the root of the illicit tobacco trade, the industry has simultaneously been aiming to position itself as central to the debate surrounding how best to trace tobacco products.
Having developed Codentify – its own bespoke trace and track system – Philip Morris International (PMI) has sold parts of the intellectual property behind the scheme for peanuts to a French company, Inexto. Subsequently, PMI has also led its direct tobacco industry competitors in a coordinated lobbying campaign worldwide to encourage national governments to adopt its system.
Given the industry’s record of direct and indirect involvement in the illicit trade of tobacco, it is concerning that a certain number of governments in Africa and South America have indeed purchased Codentify, the independence of which is highly contested by anti-tobacco activists and health professionals. Perhaps more surprising, however, in 2017 the European Commission itself proposed that the industry be in large part responsible for the tracking and tracing of its own products in the EU.
Many health advocates have warned that Codentify is the industry’s “Trojan horse”, and argue that the Commission’s decision has the effect of putting the fox in charge of the chicken coop. Moreover, the WHO Protocol, to which the EU is a party, takes a clear position in this regard: the tobacco industry is part of the problem of illicit trade in cigarettes, not part of the solution, and must therefore have no influence on regulation – a real thorn in the side of one of the most influential lobbies in Brussels.
An unreliable partner
It is for this reason that PMI used the French Senate conference to contest jurists’ argument that the WHO Protocol, by way of its adoption across EU Member States, supersedes existing EU law on the issue, and therein the directives of the European Commission. At the same time, the Commission has attempted to hit back at criticism of its track and trace proposals, claiming that they are fully in line with the WHO Protocol.
As these debates continue to rage, what seems clear is that the tobacco industry has shown again and again—including at Iacovelli’s conference—that it will go to extensive lengths to look after its own interests, making it a problematic partner in initiatives to collect taxes and safeguard public health.
Prompted by the example set by Senators like Xavier Iacovelli, the French government could and surely will do more to stem the illicit trade of tobacco in France. Those hoping for swifter progress, however, should also be looking to mitigate the influence Big Tobacco continues to wield over tobacco policy.
“Legal and illegal trade in tobacco products are often intertwined”
Illicit Trade News Networks has interviewed Benoît Gomis, research associate at the Global Tobacco Control Research Programme at Simon Fraser University who has recently published a study on the illicit trade in South America. From the beginning of the illegal trade seeded by British American Tobacco and Philip Morris International to the ongoing trade organised by Tabesa, Benoît Gomis gives a clear picture of how legal and illegal are intertwined as long as tobacco products are involved.
Illicit Trade News Network: You recently published a study on illicit tobacco trafficking in South America and more specifically in Paraguay. Can you go back over the figures from this study in a few words?
In the first paper, we demonstrate how the trade was originally seeded by British American Tobacco (BAT) and Philip Morris International (PMI), who from the 1960s onwards used Paraguay as a transit hub to smuggle their cigarettes to the then protected markets of Argentina and Brazil. Two developments later led to a boom in Paraguayan production: 1) the transnational tobacco companies (TTCs)’ switch from high-end to cheap smuggled brands in the late 1980s and early 1990s – products with which local manufacturers could now compete, and 2) Brazil’s introduction of a 150% export tax to end the TTC scheme – by which cigarettes were sent to Paraguay and then re-smuggled to Brazil. Based on our estimates, between 1989 and 1994, Paraguayan cigarette production was below the annual domestic consumption of three billion cigarettes. It grew to 12 billion sticks by 1998 and 27 billion by 2003 despite stagnating consumption.
In the second paper, we document how Tabacalera del Este (most commonly known as Tabesa) capitalized on the conditions created by BAT and PMI and a permitting regulatory environment. Created in 1994, Tabesa is now one of Paraguay’s largest companies. It was founded and is still owned by Horacio Cartes who was President of Paraguay between 2013 and 2018. Based on data on the company’s imports of cigarette components, we estimate that Tabesa imports enough to produce 25-36 billion cigarette sticks per year. Given domestic consumption and legal export figures, this means that between 19-30 billion cigarettes produced by Tabesa annually end up on the illicit market. An estimated 70% of that is smuggled to Brazil, and our research finds that Tabesa has been exploring other international markets.
Tabesa executives notably told Paraguayan journalists that the company legally exports to a number of countries, including Bulgaria, Curaćao, the Netherlands Antilles and the Netherlands. However, our analysis of UN Comtrade data shows significant discrepancies, suggesting illicit trade. For instance, between 2001 and 2016, there were no cigarette exports reported by Paraguay to Bulgaria, nor any cigarette imports reported by Bulgaria from Paraguay. In that same period, Paraguay reported exports of 1.4 billion cigarettes to Curaçao, 481.2 million cigarettes to the Netherlands Antilles, and 111.4 million cigarettes to the Netherlands, yet none of those countries reported any cigarette imports from Paraguay. In total, between 2001 and 2016, 5.7 billion cigarettes officially shipped by Paraguay to 10 markets where Tabesa exported to were unaccounted for.
What are the major findings of your study on the modus operandi of tobacco trafficking?
Our findings suggest that the legal and illegal trade in tobacco products are often intertwined. BAT, PMI, and Tabesa have all had legal sales and legal exports, and yet have also used the illicit trade – in particular through free trade zones (FTZs) and other areas of weak governance – to enter new markets and increase their revenue. We also argue that Tabesa has used its legal exports to the US as a defence against smuggling accusations. More broadly, these papers – and other research we have conducted – suggest that the illicit tobacco trade is changing its nature. There are still signs of TTC complicity in the illicit trade, but other non-TTC actors are increasingly involved as well. Meanwhile, TTCs are attempting to recast themselves as responsible partners to governments by providing intelligence, training, equipment, financial resources and even influencing budget decisions in various countries across Latin America, while also commissioning and funding studies on the illicit trade and framing the issue in the media. It is of course in their interest to do so. Through these activities, TTCs aim to undermine competitors and fight against tobacco control measures that have been effective in reducing smoking rates (e.g. higher taxes, plain packaging).
In your study, you mention tactics allegedly used by Tabesa, PMI and BAT tactics in terms of illicit tobacco trafficking. What are these tactics?
These include: 1) creating new brands, manufacturing them domestically, exporting them illegally, using the revenue to reinvest in product development and production facilities to produce more cigarettes to a higher standard and thus compete for new markets overseas; 2) using free trade zones as transit hubs for smuggling; and 3) selling to a large number of domestic distributors and later arguing that subsequent illicit exports are not their responsibility.
What measures could countries plagued by illicit tobacco trafficking take at the national level?
The first measure is to tackle industry interference with policy making. TTCs are attempting to circumvent international guidelines to reclaim influence in tobacco control by supporting governments to tackle the illicit tobacco trade. But as the WHO warns, “There is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests.”
Second, governments would do well to increase resources dedicated to relevant law enforcement and customs departments – including adequate training independent of the tobacco industry.
Third, more data should be collected and analyzed independently of the tobacco industry. Very often there is much we do not know about the illicit tobacco trade in any said country, meaning that policy responses often rely on potentially misleading seizure figures and industry-funded data.
More broadly speaking, the more fundamental issues of weak governance, institutional capacity, political will, transparency, accountability, and corruption need to be tackled for any substantial progress to be made.
What measures could be taken at the international level and in terms of traceability?
Governments should fully implement the WHO Framework Convention on Tobacco Control and its Protocol to Eliminate Illicit Trade in Tobacco Products.
Our research played an important role in the Paraguayan government’s decision to sign the Protocol, a step in the right direction. The Protocol features a number of useful action points, including Article 10.1.b which notes that Parties shall “take the necessary measures” so that companies “[supply] tobacco products or manufacturing equipment in amounts commensurate with the demand for such products within the intended market of retail sale or use”.
Article 8 on Tracking and Tracing is perhaps the most central one, however. It notes that “the Parties agree to establish within five years of entry into force of this Protocol a global tracking and tracing regime”. Under the traceability system of the Protocol, detailed information on the entirety of the tobacco supply chain is for instance required, including “the name, invoice, order number and payment records of the first customer not affiliated to the manufacturer”, “the intended market of retail sale”, “any warehousing and shipping”, “the identity of any known subsequent purchaser”, and “the intended shipment route, the shipment date, shipment destination, point of departure and consignee” (Article 8.4.1). This system is intended to “further [secure] the supply chain and to assist in the investigation of illicit trade in tobacco products”. However, it is currently at risk of being controlled by the tobacco industry. Further research on this development and caution from governments are required to ensure that the track and trace measures put in place across the world effectively mitigate the illicit tobacco trade, rather than promote the commercial interests of TTCs at the expense of public health and good governance.
Why the EU’s tobacco track and trace system fails to live up to WHO requirements
The European Union is set to implement a system to track and trace tobacco products all along the supply chain this May, in line with the Tobacco Products Directive it passed in 2014. According to EU officials, the scheme meets a mandate from the WHO Framework Convention on Tobacco Control (FCTC) Protocol to Eliminate Illicit Trade in Tobacco Products, to which the EU is a party.
Track and trace systems have the potential to be vital tools in the fight against the illicit tobacco trade. Under-the-table smokes are “the commodity of choice” for organised crime groups, deprive governments of badly-needed tax revenue, and undermine public health initiatives by making tobacco products available at cheap prices, most importantly to highly price-sensitive groups such as young people.
The EU is by no means immune to the parallel trade in tobacco products, which costs the bloc’s governments an estimated €10 to 20 billion a year; illicit smokes make up roughly 10% of European consumption. What’s more, in some areas of the Union, the situation is getting worse. Tobacco smuggling across the Lithuanian-Belarusian border nearly doubled in 2018, and there are grave concerns a no-deal Brexit could lead to rampant illicit trade across the Irish border.
Against this backdrop, the May rollout of the EU’s track-and-trace scheme is welcome news. Unfortunately, the system the European bloc is planning to implement has already drawn substantial criticism from MEPs and public health bodies, who argue that the scheme is not independent from the tobacco industry. The WHO Protocol specifies any track-and-trace system must be clearly separate from the tobacco sector’s influence; tobacco manufacturers’ long history of obstructionism and complicity in the smuggling of their own products indicate that they simply can’t be trusted. As recently as 2014, British American Tobacco (BAT) was fined in the UK for deliberately oversupplying overseas markets which it knew would make it into the hands of smugglers.
These various concerns underpinned Romanian MEP Cristian-Silviu Busoi’s January seminar on how to stamp out the parallel tobacco trade. Another, similar, debate will be held on Wednesday, February 27th, helmed by MEP Younous Omarjee. Both Busoi and Omarjee are suggesting that the Tobacco Products Directive may need to be modified in order to ensure the EU’s track-and-trace scheme is made compliant with the WHO Protocol, a higher legal norm, and does not unduly entrust responsibilities to the tobacco industry.
As Omarjee’s stated in a press release, the MEP “wants to understand why the European Commission is going out of its way to entrust the fight against the parallel trade in tobacco, fed by cigarette manufacturers, to the tobacco lobby and people close to it.”
The WHO’s approach
NGOs present at the January seminar, from the European Network for Smoking Prevention to the European Cancer League (represented by prominent anti-tobacco activist Luk Joossens), agreed that among the many key changes to the Directive would include making sure that data storage providers are not selected and paid by tobacco manufacturers. The International Tax Stamp Association (ITSA), which has challenged the EU system before the European Court of Justice on the grounds that it is in breach of the WHO Protocol, agreed that, among other things, any track and trace system should be placed under the protocol signatories’ direct control. Against the backdrop of this plethora of concerns, the European Commission representative at Busoi’s conference noted that the EU system is up for review in 2021.
Our exclusive new infographic illustrates the shortcomings of the EU track & trace system. Leaving aside the security features aspect of the system, which is controversial in and of itself, the infographic highlighting its numerous discrepancies with the scheme provided for by the WHO Protocol.
The WHO calls for a logical, linear process in which it defines a set of requirements for the Protocol’s parties to enforce. A public, open and competitive tender by the parties to the Protocol is supposed to select the best service providers, entirely independent from the tobacco industry, which then take on the key missions of “track and trace”: generating unique identifier codes, printing or affixing these codes to tobacco products, verifying on the production line that the codes are linked to the right products and providing governments with a database and related alert system. Public authorities, including customs, police forces and the judiciary, then have the means to control tobacco products all along the supply chain and convict those responsible for illicit trade.
Europe’s problematic alternative
In contrast, the European system is highly convoluted. Member states only carry out tenders for the service providers charged with generating the codes, while the European Commission oversees the selection of database providers. Most problematically, the EU scheme requires the tobacco manufacturers to both affix and verify the codes in their factories—two of the most essential steps of tracking and tracing tobacco products. The industry also has a hand in selecting and remunerating both the data storage providers and the auditors intended to oversee the system.
Under this scheme, unlike that outlined by the WHO, separate databases are required, while tobacco manufacturers each select their own preferred partners for data storage, which transfers its data to the secondary repository for public authorities. The involvement of the tobacco industry and its network of preferred suppliers in three of the four core missions in the EU proposal understandably raise serious doubts about whether the data generated by the system will truly be objective, and whether its use by judicial authorities will be efficient in tackling the illicit tobacco trade.
EU Health Commissioner Vytenis Andriukaitis has underlined that tobacco consumption is the single biggest cause of avoidable death in the EU, and expressed his hope that the implementation of track and trace would help Brussels crack down on the illicit trade which furthers it. Unfortunately, as it stands, the EU proposal falls short of what’s needed to effectively regulate the sector —and fails to fulfil the bloc’s obligations under the WHO Protocol.
More than 150 people die after drinking toxic bootleg alcohol in north-east India
Toxic homemade alcohol has caused the deaths of at least 150 people and made over 200 more seriously ill in the north-east Indian state of Assam.
Police in the region today announced an increase in the death toll, which has been rising steadily since news of the moonshine poisonings were first reported late last week.
Investigators said they have arrested dozens of people in connection with the production of the deadly brew.
Homemade alcohol is said to be widely consumed by low-paid labourers in the region, many of whom spend their days carrying hard physical work on tea estates.
Two excise inspectors have been suspended on suspicion of failing to take adequate steps to prevent the sale of bootleg liquor, police said.
On Friday, health officials said they were receiving new reports of people falling ill after consuming the homemade alcohol every 10 minutes, resulting in hospitals having to bus in doctors and other medical staff from neighbouring regions to help deal with the high number of causalities.
People are reported to have started falling ill after consuming the rogue batch of liquor on Thursday.
Local officials, who have warned that the death toll could continue to rise, have ordered an inquiry into the deaths.
Police said they suspect the illegally-brewed alcohol was produced locally, and that while they had not yet determined its composition, those who have died or been made ill had contracted “methyl alcohol poisoning”.
Bootleg alcohol is routinely consumed by poor manual workers throughout rural India, where moonshine makers often add methanol to their illicit liquor in a bid to boost its strength.
Low-income workers are said to turn to moonshine alcohol due to the prohibitively high price of liquor sold by government-controlled stores.
In a statement posted on his Facebook page, Congress Party President Rahul Gandhi offered his condolences to those affected by the poisoning incident, writing: “I am saddened by the incident which occurred in Assam’s Golaghat area.
“My deepest condolences to the families of the victims. I hope that those undergoing treatment get well soon.”
News of the poisonings comes just two weeks after it was reported that scores of people had died after consuming methanol-laced alcohol in the north of India.
Over 100 people lost their lives after consuming the poisonous moonshine in Uttar Pradesh and Uttarakhand.
Investigators said they believed the alcohol was first consumed at a funeral in Haridwar, where 36 people lost their lives.
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9 February 2018
9 February 2018
8 February 2018
28 November 2017
28 November 2017
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