Blog series, Part II. Written by Lucía Berro Pizzarossa - University of Groningen 

Summary: this Blog post series focuses on the protection of prenatal health and proposes to use a human rights-based approach to discuss the different ways the topic has been framed, the available evidence and the human rights implications of some of the existing policies on the topic. In terms of health outcomes the existing research is very clear: a wide-range of adverse tobacco-related and long-term health outcomes take root during prenatal and postnatal periods. So undoubtedly this poses a global health challenge, but how do we provide a human-rights based response?

This blogpost series arises from our preliminary systematic literature review on the topic and aims to discuss two critical questions that we encountered. The first relates to the over focus on pregnant women as the target of the policies on this topic. And the second— very closely related—reflects on the need to forego strategies that solely address this challenge as an individual/attitudinal one. The aim of the blogposts is to extend an invitation to scholars, advocates and policy makers to think together about the potential of evidence and human rights-based laws to tackle this challenge.

This research was made possible by the Dutch Cancer Society (KWF).

Background

In our previous blogpost we problematized the focus of the existing policies on women’s conduct during pregnancy. The approaches and policies discussed in our previous blog seem to be constructing the problem of prenatal harm as one of individual behavior, rather than recognizing the systemic nature of the problem. We highlighted there how this over focus clashes with a HRBA and does not respond to the available evidence in the field. We concluded that the current response is limited by its myopic understanding of this global health challenge as one of individual/attitudinal nature.

Following up on that point we now shift the focus to the tobacco industry as a key responsible actor in the field.

Using the HRBA to identify and target the key actor in the field: the tobacco industry

The HRBA necessitates that we map the power relations influencing the given situation. The influence and power of the tobacco industry is well documented. Certainly then, if the stake at play is the protection of women’s and children’s health and the HRBA requires us to think more systemically about who are the duty bearers, the problem will necessarily requires us to engage with the regulation of the tobacco industry and in particular the targeting of women and youth https://sickofsmoking.nl/en/feiten/replacement-smokers/(“replacement smokers” as the tobacco industry calls them).

Let’s explore this!

 The tobacco industry and human rights

Private actors—such as tobacco companies—are not signatories of human rights treaties. But this doesn’t mean that they have no responsibilities towards the realization of human rights. Indeed, scholars note that the unprecedented expansion of power and influence of TNCs over the past three decades has accelerated global trade and development, but also environmental damage and abuses of human rights in factories and corporate agriculture. The HRBA has two crucial components that need to be taken into account when discussing the relationship between the enjoyment of human rights and the role of this industry.

Firstly, tobacco companies, even though they are not signatories to the human rights treaties, carry responsibilities to ‘respect’ human rights. The UN Guiding Principles on Business and Human Rights sometimes referred to as “the Ruggie Framework”, were commissioned to the UN Special Representative for human rights in relation to transnational corporations and other business enterprises. He was tasked with clarifying the roles and responsibilities of states, companies, and other social actors in this contentious sphere of business activity. The framework rests on three pillars—Protect, Respect and Remedy—and was unanimously endorsed by the UN Human Rights Council. In simple terms, the responsibility to respect requires that human rights and their underlying values are not brought any harm. It also requires business not to undermine states’ efforts to realize human rights.

Secondly, states have the legally binding obligation to respect, protect and fulfil human rights. Among others, this entails the obligation to protect against human rights abuses by third parties, including business and positive duties to regulate and to oversee the actions of non-state actors, and to ensure access to necessary services, including education and health.

And these obligations (for states) and responsibilities (for the tobacco companies) are particularly relevant given (a) the companies are producing, marketing and selling a product that is deadly by design and (b) the fact that the industry’s history of targeting disadvantaged populations, such as women, people living in poverty and the LGBT community. Thus, an HRBA entails building any intervention in human rights such as right to life and right to health but also right to be free from discrimination.

Another important component is the WHO Framework Convention on Tobacco Control (FCTC). This is the first treaty negotiated under the auspices of the World Health Organization. The WHO FCTC is an evidence-based treaty that reaffirms the right of all people to the highest standard of health. The provisions in the WHO FCTC include a series of measures that states ought to take in order to address this global health challenge: price and tax measures and non-price measures, namely: protection from exposure to tobacco smoke, packaging and labelling of tobacco products, tobacco advertising, promotion and sponsorship, among other. Furthermore, Article 5.3, which requires states to protect public health policy-making from interference by the tobacco industry.

The targeted marketing strategies of the tobacco industry

The industry’s attempts to conceal the harmful effects of tobacco smoking, the deliberate manipulation of nicotine content and the toxicity of tobacco products were made public in the end of the twentieth century. In response, countries in North America and Europe have ramped up their regulation. Although tobacco consumption still poses a major public health threat in these regions, the tobacco industry’s response to increased regulation in developed countries has been to shift its focus to poorer regions in the world – to unexplored markets in Africa, Asia, Eastern Europe and Latin America (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1738349). This strategy has had devastating effects. The burden of the tobacco pandemic is not fairly distributed – tobacco consumption rates are much higher among poor communities both within and among states. According to the World Health Organization (WHO), “it is the poorer and the poorest who tend to smoke the most. Globally, 84% of smokers live in developing and transitional economy countries”.

Furthermore, female smoking is predicted to double by 2025. While global male smoking rates have peaked and are on the decline, women's rates are still rising. The growing “feminization” of tobacco use in the region is a major concern since tobacco consumption generates several negative health effects. For example lung cancer has duplicated among women since 1980 at an annual rate of 1.7% as a consequence of tobacco consumption. One of the factors contributing to this phenomenon is the fact that since the 1920s the tobacco industry has devised marketing campaigns particularly targeting women. Authors have recently shown how Philip Morris International and British American Tobacco’s campaign for International Women’s Day is the latest example of how tobacco industry marketing has sought to use emerging cultural contexts and reference points to build positive associations with smoking as a feminist act.

However, while the literature speaks of a very limited response of the tobacco control community in applying gender and diversity-based analyses to tobacco control, the tobacco industry has developed a comprehensive gendered approach. Women and girls in many countries represent an ‘untapped market’ and have become a prime target of the tobacco industry. While the tobacco industry continues to specifically target women as a group, we are still lagging behind in adopting what the WHO FTCC calls gender-specific tobacco control strategies.

The situation appears even more dire when we cross the different factors: gender, socio-economic status, race and more. In high-income countries where female smoking is declining, it is increasingly concentrated among disadvantaged women. These discernible social differences among women who smoke and women who do not are further accentuated in pregnancy and postpartum. Minority populations display significantly lower rates of successful cessation compared to majority populations, despite greater intention to quit than majority groups. Women living on a low income are also more likely to relapse during the postpartum period. It is very clear that the marketing strategies implemented by the tobacco industry demonstrate a conscious targeting of disadvantaged communities. As such, a HRBA would require that interventions are very cognizant of the ways in which race, class, educational level and other facts impact tobacco smoking, cessation efforts and access to healthcare more generally.

Next steps?

Adopting an HRBA allows us to understand that measures to protect prenatal life cannot be circumscribed to treating the problem as an individual issue. As such, the interventions designed to tackle this should go way beyond thinking of smoking as a lifestyle choice and targeting pregnant women. If we were to ask the questions proposed by the HRBA undoubtedly the measures to be taken would revolve around the conduct of the tobacco industry. Why is it happening and who has the obligation to do something about it? — the HRBA asks. As we saw above, this challenge is posed—at least partially—because the tobacco industry produces and markets a deadly-by-design product and continues to device marketing campaigns targeting disadvantaged populations.

It is important to bear in mind that the human rights at stake are not only the right to health and the right to life but also the right to education, to dignity, to be free from discrimination and the right to information, and, to some extent, consumer protection rights. The following are a series of measures in line with an HRBA that shift the focus from individual to systemic responsibility.

For example, states could start by adopting comprehensive legislation on tobacco control. Over 80% of the world’s population live in countries without comprehensive smoke-free laws, and global compliance with other MPOWER policies is smaller still. Literature shows that smoke-free laws are generally well supported by the public and appear highly cost-effective. These measures would contribute by decreasing smoking but also by raising awareness of the health impact of tobacco smoking and changing the narrative counteracting the aggressive marketing strategies of the tobacco industry.

Furthermore, building on the WHO FCTC, tobacco tax increase is also an important element in a tobacco endgame strategy and tobacco taxes are considered the most effective measure to reduce tobacco use.

Moreover, it is very clear that the tobacco industry has been very intentional on their marketing strategies and that this poses a clear need for stricter regulation. In 2016, cigarette and smokeless tobacco companies spent $9.5 billion on advertising and promotional expenses in the United States alone. The meticulous study of consumption patterns of certain populations—women, black people, the LGBT community—and the increased subtlety and sophistication of the targeted marketing are very well documented. Therefore, controlling the ability of the tobacco industry to spread favorable ideas about tobacco use is the essence of tobacco control efforts to regulate marketing. As defined by the WHO Framework Convention on Tobacco Control (FCTC), a ‘comprehensive’ ban pertains to direct advertising (broadcast and print media, billboards/outdoor and point of sale), as well as indirect advertising, including distribution of free tobacco products (sampling), promotional discounts, non-tobacco products identified with tobacco brand names (brand stretching), tobacco products identified with non-tobacco brand names (brand sharing), industry-sponsored events and the appearance of tobacco products in television or films. Of crucial importance is to specifically regulate the industry's systematic targeting of population subgroups. However, as of 2011 only 6% of the world's population benefited from a ‘comprehensive’ ban on tobacco marketing.

It is also important to be warned about the tobacco industry’s history of co-opting human rights language. Cabrera shows how It is almost a recurring pattern that when countries decide to regulate and implement efficient tobacco control policies, i.e., when they decide to fulfill their obligations under international human rights law (e.g., right to health, right to life) vis-á -vis tobacco control, the tobacco industry challenges such policies. Knowing and using a HRBA can enable us to hold our ground and advocate for stronger evidence and human-rights based interventions.

These measures are not meant to be exhaustive but rather an invitation to think differently about this pervasive global health challenge. Human rights law is one of the most powerful legal tools that can be used both nationally and internationally.  Let’s harness its potential!