Tob Control: first published as 10.1136/tobaccocontrol-2019-055251 on 17 December 2019. Downloaded from Original research Tobacco industry access to policy elites and the implementation of Article 5.3 of the WHO Framework Convention on Tobacco Control Marc C Willemsen ,1,2 Gary Fooks3 1Health Promotion, Maastricht ABSTRact acted on by governments.4 5 Article 5.3 is broadly University CAPHRI School for Introduction Article 5.3 WHO Framework Convention defined and does not specify the steps govern- Public Health and Primary Care, ments should take to protect health policy from Maastricht, The Netherlands on Tobacco Control (FCTC) aims to prevent tobacco 2Tobacco Control, Trimbos- industry interference with public health policy. The industry interference. Research into how Article instituut, Utrecht, The degree of protection depends on several factors: 5.3 has been operationalised suggests that imple- 6 Netherlands mentation of the Guidelines is highly selective, 3 the interpretation of Article 5.3 by governments; the School for Languages and presence of codes of practice; and the effectiveness which creates administrative space for continuing Social Science, Aston University, 5 7 Birmingham, UK of industry lobbying versus public health advocacy. opportunities for tobacco industry interference. We examine these factors with reference to the Dutch This study seeks to build on these previous analyses Correspondence to government’s interpretation of Article 5.3. of Article 5.3 compliance. Specifically, the study Professor Marc C Willemsen, Methods We searched the Dutch Tobacco Industry aims to: (A) examine how the Dutch government Health Promotion, Maastricht Special Collection, part of the Truth Tobacco Industry has interpreted Article 5.3 in response to industry University CAPHRI School for Documents archive, containing more than 1100 Dutch lobbying and public health advocacy; (B) build on Public Health and Primary Care, Maastricht 6200MD, government documents. the existing literature by examining in depth the Netherlands; Results Between 2007 and 2012, under consistent thinking behind and political context to govern- marc. willemsen@ pressure from the industry, an initial strict view of Article ments’ interpretation of Article 5.3. maastrichtuniversity. nl 5.3 gave way to increased contact with the industry. The Dutch context offers an important case Received 28 June 2019 The industry tried to shift the governance of tobacco study for several reasons. First, because of its Revised 29 October 2019 policy back to the Ministry of Economic Affairs. Around strong corporatist tradition, where the governance Accepted 1 November 2019 2010, Dutch public health advocates began to use Article of social and economic policy is characterised by copyright. Published Online First 5.3. Efforts included naming and shaming government incorporating all organised interests, including 17 December 2019 contact with the industry, parliamentary questions about the business community, in the formation and industry–government contact, a report outlining how implementation of policy.8 9 The Netherlands thus Article 5.3 should be observed and, most importantly, a provides a basis for exploring how policy actors court case. In response to this, the government produced reconcile international obligations that seek to a formal code of practice, which was used to prevent exclude economic actors from policy development industry involvement in the development of a new with institutional norms otherwise favouring inclu- National Prevention Accord. sion. Historically, Dutch corporatism in the domain http://tobaccocontrol.bmj.com/ Discussion The Dutch government’s initial decision of tobacco control policy has been exemplified by not to codify Article 5.3 created an administrative biannual in- person meetings between the Minister environment in which health ministers’ interpretation of of Economic Affairs, the Minister of Health, senior Article 5.3 was able to shift according to their political civil servants and senior representatives of the beliefs. The findings support the recommendation that tobacco industry (formally described as ‘ministerial Parties to the FCTC take a strict approach and formally meetings’) until 1996.10 codify Article 5.3 to ensure effective implementation. Second, like many other countries, the Nether- lands initially eschewed codification of Article 5.3 and its Guidelines: its early Party reports to the COP noted that ‘no official legislation or actions INTRODUCTION are taken to implement the guideline on art. 5.3, on September 26, 2021 by guest. Protected Article 5.3 of the WHO Framework Conven- nevertheless we try to act within the spirit of the tion on Tobacco Control (FCTC) calls on Parties guidelines.’11 Previous research has highlighted the to protect tobacco policy from ‘commercial and risks inherent in non- codified general commitments other vested interests of the tobacco industry’.1 In which arise when there is a change of govern- 2008, the Conference of the Parties (COP) to the ment.5 6 Examining industry political activity and FCTC adopted guidelines for the implementation responses by the government in the Netherlands of the Article (hereafter the Guidelines).2 These illustrates how industry actors seek to navigate © Author(s) (or their focus on reducing the industry’s status as polit- shifting political landscapes where government–in- 3 employer(s)) 2020. No ical ‘insiders’ and, among other things, advocate dustry relationships are not governed by formal commercial re- use. See rights that governments limit interactions with tobacco codes of practice. and permissions. Published industry actors, conduct interactions transparently Third, the Netherlands was one of the five ‘key by BMJ. and refrain from accepting industry assistance in facilitating countries’, next to Brazil, Ecuador, Palau To cite: Willemsen MC, developing tobacco control policy. and Thailand, which volunteered to be members Fooks G. Tob Control In practice, the degree of protection provided of the Working Group on Article 5.3, responsible 2020;29:e50–e55. by Article 5.3 will depend on how the Article is for drafting of the Guidelines for the third session e50 Willemsen MC, Fooks G. Tob Control 2020;29:e50–e55. doi:10.1136/tobaccocontrol-2019-055251 Tob Control: first published as 10.1136/tobaccocontrol-2019-055251 on 17 December 2019. Downloaded from Original research of the FCTC Conference of the Parties (COP3) in Durban in [was] a substantial need’.22 Hoogervorst took the advice and 2008.12 The Netherlands also provided the chair of the Working informed the industry that ‘no regular tobacco control policy Group. meetings will take place’.23 Stichting Sigaretten Industrie (SSI): Dutch Cigarette Manufac- turers Association reopened the issue in December 2004, sharing METHODS its wish with a new senior civil servant to have ‘tentative meet- Our analysis is primarily based on government documents in the ings on a quarterly basis’ with the minister.24 The request was Truth Tobacco Industry Documents archive, which contains more discussed with Minister Hoogervorst, who was not receptive to than 1100 Dutch government documents obtained through two the idea. However, in his reply to the SSI, the civil servant noted Freedom of Information Act requests in 2000 and 2011.13 We that ‘it speaks for itself that lower level meetings between the searched the entire archive using a snowball strategy. We initially ministry and the industry can take place when there are issues used broad Dutch search terms such as ‘Artikel 5.3’ (Article 5.3), that concern the industry directly, such as modification of ciga- and then more specific terms identified from retrieved docu- rette packaging’.25 ments. The documents were provided with additional context by In a January 2006 letter to Hoogervorst, SSI and Vereni- consulting secondary data sources (eg, government documents ging Nederlandse Kerftabakindustrie (VNK): Dutch Fine Cut and news articles) and a review of verbatim records of plenary Tobacco Industry Association offered to make a ‘constructive sessions of COP3 and Article 5.3 committee reports. All textual contribution’ to tobacco control policy, proposing dialogue and data were organised chronologically and inductively coded 14 cooperation regarding the development of future regulation applying the techniques of thematic analysis. regarding tobacco products and tobacco use.26 Hoogervorst declined, restating his opposition to regular meetings and collab- RESULTS oration on tobacco control policy, noting the outcome of the Minister Hoogervorst: first reference to Article 5.3 earlier consultation by way of support.27 In addition, he referred On the day the WHO FCTC opened for signature (16 June to the FCTC for the first time, which had been ratified by the 2003), the Dutch employer organisation VNO- NCW (Confed- Dutch government the year before, noting that ‘the FCTC offers eration of Netherlands Industry and Employers) sent a letter on no starting point for the kind of collaboration between tobacco behalf of the Dutch tobacco manufacturers to Hans Hooger- industry and government you are proposing’ and that while it vorst, the newly appointed health minister and member of the did ‘not rule out consultation and contact between the govern- liberal-conservative People’s Party for Freedom and Democracy ment and the tobacco industry’, it limited interactions to ‘issues (Volkspartij voor Vrijheid en Democratie; VVD).15 16 VNO- of implementation’, such as ‘transitional periods regarding