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Smoking Cessation and the Right to Health Benjamin Mason Meier

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Smoking Cessation and the Right to Health Benjamin Mason Meier Yale Journal of Health Policy, Law, and Ethics Volume 5 Article 3 Issue 1 Yale Journal of Health Policy, Law, and Ethics 2005 Breathing Life into the Framework Convention on Tobacco Control: Smoking Cessation and the Right to Health Benjamin Mason Meier Follow this and additional works at: https://digitalcommons.law.yale.edu/yjhple Part of the Health Law and Policy Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Benjamin M. Meier, Breathing Life into the Framework Convention on Tobacco Control: Smoking Cessation and the Right to Health, 5 Yale J. Health Pol'y L. & Ethics (2005). Available at: https://digitalcommons.law.yale.edu/yjhple/vol5/iss1/3 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Health Policy, Law, and Ethics by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. Meier: Breathing Life into the Framework Convention on Tobacco Control Breathing Life into the Framework Convention on Tobacco Control: Smoking Cessation and the Right to Health Benjamin Mason Meier, J.D., LL.M.* The harms of smoking are global in scope, and states must act multilaterally to repel this global threat to public health. Embodying this cooperative spirit, the member states of the World Health Organization (WHO) have banded together to challenge tobacco through international law. While successful in its execution, this international effort to control smoking neglects cessation interventions, thereby offering little salvation to those whose health is at greatest risk-those already addicted to tobacco. Addressing these forgotten victims requires a new paradigm for tobacco control: the human right to health. The WHO's Framework Convention on Tobacco Control (FCTC) has created general principles of cognitive and normative consensus for international public health, challenging the globalization of smoking through the globalization of tobacco control.2 Based upon a * American Legacy Foundation Fellow, Columbia University. This Article is dedicated to the memory of Dean Lee Teitelbaum (1941-2004), whose struggle with tobacco robbed us of his legal vision. This research was made possible by a grant from the American Legacy Foundation. Its contents are solely the responsibility of the author and do not necessarily represent the official views of the American Legacy Foundation. The author wishes to thank Professors Donna Shelley and Ronald Bayer and the staffs of Columbia University's Center for Applied Public Health and the World Health Organization's Tobacco Free Initiative for their thoughtful comments on previous drafts of this Article. 1. WHO Framework Convention on Tobacco Control, WHA Res. 56.1, World Health Assembly, 56th Ass., 4th plen. mtg, Agenda Item 13, Annex, WHO Doc. A56.VR/4 (May 21, 2003), http://www.who.int/tobacco/fctc/text/en/fctc-en.pdf [hereinafter FCTC]. 2. See David P. Fidler, InternationalLaw and Global Public Health, 48 U. KAN. L. REV. 1, 2 (1999) (noting a "globalization of public health" to oppose harms to health resulting from economic globalization); Derek Yach & Douglas Bettcher, Globalisation of Tobacco Industry Influence and New Global Responses, 9 TOBACCO CONTROL 206, 206 (2000) (describing the "globalisation of public health," through which "a risk culture is emerging with the realisation that many problems are global, and that states cannot deal with these problems on their own"). Published by Yale Law School Legal Scholarship Repository, 2005 1 Yale Journal of Health Policy, Law, and Ethics, Vol. 5 [2005], Iss. 1, Art. 3 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:I1 (2005) "convention/protocol approach" to treatymaking, the member states of the WHO intend the broad obligations of the FCTC to be supplemented by several individualized protocols, which, once ratified, will develop specific obligations for the respective aspects of tobacco control addressed by the FCTC.3 By first gaining the support of states for the minimal commitments of the framework convention, the drafters of the FCTC have assured that the Conference of the Parties for the FCTC will engage in a continuing dialogue on the specifics of international tobacco control as protocols are introduced, negotiated, and ratified.4 Despite this successful, albeit incremental, multilateral approach to tobacco control, neither the FCTC nor any currently proposed protocol adequately addresses the subject of smoking cessation.' While emphasizing measures that indirectly reduce the demand for 3. Intergovernmental Negotiating Body on the WHO Framework Convention on Tobacco Control, Future Protocols: Note by the Secretariat, WHO Doc. A/FCTC/INB6/ INF.DOC./2 (Jan. 18, 2003) [hereinafter Intergovernmental Negotiating Body] (noting that "the negotiation of a framework convention is not a complete process, but the beginning of one that will include the formulation of one or more protocols"); DANIEL BODANSKY, FRAMEWORK CONVENTION ON TOBACCO CONTROL: THE FRAMEWORK CONVENTION/PROTOCOL APPROACH 11 (1999) ("The framework convention/protocol approach allows law-making to proceed incrementall[y], beginning with a framework convention that establishes a general system of governance for an issue area, and then developing more specific commitments and institutional arrangements in protocols."); InternationalLaw and Health, Two Approaches: The World Health Organization's Tobacco Initiative and InternationalDrug Controls, Summary of Remarks by Laurence Boisson de Chazournes, 94 AM. SOC'Y INT'L L. PROc. 193, 194 (2000) ("In deciding that it would take the form of a framework convention, member states have indicated that the legislative process to be used will be of a continuing nature."); Luk Joossens, From Public Health to International Law: Possible Protocolsfor Inclusion in the Framework Convention on Tobacco Control, 78 BULL. WORLD HEALTH ORG. 930,930-31 (2000). 4. At the time of publication, an Open-Ended Intergovernmental Working Group for FCTC is currently negotiating the rules of procedure under which the Conference of the Parties will convene. Once established, the Conference of the Parties, in fulfilling its oversight role for the Convention, "shall keep under regular review the implementation of the Convention and take the decisions necessary to promote its effective implementation and may adopt protocols, annexes and amendments to the Convention . " FCTC, supra note 1, art. 23; see also infra note 52 and accompanying text (discussing the role of the Conference of the Parties in the adoption of "A Protocol on the Treatment of Tobacco Dependence"). 5. Although this Article refers repeatedly to "smoking" and "smoking cessation," this phraseology is used primarily for rhetorical convenience and is not intended to exclude the use of cessation interventions for other forms of tobacco. https://digitalcommons.law.yale.edu/yjhple/vol5/iss1/3 2 Meier: Breathing Life into the Framework Convention on Tobacco Control BREATHING LIFE INTO THE FRAMEWORK CONVENTION ON TOBACCO CONTROL tobacco, the FCTC fails to place firm mandates on states to address clinical smoking cessation, thus abandoning the millions already addicted to nicotine and vulnerable to the morbidity and mortality of smoking. In Part I, this Article begins by examining the scope and harms of the tobacco pandemic, explaining the processes that led states to recognize the magnitude of this global threat and to draft the FCTC. In doing so, this Article highlights the unfulfilled promise of smoking cessation for stemming the tobacco pandemic, critically assessing the FCTC's failure to mandate clinical cessation interventions. Article 14, the only section of the FCTC to address cessation, obviates state responsibility to provide any clinical interventions for those addicted to nicotine. Although the WHO initially proposed a "Protocol on the Treatment of Tobacco Dependence," member states quickly abandoned this regulatory mechanism in favor of the less-obligatory policy recommendations of the FCTC. Part II argues that such neglect-turning a blind eye to a dangerous and often deadly addiction-violates the international human right to health. After defining the scope of the right to health, Part II analyzes affirmative obligations on states to address smoking cessation pursuant to this right, laying out a hierarchy of resource-dependent options that states might employ in fulfilling their obligations to palliate the effects of the tobacco pandemic. Applying this analysis to the FCTC, Part III proposes that states party to the FCTC reengage a protocol to address nicotine addiction and clinical tobacco cessation interventions. This Article concludes that a FCTC cessation protocol would revitalize the right to health and give states the formalistic tools necessary to curb smoking, prevent disease, and promote public health. I. SMOKING AND THE FCTC A. Tobacco and Its Discontents Countless others have elucidated the enormous public health ramifications of the tobacco pandemic.6 Today, over 1.1 billion people worldwide smoke.7 Approximately one-quarter of all lifelong smokers will die in their middle age (between the ages of thirty-five and sixty-nine) as a 6. E.g., JUDITH MACKAY & MICHAEL ERIKSEN, THE TOBACCO ATLAS (2002); TOBACCO CONTROL IN DEVELOPING COUNTRIES (PrabhatJha & Frank Chaloupka eds., 2000). 7. WORLD BANK, CURBING THE EPIDEMIC, GOVERNMENTS AND THE ECONOMICS OF TOBACCO CONTROL 13 (1999).
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