TABLE OF CONTENTS

TITLE / PAGE
EXECUTIVE SUMMARY / 3
THE FACTS / 4
A. ON THE FORM / 4
B. ON THE BACKGROUND / 5
I. ON THE HEALTH WARNINGS / 5
Classification of countries / territories with the largest warnings on cigarette packs / 6
1. The health warning and intellectual property / 7
1.1.  National legislation: constitutional rights / 7
II.ON PROJECTED ANALYSES OF THE IMPACT ON TOBACCO CONSUMPTION OF INCREASING THE SIZE OF HEALTH WARNINGS / 8
2.1. On the use of reports from false and unfounded studies / 8
Table on tests of the effectiveness of health warnings / 10
2.2. Lack of existence of a link between the size of health warnings and the increase in the illegal tobacco trade / 11
2.3. The inadmissibility of arguments taken from the Civil Code / 11


EXECUTIVE SUMMARY

1.  Gabon, which signed the Framework Convention on Tobacco Control (FCTC) of the WHO in 2003, and ratified it in 2009, has the obligation to adapt the law and implement all of its provisions, such as those relating to health warnings in the three years following the entry into force of the Convention, that is, by the end of 2012 at the latest;

2.  Article 11 of the Convention provides that the health warnings and messages appearing on the different kinds of packaging and labeling of tobacco products must cover 50% or more of the principal surfaces, but not less than 30%. Accordingly, the Convention sets a minimum and invites the Parties to adopt larger health warnings in order to better protect public health. Article 2 of the Convention states along these lines that: …“nothing in these instruments prevents a Party from imposing more severe penalties.” Gabon has the right, then, to adopt a draft law that provides for health warnings covering an area of 60% of the front surface, and 65% of the back surface (Article 5);

3.  At the global level as well as in Africa, a number of countries have adopted very large health warnings without violating national law, international trade law (WTO agreements), or the Bangui Agreements on intellectual property. Australia has adopted neutral health warnings (occupying the entire side, prohibition of the logo, etc.), Uruguay (80%), Mauritius has adopted warnings covering 65%, Burkina Faso (60%), Togo (65%), etc. Gabon should not be left out.

4.  In domestic law and international law (the WTO agreements), it is allowed that commercial freedom may be restrained in the interest of the protection of public health and the environment. Thus, the restrictions presented by the draft law and possible future regulatory decrees are justified by public health considerations, and particularly the need to protect the public against the devastating dangers of tobacco use in our country. For example, at the time of international food crises associated with Mad Cow Disease, dioxin-contaminated chicken and the avian flu epizootic, the Government of Gabon has taken measures to restrict the importation of these products at that time, even though Gabon was a party to the various agreements noted above.

5.  There is no connection between the size of health warnings, or increases in the tobacco tax and the illegal smuggling of tobacco products. Tobacco smuggling is a global phenomenon organized by the tobacco industry, and is essentially due to the weakness of systems for the oversight of the supply chain and the weakness of customs enforcement measures. There is now a great opportunity to control tobacco smuggling at the global level, and with the global agreement on the protocol on the smuggling of tobacco products that was achieved in Geneva in April of 2012. This protocol is to be adopted at the next Conference of the Parties to the FCTC in November 2012, and Gabon has taken part in the entire process of negotiation on this protocol. Once it has been adopted, Gabon must ratify it in order to obtain international technical assistance to take action against illegal traffic in tobacco.;

6.  The provisions of the Civil Code do not in any way prohibit inclusion of the right to engage in civil litigation in the draft law. The rule today is for each law to grant this right to specific groups to ensure its implementation. Thus, Togo, Burkina Faso, Chad, etc., have regularly made a point of including this right in their anti-tobacco legislation.

7.  With regard to all developments that have just been implemented, it should be noted that all arguments put forward by the tobacco industry, and particularly by BAT-Gabon, are entirely bereft of any legal foundation. Such arguments must be declared inadmissible and considered null and without effect.

THE FACTS

BAT-Gabon vehemently contests the inclusion of a provision concerning health warnings in the draft law of Gabon (Article 5). However, pursuant to the terms of Article 11 of the WHO’s Framework Convention for Tobacco Control (FCTC), each Party must adopt and implement effective measures for packaging and labeling tobacco products within three years following the entry into force of the Convention as it bears on these matters. Article 11 of the FCTC provides that the health warnings and messages appearing on the different kinds of packaging and labeling of tobacco products must cover 50% or more of the main surfaces, but not less than 30%.

To achieve the objective of the Convention and its protocols and successfully implement its provisions, Article 4 of the Convention provides that the Parties shall follow in particular the principle according to which everyone must be informed of the consequences for health, the risk of tobacco addiction and the mortal risk of tobacco consumption and exposure to tobacco smoke.

The Guidelines for the implementation of Article 11 of the Convention, adopted at Durban in South Africa in November 2008, encourages the Parties to take into account the available data and experience of the other Parties to define new measures with regard to packaging and labeling, seek to implement the most effective measures possible and encourage the Parties to adopt the very large size health warnings.

Gabon, which signed the Convention in 2003 and ratified it in 2009, is obliged to adopt the law and implement all of its provisions, including those concerning health warnings with the three years following the entry into force of the Convention, or the end of 2012 at the latest. Gabon, for the purpose of complying with the Convention, is adopting a draft law that calls for health warnings covering 60% of the front surface and 65% of the back surface (Article 5). BAT-Gabon is contesting this draft law on two key points, notably, (1) health warnings should not exceed 50%, which would be the limit of the Convention, and (2), the right to take legal action recognized by this draft law should be suppressed.

In response to the arguments above of the tobacco industry and particularly BAT-Gabon, on behalf of the Ministry of Health, we intend to present our objections in the manner and substance presented below:

A. ON THE FORM

1. Pursuant to the terms of Article 5, sub-paragraph 3 of the WHO’s Framework Convention on Tobacco Control (FCTC), ratified by Gabon in 2009, “In defining and implementing their public health policies with regard to tobacco control, the Parties must see to it that these policies are not influenced by commercial and other interests of the tobacco industry, in accordance with national legislation.” According to the Guidelines for the implementation of Article 5.3 of the FCTC, “there is a fundamental and irreconcilable conflict between the interests of the tobacco industry and those of public health” (OMS, Directive for the implementation of Article 11 of the FCTC, Edition 2011, p.5).

The tobacco industry is engaged in the production and promotion of a product which has been scientifically proven to cause addiction, disease and death, and is the source of a variety of social ills, notably impoverishment. The directive asks then that the States protect the process of conception and implementation of public health policies with regard to tobacco control from the tobacco industry to the fullest extent possible.

The legal challenges of BAT-Gabon to the draft law of Gabon, whose purpose it is to defend their private interests, must be analyzed as an intervention in the affairs of a sovereign State and in conflict with Article 5.3 cited above, and they should therefore be rejected in their entirety.

2. In the law of Gabon, which arises from the Romano-Germanic tradition, citizens are only supposed to become aware of the existence of a law as of the time of its promulgation and publication in the bulletin, Journal Officiel de la République. The draft law being challenged is not supposed to be known by BAT-Gabon since it has not yet been published in the J.O., and so the right of legally challenging it under discussion should not be admissible in the matter in question.

May it please the Court, then, to declare these legal challenges to be null and of no effect.

B. ON THE BACKGROUND

I. ON THE HEALTH WARNINGS

Article 11.1.b) iv) of the Convention provides that health warnings and messages appearing on different kinds of packaging and labeling of tobacco products must cover 50% or more of the main surfaces, but not less than 30%. Granting that it is known that the effectiveness of health warnings and other notices increases with their size, the Parties should study the possibility of using health warnings and messages covering more than 50% of the main surfaces. The text of the health warnings and messages should be printed in bold characters of ample size, easy to read and in a style and in one or more particular colors ensuring their visibility and optimal legibility. (OMS, Guidelines for the implementation of Article 11 of the FCTC, Edition 2011, p.55). In addition, the Convention sets minimal rules, and the Parties may issue stricter rules in accordance with Article 2.1, which states that: “…nothing in these instruments shall prevent a Party from imposing stricter requirements.”

Gabon is not the only country to propose health warnings that must cover more than 50% of the main surfaces of packs and cartons. In Africa, Mauritius was the first country to adopt a law in June of 2009 establishing the principle of health warnings by its law (Decree No. 263 of 2008, concerning the Amendment of sections 193 and 194 of the law on public health). Pursuant to the terms of this decree, the messages and graphic images that are supposed to appear on cigarette packs and cartons must occupy an area of 60% of the surface of the front of the pack (in French), and 70% of the back surface (in English) of cigarette packs and cartons. This decree has been forcefully implemented in the country and all cigarette packs display a series of eight (08) health warnings with graphic images and texts or messages

Furthermore, Burkina Faso has also adopted Decree n°2011-1051/PRES/PM/MSjMEF concerning the packaging and labeling of tobacco products in Burkina Faso. Article 14 of this decree provides that “Health warnings and messages must cover at least 60% of the main surfaces of the package.”

One could also mention here Madagascar which has also adopted Interministerial Administrative Order N°14.762/2OI2 setting the terms for the implementation of Decree n°20i0-1008 of December 14, 2010 concerning packaging and labeling of tobacco products for sale in the country. This administrative order has made the applicable health warnings mandatory as of the end of August 2012, and the first packs with graphic images and messages are already on the domestic market, in accordance with Article 3 of the aforesaid administrative order.

At the global level, a number of other countries have adopted and are implementing very big health warnings as indicated in the table classifying countries below:


With regard to all of the foregoing, it is important to underscore that the movement for tobacco control is a global movement which excludes no country, and Gabon should not tarry on the fringes of this process. Gabon is, moreover, very much behind schedule with respect to its obligations relating to the Convention and the swift adoption of the draft law under consideration is awaited not only by our fellow countrymen, but also by the international community.

1.  The health warning and intellectual property

1.1. National legislation: constitutional rights

It is true that the Constitution of Gabon of March 26, 1991, as amended by the laws of March 18, 1994, September 29, 1995, April 22, 1997 and October 11, 2000, in its Article 3, guarantees for all citizens a number of fundamental rights, among them the fundamental right to property, the right to communicate, or commercial freedom. However, Article 3, sub-paragraph 8 of this Constitution, states that “The State, to the extent possible, guarantees to all, particularly children, mothers, the disabled, retired workers and the elderly, protection of health, social security, a secure personal environment, rest and recreation.” Thus in accordance with this provision of the Constitution, the State can, because of the need to protect the public health of all persons, restrict these freedoms. The argument put forward by BAT-Gabon to oppose the adoption of the draft law with a size of 60% on the front surface and 65% on the back surface (Article 5), is without legal foundation and is inapplicable in the case at hand.

1.2. International law

The tobacco industry (BAT-Gabon) seems, moreover, to find potential conflicts between the proposed draft law and a number of international conventions to which Gabon is a party. This analysis is incorrect as shown by the developments set forth below: