The science is clear: smoking and vaping cause more severe symptoms of COVID-19. Tobacco use is known to be a major risk factor for non-communicable diseases like cardiovascular disease, cancer, respiratory disease and diabetes. Individuals with these underlying conditions are at higher risk of developing severe disease and death when infected with COVID-19. The use of electronic cigarettes (e-cigarettes) is also known to increase the risk of heart disease and lung disorders, and thus predispose e-cigarette users to COVID-19. Evidence has shown that cigarette and e-cigarette users are at higher risk of contracting COVID-19.
In this time of a global pandemic, the tobacco industry which is already causing eight million deaths every year, is presenting itself as a solution rather than a problem of public health. As governments around the world struggle to design a new normal to address the pandemic, we are at an opportune time to hold the tobacco industry accountable and demand for compensation for the harms that it has caused, calling for further implementation of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC).
On 29 July 2020, the Global Center for Good Governance in Tobacco Control, in partnership with STOP and the WHO FCTC Secretariat’s Knowledge Hub for Article 5.3, organized a webinar that discussed the continuous interference of the tobacco industry at a time when governments are growing weary as they battle the COVID-19 pandemic. The webinar featured insights from high-level speakers and anti-tobacco advocates from around the world.
What can governments do to hold the tobacco industry accountable to the harms it has caused?
The tobacco industry can never be a champion of public health, considering the fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests. This has not stopped the tobacco industry from positioning itself as an ally of governments and building its image as a friend and a benefactor, as part of its pernicious effort to interfere with public health policy. On the other hand, for governments that adopt strong public health measures, the industry has not hesitated to attack such measures by entangling governments in protracted and costly litigation.
The WHO FCTC contains measures to combat tobacco industry interference and enable parties to demand compensation. Article 5.3 of the WHO FCTC call on governments to “be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts,” and to “protect public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry.” On the other hand, Article 19 of the WHO FCTC focuses on liability and mandates parties to adopt laws or promote existing ones that will enable them to hold the tobacco industry liable and seek compensation for the harms that it has caused.
In Brazil, the government through its Attorney-General filed a lawsuit against the tobacco industry to recover healthcare costs that it has spent in treating tobacco-related diseases. The suit was filed against British American Tobacco and Philip Morris, along with their Brazilian subsidiaries. In South Africa, the government has banned tobacco products as part of its response to the COVID-19 pandemic and has rejected the tobacco industry’s appeal to overturn the ban.
Parties may also take inspiration from the US’s Vaccine Injury Compensation Program, which provides an alternative to the traditional legal system by allowing victims to recover compensation for vaccine injury through an administrative process. Similarly, long-arm jurisdiction or the use of foreign courts may also be effective especially in suing companies over which local courts may not have jurisdiction.
But aside from taking the tobacco industry to court, collecting tobacco taxes can also be a viable option for Parties. This route may also help governments find financial resources as they combat COVID-19. In the Philippines, taxes from the tobacco industry were routed to fund its health insurance program while in El Salvador, 35% of the taxes collected were allocated to its Health Solidarity Fund. In some cases, such as in Ecuador, taxes from tobacco companies helped in securing funds to cover disaster response.
Tobacco Industry and Its Interference at a Time of a Global Pandemic
The tobacco industry will not pass up an opportunity to clean up its image and endear itself to the public. It is unfortunate that a global health crisis is being used by the industry to score brownie points and present itself as friend and an ally.
Now more than ever, Parties and anti-tobacco stakeholders should be vigilant in ensuring that these interferences by the tobacco industry are noticed and called out. There is a menu of tools and treaties that Parties can use to ensure that the tobacco industry is made accountable and to demand compensation for its victims and the problems that it has caused.
 WHO (30 June 2020). Smoking and COVID-19. Scientific Brief. Available from: https://www.who.int/publications/i/item/WHO-2019-nCoV-Sci_Brief-Smoking-2020.2 (accessed 17 August 2020).
 WHO (11 May 2020). WHO statement: Tobacco use and COVID-19. Available from https://www.who.int/news-room/detail/11-05-2020-who-statement-tobacco-use-and-covid-19 (accessed 17 August 2020).
See also: WHO Tobacco Free Initiative (2020). Tobacco and waterpipe use increases the risk of COVID-19. Available from: http://www.emro.who.int/tfi/know-the-truth/tobacco-and-waterpipe-users-are-at-increased-risk-of-covid-19-infection.html (accessed 17 August 2020).
 WHO Tobacco Free Initiative (2020). Tobacco and waterpipe use increases the risk of COVID-19. Available from: http://www.emro.who.int/tfi/know-the-truth/tobacco-and-waterpipe-users-are-at-increased-risk-of-covid-19-infection.html (accessed 17 August 2020).
 Gaiha S.M., Cheng J. and Halpern-Felsher B. (11 August 2020). Association between youth smoking, electronic cigarette use, and coronavirus disease 2019. Journal of Adolescent Health [online]. Available from: https://www.jahonline.org/article/S1054-139X(20)30399-2/fulltext#articleInformation (accessed 17 August 2020). See related news article: Digitale E (11 August 2020). Vaping linked to COVID-19 risk in teens and young adults. Stanford Medicine News Center. Available from: https://med.stanford.edu/news/all-news/2020/08/vaping-linked-to-covid-19-risk-in-teens-and-young-adults.html (accessed 17 August 2020).
 WHO (27 May 2020). Tobacco. Available from: https://www.who.int/news-room/fact-sheets/detail/tobacco (accessed 17 August 2020).
 Global Center for Governance in Tobacco Control (24 March 2020). COVID-19 and Tobacco Industry Interference (2020). Available from: https://ggtc.world/2020/03/24/covid-19-and-tobacco-industry-interference-2020/#_ednref18 (accessed 17 August 2020).
 WHO FCTC (2008). Guidelines for implementation of Article 5.3 of the WHO FCTC (Protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry). Decision FCTC/COP3(7). Available from: https://www.who.int/fctc/treaty_instruments/adopted/article_5_3/en/ (accessed 17 August 2020).
 Vital Strategies (September 2019). Crooked Nine: Nine Ways the Tobacco Industry Undermines Health Policy. New York, NY. Available from: https://exposetobacco.org/wp-content/uploads/2019/09/Crooked-9-STOP.pdf (accessed 17 August 2020).
 WHO FCTC, Preamble, par. 19
 WHO FCTC, art. 5.3
 Myers M.L. (21 May 2019). Brazil files historic lawsuit to hold global tobacco companies responsible for health harms. Statement of Matthew L. Myers, President of the Campaign for Tobacco-Free Kids. Available from: https://www.tobaccofreekids.org/press-releases/2019_05_21_brazil_lawsuit (accessed 17 August 2020).
 Venter Z. (27 June 2020). Pretoria High Court stubs out Fita case, cigarette ban stands. Independent Online (IOL). Available from: https://www.iol.co.za/pretoria-news/news/pretoria-high-court-stubs-out-fita-case-cigarette-ban-stands-50011299#:~:text=This%20was%20confirmed%20on%20Friday,part%20of%20the%20national%20lockdown (accessed 17 August 2020).
 US Health Resources & Services Administration (January 2020). National Vaccine Injury Compensation Program. Available from: https://www.hrsa.gov/vaccine-compensation/index.html (accessed 17 August 2020).
 STOP (16 July 2020). Tobacco taxes: Funding better health and stronger economies during COVID-19. Blog. Available from: https://exposetobacco.org/news/funding-health-and-economies/ (accessed 17 August 2020).