The FCTC dilemma on heated tobacco products
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European University Institute, Italy
PAS Institute of Legal Studies, Poland
HAS Centre for Social Sciences Institute for Legal Studies, Poland
Publication date: 2019-03-26
Tob. Prev. Cessation 2019;5(Supplement):A32
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Questions and research method:
The paper asks two interrelated questions: (i) whether (and to what extent) heated tobacco products (HTPs) are covered by the Framework Convention on Tobacco Control (FCTC), and (ii) whether legal regime provided by the FCTC is suitable in a long-term perspective for regulation of HTPs. The paper relies in its analysis on standard legal research methods (i.e. textual and sociological).

In October 2018, the Conference of the Parties (COP) adopted its first decision on novel and emerging tobacco products, including HTPs. Unfortunately, the decision has left many legal questions unanswered. For example, the preamble to the decision states that HTPs ‘are tobacco products’ subject to the FCTC provisions. However, at the same time, its paragraph 5 not only remains obscure as to the applicability of the FCTC but also makes a distinction between HTPs and the ‘devices designed for consuming such products’, reinforcing the idea that the devices need separate (and potentially looser) regulations.

The paper argues that HTPs indeed need to be legally classified as tobacco products under the FCTC. The paper also submits that the distinction made by the COP between HTPs and devices leads to unsatisfactory results as it creates loopholes in tobacco control standards. In addition, the paper contends, when addressing the normative question of suitability of the FCTC disciplines, that the answer depends not only on scientific evidence relating to health risks posed by HTPs, but also on the conceptualization of the FCTC ultimate objective-(s).

The research was funded by the Polish National Science Centre under the grant number UMO-2016/21/B/HS5/02065.
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