Research paper, Draft (final version to be expected in May)

Fighting for tobacco control legislation in Ukraine – five draft tobacco control laws in one year

Konstantin Krasovsky
IPF Policy Fellow


In the former USSR various aspects of tobacco control legislation (like health warnings, restrictions of smoking in some public places, tar and nicotine levels, etc) were covered by several regulations. The main question of tobacco control legislation development in Ukraine was about which way is better: 1) to improve existing laws (like the Law on advertising) and regulations or 2) to prepare special tobacco control law. The first way seemed more feasible and needed less resources, however tobacco control advocates were mainly in reactive position: they mainly react on proposition of tobacco industry and other policy makers instead of proposing new laws or regulations. However, to push the tobacco control legislation, some of governmental officials or members of the parliament have to take responsibility to be official authors of the proposals. Unfortunately, until 2000 there was no such a person, even in the public health field. For example, Mr. Sergey Shevchuk, who was head of the Parliament Health Protection Committee in 1998-2000, at the meeting in Kiev in early 1999, after attending UNICEF sponsored conference on tobacco control in New York, said that he prefers to improve existing legislation, but not to introduce special tobacco control law.
The attempts to introduce some tobacco control provisions were carefully monitored by tobacco industry. Tobacco industry documents, available online, revealed some examples of this monitoring:

Weekly Highlights, January 13, 1997
On January 11, the Cabinet of Ministers passed a new Decree on product packaging and labeling. The new Decree is a significant improvement on previous similar Decrees issued over the last few months. In general it is in line with the industry’s proposal. The Decree stipulates that the health warning and all non-registered text should be in Ukrainian, effective immediately. A letter was sent to the authorities requesting them to grant the industry a 5-month period to use up all the material that have already been ordered and that do not comply with the new requirements.

Weekly Highlights March 30 1998
A draft anti-tobacco Decree being circulated by the Ministry of Health to its departments and selected departments within the Cabinet has been made public. The draft contains relatively extreme requirements for labeling of cigarette products similar to those favoured by international anti-tobacco activists. Cabinet representatives agree that the draft proposed do not comply with existing legislation concerning product labeling, that local industry would find difficult and costly to implement the proposals, and that other state organizations should participate in any debate concerning the draft proposals, including the state standards bodies and the tobacco industry. No concrete action is expected on the draft Decree in the nearest future.

Weekly Highlights, February 22, 1999
Area has received copies of two draft legislation proposals put forward by the Health Care Committee of the Ukrainian Parliament entitled “On introduction of special medical duty on cigarettes” and “On a total ban of tobacco and alcohol advertising and sponsorship”. The first draft proposal should be effectively distributed to the Parliament in April and be discussed in the end of June. The latter should be revised in June and presented to Parliament in September.

So in 1997-1999 any attempts to introduce some separate tobacco control measures, like health warnings or ban of tobacco advertising, were either “in line with the industry’s proposal” or effectively blocked by the industry and its allies. Special tobacco control law was needed to unblock the situation.

The governmental draft law of 2000

In 1999 Dr. Olga Bobyleva was appointed first deputy minister of Health. One of her responsibilities was to be a deputy head of the Tobacco Control Board of the Government of Ukraine. In early 2000 she proposed to prepare a special tobacco control law and promised to push it through government to introduce it to the parliament as a government proposition. The first draft of the law was written by Dr. Konstantin Krasovsky. He used the Polish law on tobacco control and health protection as a model.

Main features of the draft were:
1.    Smoking ban in health, educational, culture and sport settings, public transport, state premises;
2.    Ban of most kinds of tobacco advertising and sponsorship (except advertising in special tobacco shops and special tobacco professional publications);
3.    Eight rotating health warnings covering 25% of two largest sides of the pack;
4.    Disclosure of ingredients and additives of tobacco products.
5.    Ministry of health has the right to regulate upper limits of any harmful substance in tobacco products (not just tar and nicotine).
6.    Introduction of State Program of tobacco use prevention, which should be financed by 1% of all tobacco excise tax revenues, allocated from the state budget.

After some corrections made by the Ministry of Health workers, the next version of the Law on Tobacco Control and Health Protection was presented at the session of the Governmental Tobacco Control Board (GTCB) on May 29, 2000 and was supported by members of the Board. Then the draft law was officially introduced to the government. According to the procedure all ministries can propose their amendments, and other propositions to the draft law. Most of the ministries supported the draft law with some suggestions and only the Ministry of Agriculture strongly opposed it. The position of this ministry was actually dictated by the Ukrainian Tobacco Association (“Ukrtutun”). This Association was under control of transnational tobacco industry and Philip Morris, JTI, BAT and Reemtsma were members of the Ukrtutun.

Main arguments of the of the Ministry of Agriculture were the following:
1.    Allocation of tobacco excise revenue for tobacco control is against the national tax legislation.
2.    Many provisions (like smoking ban in some public places) are already regulated by existing legislation.
3.    Disclosure of tobacco ingredients and health warnings violates property rights.
4.    Ban of tobacco advertising is ineffective.

They did not support the draft in general, especially advertising ban and health warnings.
Rest of the ministries supported the law. Ministry of Labour and Social Policy, Ministry of Education, Ministry of Finance, Ministry of Defense, Youth and Sport Committee and several regional health authorities presented some proposals, which were used for the final draft.
This final draft not only saved all the above-mentioned features, but it was even stronger (for example, the required size of health warnings was increased to 30%). In March 2001 the draft law was almost ready to be introduced to the parliament on behalf of the government.

The parliament draft law

However, in March 2001 four members of the parliament (Mr. Sergey Shevchuk, Mr. Vitaliy Chernenko, Mr. Boris Khazan, Mrs. Liliya Grigorovich) presented the draft Law on Tobacco Use Restrictions. According to the procedure the government has to issue official judgment on every draft law officially registered in the parliament. The presented draft law looked like public health law and even for the Ministry of Health it was difficult to justify negative attitude to the MPs draft law. As the government expressed its support to this draft law it was not able to present its own Tobacco Control and Health Protection Law as an alternative. The MPs draft law was not well edited, which made obvious that it was made in a hurry without any discussions. Nevertheless, while other legislative proposals in the Ukrainian parliament are usually postponed even for years to be discussed, this draft law was considered for the first reading just in four months after its introduction.

In June 2001 the Law on Tobacco Use Restrictions was adopted by the parliament at first reading without any opposition. It revealed that MPs supported tobacco control in general, but did not have clear opinion on provisions of such law. The adopted draft law was rather weak, however all tobacco factories (except Philip Morris) attacked it stating that it serves interests of only one tobacco company. For example, it had severe tar and nicotine limits, which small factories could not meet, while these limits have no value for public health. Another provision, which Philip Morris was going to use for competition purposes, was about number of cigarettes in a pack. The draft law stated that only packs of 20 should be allowed. Philip Morris produces only such packs in Ukraine, while some competitors produce packs of 18 and 25 cigarettes. Such features are not a surprise, taking into account that the draft law key author Mr. Sergey Shevchuk has long record of contacts with Philip Morris.

The NGO Coalition for Tobacco Free Ukraine issued a special statement on the draft law. While supporting the idea of such law and some of its provisions, the Coalition stated that the draft law is not acceptable for the following main reasons:
1)    One of the law objectives was “to ensure safety of tobacco products”. The Coalition proposed to change it for “to ensure reduction of tobacco products toxicity”, because there is no such thing as a safe cigarette.
2)    Provisions of the smoking restrictions article mainly defended smokers. Smoking can be banned only in those governmental buildings, which have special smoking rooms. Owners of buildings and transport vehicles “are obliged to design special places for smoking”, even if there is no need for such rooms. All transport vehicles get the right to have smoking places, while in reality there were no such places, except international flights (smoking was banned by the Ukraine International Airlines only in November, 2001). So health protection of non-smokers was to become worse with this law, than before.
3)    The draft law banned disclosure of information on tobacco products ingredients.
4)    Health warnings provisions were based on the EU Directive 37/2001, while some important points were missing: (a) there was no ban of misleading terms, like ‘light’ cigarettes; (b) warnings should be printed “on a contrasting background”, while the EU experience revealed it does not work; (c) warnings should include tar and nicotine levels, while methods of such levels testing are misleading; (d) all packs of tobacco products must contain message “Smoking to minors is prohibited”, which is actually a provocation of smoking among young people.
5)    The draft law has no provisions on tobacco advertising and on tobacco control activities funding.

The differences of the governmental and the parliament draft laws (as well as two other draft laws) are summarized in Table 1.
The Coalition for Tobacco Free Ukraine published the above-mentioned statement on its web site and soon one of the co-authors of the MPs draft law, Mr. Boris Khazan called to the Coalition and said that he wants to meet and discuss the statement.
It occurs that he really did not participate in writing the draft law and was included to the authors list to ensure support of his Greens Party. Mr. Khazan later supported all Coalition proposals and submitted these proposals for changing the draft law for the second reading in the parliament on his behalf.

Meeting with another co-author of the Law Mrs. Liliya Grigorovich revealed that she also did not participate in writing the law and was included to the authors list to ensure support of her People Movement Party. She took compromise position.
However two other authors of the draft law had rather strong positions and were rather pro-tobacco. Mr. Chernenko was a chairman of the Public Health parliament committee at that time and had a strong influence on the process of the law preparation for the second reading. He agreed to invite into the working group, which prepared the law for the second reading, representatives of tobacco industry. Mr. Shevchuk later was appointed a state secretary of the Ministry of Health and, while leaving the parliament, could present his personal position as the ministerial (and actually the governmental) position.

To influence the process of draft law discussion The Coalition for Tobacco Free Ukraine persuaded another MP Mr. Orest Melnikov (formerly the Greens Party, then independent) to support public health position. He submitted alternative draft law called “On counteraction to tobacco epidemic”, which had very strong provisions (see Table 1). This draft law was actually written by the Coalition member Mrs. Anna Dovbakh.

Working group

The working group, which prepared the law for the second reading, did not have clear status. The discussions took long time, but decisions were compromised and sometimes changed by the Public Health parliament committee clerk ignoring the results of the discussions.
Public health position in the working were supported by Dr. Konstantin Krasovsky, Mrs. Galina Rud, executive secretary of the Governmental Tobacco Control Board, Mrs. Anna Dovbakh, who worked as an adviser of MP Melnikov, and partly by the representatives of the Ministry of Health Mrs. Alla Grigorenko and Mrs. Irina Semerun.
Tobacco industry position was clearly supported by Mr. Andrey Kril, lawyer of the Ukrainian Tobacco Association. Hidden support was provided by Mr. Igor Derkach, former MP and then adviser of MP, Mr. Pavlo Movchan, who was well known for his letters supporting tobacco industry positions. Strong influence of Vitaliy Chernenko and Sergey Shevchuk (who were current and former heads of the Health Protection Committee respectively) via the clerk of the committee Mrs. Raisa Krutikova, who acted as a working group secretary, forced public health advocates to agree for some compromises. It was a dilemma: what is better – a weak law with high chances to be adopted or a strong law with low chances to be adopted. Working group reached the following compromises:
-    ban of misleading terms on the cigarette packs, however only those which are included into international agreements, supported by Ukraine.
-    health warning should cover 25% of front and back sides of the pack and rotate every second month, which means 6 warnings in a year. Printing provisions were weak (contrasting background, etc.).
-    smoking is banned in public urban and sub-urban transport, air transport (including international one), in health, educational and culture settings, in closed premises when sport or other mass events are conducted there; in other closed premises, except places designated by owners; in other places designated by community authorities. Owners of transport vehicles, buildings and premises have to designate special smoking places with information on dangers of smoking.
Final draft law for the second reading
On November 13, 2001 the draft law was discussed at a formal meeting of the Health Protection Committee members, who should take decisions on provisions of the final draft law for the second reading. Unfortunately those MPs, who supported strong tobacco control measures (Boris Khazan and Orest Melnikov) were not members of the Committee and even could not attend the meeting due to personal reasons. Among the Committee members only Mr. Anatoliy Novik supported strong tobacco control provisions, the rest had no clear opinion and were ready to support positions, presented by the chairman of the Committee Mr. Chernenko. Several representatives of tobacco control NGOs and representatives of tobacco industry also were invited to attend the meeting.
Mr. Shevchuk attended the meeting as a representative of the Ministry of Health. He worked very hard to make law as weak as possible. He pushed the following points:
Unfortunately all Mr. Shevchuk’s proposals were accepted, while most propositions of public health proponents were ignored.
The draft Law on Tobacco Use Restrictions, which was introduced to the parliament for the second reading was very weak: tobacco advertising issues were not included, smoking restrictions would be hard to enforce, there should 6 health warning, but tobacco industry could chose only one.
While the tobacco control law was deeply needed it was a feeling that the bottom line of public health interests was crossed and the law can do more harm than good. It had so many compromises that the Coalition for Tobacco Free Ukraine decided not to support this law. On December 12, NGO Coalition for Tobacco Free Ukraine in its press-release called this law "an imitation of tobacco control legislation" and urged members of the parliament not to support this law as a bad law is worse than no law.
On December 13, 2001 Mr. Chernenko proposed to vote the draft law without any discussion for the second and right away for the third, final reading. Only 109 members of the parliament voted for this law, while 226 were needed for the law to be adopted. Legally the draft law was killed. Some MPs did not support the draft law for public health reasons, while many of them voted against the law because it had provisions, beneficial for the Philip Morris, but unfavorable for small local tobacco factories (like strong tar and nicotine limits).
So Mr. Shevchuk and Mr. Chernenko could not implement the Philip Morris desire to have the law, which just imitate tobacco control, while helping to compete other tobacco factories. However, the main task of tobacco industry was successfully fulfilled: a strong governmental tobacco control law was not even introduced. Ukraine did not get tobacco control legislation. Moreover tobacco industry managed to introduce provisions, which looked like tobacco control law into the legislative act, which was under its strong influence.

Law on regulation of alcohol and tobacco products

Since 1995 technological and some other aspects of tobacco production in Ukraine are regulated by the Law “On State Regulation of Production and Trade in Ethyl Alcohol, Cognac and Fruit Spirits, Alcoholic Drinks and Tobacco Products”. In 2001 it was decided to amend this law by provisions, which look like tobacco control ones. These amendments were to be considered by the Finance Committee of the Parliament, where tobacco industry had strong influence. It is enough to say that member of this Committee and key author of the amendments, MP Mr. Vyacheslav Sokerchak was not re-elected in 2002 and later became president of the Union of tobacco and alcohol producers and wholesalers (SOVAT).
The main aim of the amendments was to block governmental attempts to control tobacco from public health perspective by including to the Law on regulation of alcohol and tobacco products very weak provisions to claim that issues which should be covered by tobacco control law are already covered by the national legislation. In 2003 the main argument of the Ministry of Agriculture against the new draft tobacco control law was that such law is not needed, as its provisions are already present in current legislation.
The main provisions of the amendments were the following:
·    Information on tar and nicotine content in smoke of one cigarette, placed on one of the side surfaces of a pack should take at least 10 per cent of the total surface. The text of the following contents: “the Ministry of Health Protection of Ukraine warns: smoking is your health hazard”, placed on the front and the back side of the pack should take at least 10 per cent of each of these surfaces. These provisions shall take legal effect in 18 months upon entering this Law into force.
·    Except for specially designed places, consumption of alcoholic drinks (!) and tobacco products is prohibited: in health protection institutions; in educational and pedagogical institutions; in public transport (including international communication transport); in cultural institutions; in enclosed sports buildings; in elevators and coin telephones; at children’s playgrounds; in buildings of the bodies of state power, local government bodies and other state institutions.
·    Sale of alcoholic drinks and tobacco products is prohibited: by persons under the age of 18;
·    to persons under the age of 18; in buildings and on the territory of pre-school, educational institutions and health protection institutions; in buildings of specialized trade organizations, which perform trade in children’s or sports products; at sport competition venues; in other places, specified by local government bodies; from vending machines; from self-service shelves (except for tobacco products in blocks and alcoholic drinks);.apiece (for tobacco products, except cigars).
·    All other laws and normative and legal acts, related to production and turnover of alcohol …and tobacco products shall be valid to the extent that does not contradict this Law.
Besides this the draft law stipulated that the content of tobacco products should not be disclosed even for the government. The draft law also established rather high tar and nicotine levels. These two provisions were eventually deleted from the final law (see below).
The provisions, which looked like "health protection" such as small health warning with archaic message "Ministry of Health warns: smoking is harmful for your health" did not present any danger for tobacco industry. This law also states that it has priority over other legislative acts to defend the industry from public health tobacco control law, which could be adopted in future.
However so crude attempt of the tobacco industry to dictate its own rules to authorities had got some resistance, while not very strong. The chronology was the following:
·    On July 5, 2001 the Ukrainian parliament adopted amendments to the Law on regulation of alcohol and tobacco products. NGO Coalition for Tobacco Free Ukraine and the Ministry of Health applied to the President of Ukraine asking him to veto this law. The Coalition claimed that all provisions, which look like “health protection” should be deleted, while the Ministry cared more about its power to regulate content of tobacco products.
·    On August 1 the President has vetoed this law and return it to the parliament for changes. The objections in the area of public health issues were the following:
1) this law should not establish tar and nicotine levels in cigarettes, as they need to be regulated by the Ministry of Health;
2) content of tobacco products should be presented to the government and approved by appropriate governmental body.
·    On September 13, the amendments of the law on regulation of alcohol and tobacco products were adopted by the parliament ignoring the President proposals. NGO Coalition for Tobacco-free Ukraine and one fraction of the parliament applied to the President of Ukraine asking him to veto this law for the second time. At the press conference of September 25, the President said that he has rather strong position and will not sign the law. Next day tobacco industry conducted special press conference to defend the law and to persuade the President not to veto it for the second time. However the President of Ukraine did veto for the second time. NGO Coalition for Tobacco Free Ukraine welcomed this decision.
·    Later that year the parliament again supported the previous version of the law and again (on December 25, 2001) the President of Ukraine vetoed it.
·    Only in March 2002 the parliament agreed to accept the president’s proposals and the amendments were signed and entered into force.

Law on environment protection against tobacco smoke

The failure to introduce comprehensive tobacco control law through the government and the Health Protection Committee made The Coalition for Tobacco Free Ukraine to look for unusual ways to introduce the tobacco control law. MP Boris Khazan was rather cooperative, while he was not a member of the Health Protection Committee and his influence was limited. He was a member of the Environment Protection Committee and a member of the Green Party. So it was decided to develop the tobacco control law, which looked like environment protection law.
The draft law was written by Dr. Konstantin Krasovsky, while the official author was MP Boris Khazan.
To be considered by the Environment Protection Committee this draft law was presented as development of provisions of the “Atmosphere Air Protection Law”.
While containing all main provisions of the comprehensive tobacco control law, this draft law presented them in a specific way.

Terms. The main term was “environmental tobacco smoke”. Some tobacco control advocates do not like this term treating it as a tobacco industry term, however in the context of this law it became very useful. Other terms were: “air pollution by tobacco smoke”, which was defined as “any actions, which cause to release of environmental tobacco smoke into the air and can have negative impact of human health and environment”; “people, especially vulnerable to tobacco smoke”, were defined as “people with chronic diseases, the symptoms of which can become more severe, when they have to inhale environmental tobacco smoke”. Health warning were re-defined as “environmental health warning”. For tobacco advertising and sponsorship we used term “encouragement of environment pollution by tobacco smoke and wastes of tobacco products use”, which was defined as “any commercial information which is distributed in any form and by any means to promote purchase and use of tobacco products and cause formation of tobacco smoke and tobacco wastes”. Respective definitions of indirect advertising and sponsorship were also present.

The law did not restrict “smoking”. It banned or restricted “air pollution by tobacco smoke”. To protect children and other vulnerable persons such pollution was banned:
1)    In all child care establishments and other places designed mainly for use of persons below 18 (like children playgrounds);
2)    In health facilities, which “people, especially vulnerable to tobacco smoke”, can attend.
3)    In other places, where public events are conducted with attendance of children or “people, especially vulnerable to tobacco smoke”.

It was also proposed to ban “air pollution by tobacco smoke” in the following public places:
1)    urban and sub-urban transport vehicles;
2)    air, railway transport and in enclosed premises of river and sea transport;
3)    subways and waiting places of public transport;
4)    trade premises;
5)    sport and entertainment premises;
6)    other places, identified by local communities.

As to working places the draft law proposed to ban air pollution by tobacco smoke in all enclosed work premises and nearer than 5 meters to the entrance to the enclosed work premises. Employers were to get the right to establish special premises with separate ventilation, where it was allowed to pollute air by tobacco smoke, provided that these premises were not used for other purposes. This places were to be marked as “It is allowed to pollute air by tobacco smoke in this place” and within this place posters and other information on danger of smoking should be placed.

As to restaurants and other establishments serving food and refreshments the following restrictions were proposed:
1)    air pollution by tobacco smoke is banned in all establishments which allow to enter persons below 7 years old;
2)    in all establishments which has more than 30 seating places at least 50% of area should be reserved for smoke-free area.
All establishments, where air pollution by tobacco smoke is permitted should have special announcement about it (and also about availability or non-availability of smoke free area) at the entrance, as well as posters and other information on danger of smoking inside.

Information on most common and most dangerous polluting substances of tobacco emission should be presented to respective governmental body by every manufacturer and on every brand and every tobacco product. The list of such substances included: Polonium-210 and other radioactive substances; Nitrate; solid particles; Benzo[a]pyrene; Lead, Ammonia, Formaldehyde, Hydrogen cyanide, Cadmium and other substances on request of respective governmental body. Methods of collection of emission data included both ISO method and so called “realistic method” identical to method established in Canada. Such information should not be closed.

Health warnings were called “environment health warnings” and were to cover 40% of front and back large sides of the pack. Text of 8 warnings should be identified by respective governmental bodies and rotated at least once in 3 years. Each pack should also include inserts with information on the most common and most dangerous polluting substances of tobacco emission on one side and health warning on the other side. Any other inserts to the tobacco packs are prohibited.

There was ban of terms like “light cigarettes”, which make false impression that air pollution by this brand is less dangerous than pollution by other brands.

Ingredients. It was proposed to prohibit use of any ingredients, which:
1)    increase radioactivity of tobacco emissions;
2)    make inhaling of tobacco smoke easier;
3)    facilitate tobacco addiction development.
To use any ingredients the manufacturer should prove that inhalation of combustion products of this ingredient is safe for health.
All kinds of “Encouragement of environment pollution by tobacco smoke and wastes of tobacco products use” including indirect one and sponsorship were banned in the draft law. There was a detailed description of activities, which are treated as indirect “Encouragement” presented in the draft law.

The draft law was officially submitted by Mr. Khazan in December, 2001. Unfortunately, it was registered to be considered not by the Environmental Committee, but by the Health Committee. The Ministry of Environment (despite the fact that the Minister was a member of the Green Party) expressed negative attitude to the draft law. At the next election (in March 2002) the Green Party and Mr. Khazan failed to be re-elected and there was nobody in the parliament to present this draft law. Unfortunately it disappeared from the parliament consideration.
However, the experience of writing tobacco control law not as a public health law, but as environment protection law can be used in future attempts to push tobacco control legislation in those countries, which have strong environment movement at least to involve representatives of this movement into tobacco control efforts.

Discussion: problems and recommendations

The experience of lobbying tobacco control legislation in 2001 was rather pessimistic. There were five draft laws, but eventually the worst one was adopted. Tobacco industry managed to push legislation, which protects its vested interests, while looks like protecting public health. It also has got some protection against effective public health legislation as it can claim that most issues are already covered by existing legislation.
The experience of lobbying activities in 2001 highlighted the following problems of tobacco control legislation process.

Weak law or no law?

While tobacco control advocates are able to present draft law based on the best international experience, the final version, which is presented to a parliament for voting, can be much weaker than the very first draft. The reasons of weakening draft law are different: 1) tobacco industry lobbying (if tobacco industry representatives are accepted as partners in working out the final draft law it will be inevitably weakened); 2) desire of official law makers to have a draft law, which has high chances to be adopted (so they are ready to delete some strong provisions if their colleagues threaten that otherwise the law will fail); 3) poor knowledge of recent trends of effective tobacco control legislation by MPs and their staff (so they can easily delete strong provisions, like ban of misleading terms like “light” cigarette, but insist on severe tar and nicotine limits, believing that when improving “quality” of cigarettes, they protect public health).
Finally the draft law becomes so weak that tobacco control advocates have to ask themselves if it is worth to support such a law. This was the situation in Ukraine in 2001. While such decision can never be easy and needs to take into account all the realities of the country it would be good to make a balance of provisions.
There are three main kinds of provisions.
1.    Some provisions could really make situation worse than before (for example, obligatory smoking rooms in all buildings or obligatory messages on tobacco packs “Not for sale to minors”).
2.    The others have no value for public health (like strong tar and nicotine limits) or very limited value (ban of vending machines in a country where they do not exist). 3.    However, strong provisions could also exist. If there is at least one strong provision, which has high chances for implementation and can increase public awareness of tobacco related harm (like increase of health warning size to 30% or ban of outdoor advertising), such draft law could be worth supporting.

It is difficult to compare weight of different provisions and every country can have its own priorities. The final score will be defined not by calculations, but by intuition. In case there are some strong provisions saved and the general balance is positive it is necessary to claim which provisions you do support and which strong provisions are missed and need to be amended later.
But if the balance is almost zero (to say nothing about negative balance) it is better not to give decision makers an illusion that they care for public health and not to support the law which can not decrease smoking level. May be it is better to wait for new elections and look for more ambitious and committed politicians.

Compromises – bottom-line or extremism?

As the compromises in tobacco control legislative process are inevitable it is better to be prepared. There are two general approaches to compromises: 1) “bottom-line” – to define from the beginning the lowest point of compromise and refuse to support draft law if it is below this point; 2) “extremism” – to present very strong provisions, which are not reasonable for the current situation or cannot be properly enforced, and to sacrifice them for compromise.
The intention to define very clearly which provisions need to be included into the draft law to be supported by tobacco control advocates seems rather reasonable. However there are few problems. Tobacco control law usually has several provisions and we wish to have all of them strong. It is very difficult to decide which of them are absolutely critical and which are subject of compromise. Tobacco control advocates usually are not strong enough to dictate to decision makers, which can have their own priorities on provisions. If the “bottom-line” is defined, you can be easily pressed to give up those provisions, you were ready to give up. From the other side, if tobacco control advocates bottom-line for every provision is known, tobacco industry can find weakest chain in their position and concentrate its lobbying efforts to make the draft law to cross the bottom-line in this very point. In such situation tobacco control advocates have two bad choices: 1) do not support draft law any more, even if it has some strong provisions; 2) to reconsider bottom-line, which means that they do not have clear position and can give up other provisions as well.  So it is better to be creative and fight for every strong provision and not to give up if at least one of them is saved.
Good compromise requires that both sides give up some of their demands. In such situation the intention to include into your draft law some extreme provisions (like very short or no time lag for enforcement of such provisions as health warnings or advertising ban), to give them up later in exchange for acceptance of your other provisions by the other side.

Compromise – with decision makers or with tobacco industry?

However sides are not just health advocates and tobacco industry, more often a decision maker is a side, which discusses compromises with advocates and industry separately. As a decision maker has legislative power he or she is not obliged to make any compromises. So your argumentation and image are more important than willingness to compromise. It is better to prepare best provisions for tobacco control law, which seems to you most relevant at present for this very country and support them without any willingness to compromise. Decision maker can eventually compromise some of your provisions, but you can hardly suggest which ones. If you present at least one extreme provision your opponents will use it as example to make you image of “extremist” and to persuade decision makers to ignore all your provisions.
Instead of proposing some of your provisions for sale it is better to make provisions of your opponents unacceptable. Tobacco control advocates should anticipate arguments of opponents and prepare their counter-arguments well in advance to arm decision makers before his or her meeting with your opponents. Efforts to worsen their image to make decision maker not to accept any compromise with tobacco industry is also a good tactics.

Comprehensive law or provisions in other laws?

International experience shows that this question does not have easy answer. In some countries like Finland or Poland comprehensive tobacco control law was rather successful. In other countries like Hungary and UK strong tobacco control provisions (advertising ban, health warnings, etc.) are special “small” laws or included in other laws.
Comprehensive law can cover most of tobacco control issues and provide synergy to various provisions. However opponents of every provision are united in such case and for comprehensive law chances to be adopted are lower.
It is necessary to take into account that comprehensive law and its amendments are usually prepared by health authorities (Ministry of Health and/or Parliament Health Committee), while in preparation of other laws health authorities have rather limited influence.
Ukrainian experience revealed that absence of comprehensive tobacco control law can be used by tobacco industry to include some provisions, which look like tobacco control into other laws. While it is possible to amend these laws from the public health position, it is rather difficult. For example since 1996 there were several attempts to include tobacco advertising ban into the Advertising law in Ukraine. In all cases the Parliament Media Committee, which presents final draft law for voting, refused to include tobacco advertising ban into amendments. In Poland in 1999 comprehensive tobacco control law was amended by tobacco advertising ban and it was perceived as natural development of this law.

Contradictions on legislation within the tobacco industry: pros and cons for tobacco control

General interest of tobacco industry is an increase of tobacco consumption, which is totally opposite to the public health interest. It means that there could be no consensus between public health advocates and tobacco industry on key legislative provisions. However, when tobacco market is not controlled by a monopoly, tobacco companies try to use legislation for competition purposes. We have seen many examples in Ukraine when they use public health arguments to cover their commercial interest. Draft law of Mr. Shevchuk (see above) included provision, that number cigarettes in a pack should be neither more, nor less then 20. While limiting lower number is quite justified by public health arguments (small packs designed for young experimenters who often do not have enough money to buy pack of 20), the upper limit does not have such justification. When asked about it, Mr. Shevchuk said that bigger packs are used for advertising, while there are no proofs that those who buy packs of 25 smoke more. The real reason of this legislative provision was that the Philip Morris-Ukraine (sponsor of Mr. Shevchuk foundation) produces cigarettes only in packs of 20, while some competitors produced packs of 18 and 25. When discussing tax policy Philip Morris and JTI argued that ad valorem tax is worse than specific one, because it encourages consumption of cheap, allegedly more harmful cigarettes. In reality Philip Morris and JTI prevail on the market of expensive cigarettes, while BAT and other competitors mainly produce cheap cigarettes and for such cigarettes ad valorem tax is more profitable.
Tobacco control advocates should be very careful, when they hear different arguments on tobacco control legislation from different tobacco industry companies. There is always some commercial interest behind these arguments and it should be revealed to make decision makers aware about it. Tobacco control advocates also have a difficult choice which side of tobacco industry to support. In some cases both sides are wrong. For example the discussion about pros and cons of ad valorem and specific taxes was used by tobacco industry to hide the real problem – very low general tax rate in Ukraine. In other cases we should be honest and not to support provisions which do not have proper justification (like upper limit of cigarette number in a pack). There are also some cases when we can try to use contradictions between tobacco companies to reduce their resistance. For example some local tobacco factories usually are not able to meet strong tar and nicotine limits and they can persuade MP from their constituency to fight hard against tobacco control legislation. If tobacco control advocates make these limits not so severe (or delete them at all as they have no public health value) and present it as a compromise, it would be possible to reduce resistance of that MP.
Position of tobacco companies on tobacco control legislation in general also can be different. It is known that Philip Morris publicly supported idea of FCTC, while BAT was against it. In Ukraine Philip Morris also tried to present its own version of tobacco control legislation (see Shevchuk’s law above). Philip Morris tries to present itself as socially responsible company, which can be a partner to health authorities. However it never was an initiator of legislative provisions, which could effectively reduce tobacco consumption. When comparing two draft laws in Ukraine – Health Committee (actually Philip Morris) and Finance Committee (other tobacco companies) the first one looks better for public health (at least at first sight). It has bigger health warning, more smoking restrictions, etc. However it also has counterproductive provisions (like message “Not for sale to minors”) and competitive measures (like strong tar and nicotine limits), which for inexperienced person look like public health provisions. Careful analysis reveals that the public health value of these two draft laws is so small, that it is no sense to cooperate with some tobacco companies believing that they are more “progressive” than others. In reality they are not more progressive, but more hypocritical.

Who is the real author of legislation: politician or advocate?

In policy world official author of some draft law usually only gives some idea of new law, while real text is usually written by some advocates or experts. In many cases such advocates are also authors of the law idea and official author only gives his name and support. In such situation there is a strong intention to prepare best draft law and then find some MP to introduce it. The reality of legislative process is that draft text is a very important step, but just the very first step. In Ukraine to become law after official introduction a draft law has to pass the following stages:
1)    to be considered by relevant parliament committee and get recommended to be included to the parliament agenda for the first reading;
2)    to be adopted at first reading;
3)    all amendments, which every MP can present should be considered and new draft to be prepared for the relevant Committee session (at this stage first draft can be changed totally, for example from strong to weak one, as it happened in Russia in 2000);
4)    to be supported by the Committee which adopts final version for the second reading;
5)    to be considered at the general parliament session (at this stage those MPs whose amendments were declined by the relevant Committee can insist on voting their amendments);
6)    if adopted at second and third (usually just technical or editing reading) by the parliament the law has to be signed by the President;
7)    if the President issue a veto the draft law returns to the parliament and it can either overcome veto by 2/3 majority or reconsider the draft taking into account the President’s arguments, adopt new version by simple majority and send it for signature again;
8)    if signed by the President the new law enters into force after official publishing.
On every stage the law can be stopped and on some stages it can be changed. To save strong law its official author needs to have strong commitment, will and influence. A person who managed to make draft law pass all these eight stages is a real author of the law even despite the fact that he did not write its first version.
To find such politician it is better to contact as many MPs as possible, for example by sending them letters. When at least one MP (or minister) shows clear interest it is possible to discuss with him or her possibilities of draft law introduction.
Advocates should involve this politician into process of draft law preparation to make this person better understand the ideas behind the text, but not just give him ready text to sign. Advocates need to organize support to the draft law by the public and other politicians. They should praise a politician at every success and encourage him to move process at every delay.
However it is also important for advocates not to be abused by the politician. It is dangerous to make tobacco control connected with only one political party (especially if it is not a governmental party), as MPs from other parties could vote against tobacco control law just to fight this very politician. Tobacco control cannot contradict a program of any political party and all of them can be involved.


So what is a tobacco control legislation process?
It is science, because the legislation needs to be based on the recent research of the policies effectiveness. It should be ready to accept new results and change positions on some provisions, sometimes rather dramatically. All arguments should have scientific background to be accepted by decision makers and the public.
It is art, because it is not possible to conduct every research in every country and situation in every country is rather specific to base all kinds of policies on research results from other countries. Anyway to prove some policy is right or wrong some country has to invent and try it.
It is sport, because effective tobacco control legislation always has opponents – tobacco industry and its allies. Like in sports we do not hate persons from other team, we just play to win. And while we believe that tobacco control eventually win, the result of legislative process in every country depends on tactics advocates use and understanding the tactics tobacco industry uses. As in sports good players are not enough, good coach who can think strategically and provide advices is also needed. In tobacco control such coach can be international and collective.
It is ethics, because to win tobacco control process advocates should believe they do all this work not just for themselves, but for health of people they will never meet, for public health.

The experience of Ukraine and other countries shows that effective tobacco control legislation would hardly be adopted at once. Usually many attempts and many years are needed to reach even modest success. But all those who are ready to learn, to create, to fight and to believe will be successful tobacco control advocates.