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Taking a Lesson from the Tobacco Ad Ban to Shut Down Fossil Fuel Greenwashing

   

 The Equation Read More 

When was the last time you turned on the television and caught an ad for cigarettes? Depending on where you are in the world—and if you’re young enough—you may be scratching your head that tobacco companies were ever allowed to advertise on TV. It’s another head-scratcher that Big Oil, an industry at least as deceptive and destructive as Big Tobacco, can still use the magic of advertising to sanitize, socialize, and sell its products. But this may not be the case forever.

This month, UN Secretary-General António Guterres called for a ban on advertising by fossil fuel companies, invoking the ban on tobacco ads as a relevant precedent. Member states of the UN’s specialized health agency—the World Health Organization—included a comprehensive ban on tobacco advertising, promotion, and sponsorship in the Framework Convention on Tobacco Control (WHO FCTC). The treaty, in force as international law for nearly 20 years, now binds 183 parties, protecting more than 90 percent of the world’s people.

So what can we learn from the ban on tobacco advertising, promotion, and sponsorship that may be relevant to tackling the fossil fuel industry-driven climate crisis? Based on my experience, including as a civil society observer in the tobacco treaty negotiations: a lot.

Let’s consider why this measure was included in the global tobacco treaty, what tactics and entities it covers, how it came about, how it connects with and depends on measures to protect public policy from vested commercial interests, and what those of us working to hold the fossil fuel industry accountable for climate deception and damages can learn.

The tobacco industry is the vector of a preventable epidemic that kills millions of people around the world each year. Corporations such as Philip Morris International, British American Tobacco, and Reynolds American have used advertising, promotion, and sponsorship to addict new customers—youth in wealthy countries like the United States, women in countries where they hadn’t smoked, and of people in low- and middle-income countries.

Insidiously effective imagery used to hawk cigarettes included the infamous Marlboro Man—dubbed “a perfect symbol of independence and individualistic rebellion” by its creator; the notorious Joe Camel cartoon character designed to appeal to kids; the “Torches of Freedom” campaign promoting Lucky Strikes to women, developed by Edward Bernays (known as the father of modern public relations); and sponsorship of women’s tennis by Virginia Slims with the slogan “You’ve Come a Long Way, Baby,” ironically proclaiming equal access to tobacco-related addiction, disease, and death.

Robust evidence backs a tobacco ad ban: it is well documented that tobacco advertising, promotion and sponsorship increase tobacco use, while comprehensive bans decrease it. Several countries, including South Africa and Thailand, had banned tobacco advertising before there was a global tobacco treaty, and their experiences informed the negotiations.

At the time the tobacco treaty was negotiated, the tobacco industry used a wide range of promotional tactics—including billboard and magazine advertising, point of sale ads and displays, “brand stretching” (use of tobacco logos on non-tobacco products such as T-shirts and baseball caps), sponsorship of sporting events such as Formula One racing and women’s tennis, and product placement in movies and TV.

The treaty defines tobacco advertising, promotion, and sponsorship expansively to avoid loopholes the tobacco industry could exploit. Thus, a comprehensive ban on all tobacco advertising, promotion and sponsorship applies to all forms of commercial communication, recommendation or action and all forms of contribution to any event, activity or individual with the aim, effect, or likely effect of promoting a tobacco product or tobacco use either directly or indirectly.

Informed by civil society, treaty negotiators understood that if only certain forms of direct tobacco advertising were prohibited, the tobacco industry would inevitably shift its strategies. The guidelines for treaty implementation warn that—while it may be useful to give examples of prohibited activities—legislation should avoid providing lists that could be seen as exhaustive.

Importantly, the treaty guidelines also specify that corporate promotion by tobacco companies—even without brand names or trademarks—is a form of promotion of tobacco products or tobacco use. Recognizing that “it is increasingly common for tobacco companies to seek to portray themselves as good corporate citizens by making contributions to deserving causes or by otherwise promoting ‘socially responsible’ elements of their business practices,” the treaty guidelines recommend banning tobacco industry public education campaigns.

Note the clear parallel between the tobacco industry’s “youth smoking prevention campaigns” and today’s ubiquitous greenwashing ad campaigns from fossil fuel giants ExxonMobil, Chevron, BP, and Shell touting their “low-carbon solutions” (which are too little, too late).

Nation-states are ultimately responsible for safeguarding public health and a stable climate. Treaties like the UN FCCC and the WHO FCTC first and foremost bind countries.

The FCTC was groundbreaking in several ways. Not only was it the first legally binding treaty negotiated under the auspices of the WHO, it also established legal obligations for countries to hold corporations accountable. It built on the WHO’s experience and lessons learned from efforts to limit the abusive and deadly promotion of infant formula to mothers in the Global South through a voluntary code of marketing for breastmilk substitutes.

The WHO FCTC identifies the tobacco industry (including tobacco manufacturers, wholesale distributors, importers, retailers, and their agents and associations) as primarily responsible for tobacco advertising, promotion, and sponsorship—and therefore as the primary objects of the ban.

And the treaty guidelines recognize that other entities involved in tobacco advertising, promotion and sponsorship should also be held responsible. Plainly, the media is a key enabler of advertising, promotion, and sponsorship of any product, brand, or corporation. Thus, the ban also encompasses persons or entities that produce or publish media content, as well as event organizers, sports stars, and other celebrities.

The tobacco treaty has a carveout for any state party that is “not in a position to undertake a comprehensive ban due to its constitution or constitutional principles.” But even in countries with strong free speech protections like the First Amendment to the US Constitution, governments have a right—indeed an obligation—to curtail speech that is harmful.

Regardless of constitutional limitations, parties to the global tobacco treaty are required to “prohibit all forms of tobacco advertising, promotion and sponsorship that promote a tobacco product by any means that are false, misleading or deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions.” In other words, free speech protections are not a license for fraud.

Countries that claim their constitutions don’t allow a comprehensive tobacco ad ban must also require health warnings describing the harmful effects of tobacco use, consistent with those required on product packaging. Evidence shows that effectiveness of health warnings increases with their prominence—which is why graphic warnings are now required on tobacco products in 138 countries and territories.

Ironically, the United States, which lobbied forcefully for the constitutional carveout, is not a party to the WHO FCTC. Nonetheless, the United States eliminated some forms of tobacco advertising through the 1998 Master Settlement Agreement with 52 state and territory attorneys general. The settlement prohibited tobacco advertising, promotion, and sponsorship that targets youth; the use of cartoons; tobacco-branded merchandise; and payments for tobacco product placement in media.

US Food and Drug Administration regulation of tobacco products, enacted in 2009, mandates graphic health warnings on cigarette products and advertisements—but the tobacco industry has delayed implementation through a prolonged legal battle. A recent appeals court ruling affirmed that the warnings are “factual and uncontroversial.”

US Surgeon General Vivek Murthy recently extended the idea of warning labels as a public health protection measure with his proposal for a warning label on social media platforms as a means to address the youth mental health crisis.

In light of clear evidence of the dangerous and deadly effects of fossil fuels, a few jurisdictions around the world have restricted fossil fuel advertising or banned particular ad campaigns, and lawsuits against fossil fuel corporations over deceptive and misleading communications to consumers and investors are gaining momentum.

The ban faced fierce and sustained opposition—particularly from Global North countries that are home to the world’s largest and most profitable transnational tobacco corporations: the United States, Japan, and Germany.

Nations of the Global South—from Africa, the Middle East, Southeast Asia, the Pacific and Caribbean Islands—banded together to overcome bullying by wealthy nations and tobacco industry interference and insist on a strong treaty to prevent the export of a preventable epidemic. This dynamic will be familiar to anyone who has followed global climate negotiations under the United Nations Framework Convention on Climate Change (UN FCCC).

The inclusion of an ad ban in the global tobacco treaty went hand-in-hand with another precedent-setting provision: Article 5.3, which obligates parties to protect their public health policies from interference by commercial and other vested interests of the tobacco industry. Today, Article 5.3 is a cornerstone of treaty implementation and enforcement. [Full disclosure: the organization I previously led, Corporate Accountability, joined with allies in the Network for Accountability of Tobacco Transnationals to center this measure in our advocacy. In 2008 I was the sole civil society representative in the room when parties finalized negotiations on the implementation guidelines.]

Without this obligation, states parties would have faced much stiffer opposition—in the form of tobacco industry lobbying and “corporate social responsibility” campaigns—to the adoption and enforcement of comprehensive bans on tobacco advertising, promotion, and sponsorship.

The UN FCCC does not have protections like those in Article 5.3 of the WHO FCTC against corporate conflicts of interest—at least not yet. But thanks to civil society organizing, we finally have a measure of transparency. After new rules requiring participants in the global climate talks to disclose who they represent took effect last year, we saw record numbers of fossil fuel industry lobbyists at COP28 in Dubai, United Arab Emirates. This year’s talks in Baku, Azerbaijan—another oil-producing country—promise more of the same.

Like the tobacco epidemic, the climate crisis is a matter of life and death, and the death toll is rising. The best way to save lives is to reduce global warming emissions as quickly as possible—and accelerating a fair phaseout of fossil fuels is essential to turn the emissions curve downward.

As we in the United States plunge into another Danger Season of extreme heat, fire weather, and storms, scientists and activists are mobilizing in a Summer of Heat on Wall Street. Campaigns like this are exactly what’s needed to push political leaders in the United States and worldwide to confront the drivers of the climate crisis. Innovative approaches such as protecting international climate talks from fossil fuel industry interference and banning advertising, promotion, and sponsorship by fossil fuel corporations and their surrogates could be part a suite of urgently needed actions. We no longer have time to tinker around the edges. We must finally address the root cause of the climate emergency: the fossil fuel industry and its enablers.

 

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