Sanctions
Administrative / regulatory liability
- Fines
- License suspension or revocation
- Compliance and corrective orders
Must be effective, proportionate, and dissuasive.
The Liability Framework under Article 19
Framework- An Illustrative Overview
WHO FCTC – Article 19
“...Parties shall consider taking legislative action...to deal with criminal and civil liability, including compensation where appropriate.”
Not limited to courts. Any mechanism a party considers appropriate falls within scope.
Track 1
Judicial track
Court-based proceedings
⇄
Track 2
Extrajudicial track
Beyond the courts
Both tracks can yield binding, compensatory outcomes and are not mutually exclusive. Strengthening who can bring claims also strengthens accountability across all mechanisms.
Civil society and victim capacity are cross-cutting enablers for both tracks, expanding who can bring a claim.
How Extra-Judicial Approaches Operationalize the Framework
2) Mechanisms: how liability is imposed
Fiscal Instruments
Legal obligations
- Taxes and levies
- Polluter-pays charges
- Bonds and financial assurance mechanisms
- Cost recovery schemes
Must be substantial enough to internalize harm.
Compensation Mechanisms
Financial liability
- Cost recovery schemes
- Trust funds
- No-fault compensation models
Liability of polluters in environmental law: an example
Polluter Fee
Charge on harmful conduct, calibrated to harm cost.
EcoTax
Tax internalizing pollution costs. Paid upfront, not suspended by appeal.
Superfund
Industry-funded clean-up pool. Covers costs even after bankruptcy.
Liability measures under Article 19 must not legitimize the tobacco industry’s misconduct or provide any benefit to the industry, including through mechanisms that could be used for corporate social responsibility purposes.
Liability Measures under Article 19 (WHO FCTC) — Illustrative Overview
Extra-judicial approaches to implementing Article 19 (Liability)
This visual summarizes one extra-judicial accountability framework. Click the boxes to open the detailed examples, standards, and implementation notes behind each part of the model.
Extrajudicial Accountability Framework
Part 1 — Institutional Context: Access Infrastructure
Forums are only as strong as the measures they apply. Access to justice does not guarantee accountability.
Part 2 — Liability Mechanisms: How Liability Is Imposed
Industry pays
Article 5.3 — the industry does not govern, communicate, or benefit
Require information · Prevent conflicts of interest · Deny benefits · Denormalise CSR
Judicial track (litigation) addressed separately — see WHO FCTC Article 19 Civil Liability Toolkit
Sources: WHO FCTC Expert Group Report FCTC/COP/6/8 (2014) · Colombia Law 1335/2009 · India NGT Act 2010 · EU Directive 2019/904 · Netherlands Afvalfonds Verpakkingen · Finland Pirkanmaa ELY Centre · COVAX No-Fault Compensation Programme · Canada CCAA Settlement, Ontario Superior Court, 6 March 2025
Key Design Considerations for Implementation
The framework above requires careful design to ensure that liability measures are effective, enforceable, and protected from industry interference.
A further extrajudicial forum not shown in the visual above: anti-corruption and financial-regulatory bodies can order disgorgement of illicit gains and apply multiplier-type financial sanctions without waiting for criminal conviction.
- Covers misconduct including: marketing to youth, bribery of officials, concealment of harms.
- Mandatory lobbying and political contribution disclosure generates the evidence base for disgorgement orders.
Article 5.3 safeguard required: Mandatory lobbying and political contribution disclosure.
The Polluter Fee, EcoTax and Superfund examples above illustrate Environmental Pollution Levy (EPL) instruments — charges that the industry pays for actual environmental harm. These are fiscal instruments and are distinct from Extended Producer Responsibility (EPR).
EPR is a separate regulatory obligation under environmental law — not a fiscal instrument and not a liability mechanism in itself:
- Correct model — Netherlands, Germany, Republic of Korea, Finland: industry pays into a government-administered fund. Government manages and implements. Industry has no governance role.
- Risk — France (ALCOME) and others: EPR delegated to industry-managed schemes becomes CSR. Industry designs campaigns, governs funds, builds public legitimacy. Directly violates WHO FCTC Article 5.3 and Article 13.
Article 5.3 safeguard required: Deny industry any involvement in awareness campaigns, fund governance or eco-organisation leadership.
Each mechanism in the visual above requires a corresponding Article 5.3 safeguard to prevent the tobacco industry from hollowing out the accountability measure before it can function:
- Sanctions (health regulator): conflict-of-interest rules for regulatory officials; prohibit industry participation in standard-setting and rulemaking.
- Fiscal instruments (tax / finance authority): mandatory disclosure of production volumes, plastic content and revenue to set levy levels accurately and prevent under-declaration.
- Compensation mechanisms (adjudicatory bodies): financial guarantees and bonds must be pre-deposited before products enter the market to prevent restructuring or insolvency evasion after judgment. The Canada CCAA case (CAD$32.5B settlement, March 2025) illustrates why: the 2019 Quebec Court of Appeal judgment was immediately followed by insolvency filings from all three companies.
- Environmental / EPL measures: deny industry any governance role in funds or awareness campaigns.
- All mechanisms: prohibit the use of any accountability measure as a basis for corporate social responsibility (CSR) activity or industry self-promotion.
For accountability to matter, any liability-type tool must produce consequences paid promptly and on a scale that reflects real harm — not just levels the industry finds affordable. This applies to all mechanisms above.
Accountability without Article 5.3 governance is accountability in name only: the industry will use every available avenue — EPR greenwashing, CSR campaigns, regulatory capture, lobbying, bribery — to hollow out any accountability mechanism before it can function.