Vietnam: The Tobacco Industry In Vietnam

Overview: The tobacco industry is as controversial in Vietnam as it is elsewhere. The industry creates inherent conflicts. Firstly, the Government holds a monopoly on cigarette production. At the same time, the Government regulates the industry. Vietnam recognizes clearly the health hazards of smoking. However, the industry also creates and maintains direct jobs for 15,000 people. The other reality is that the industry contributes approximately US$350 million annually to the state budget, and in this respect, it ranks second only to the petroleum industry.

Vietnam's total market size for cigarettes in 2005 was 68 billion sticks which consisted of 65% Vietnamese products, 25% foreign products made in Vietnam by Vietnamese manufacturers and 10% illegally imported products. The 2006 market size was 69 billion sticks, and sales will top 70 billion in 2007.

Key players and management bodies: The tobacco industry includes 16 Vietnamese cigarette manufacturers. Although the Government holds a monopoly on cigarette production, each player reports to a different management body. For example: Vietnam National Tobacco Corporation ("Vinataba") reports to the Ministry of Industry ("MOI"); Haiphong Tobacco Company ("Haiphong") and Binh Duong Tobacco Import-Export Company ("Binh Duong") reports to the Communist Party; Saigon Industry Corporation ("SIC") and Khanh Viet Corporation ("Khatoco") report to provincial People's Committees, etc. Generally, the MOI is responsible for management of the tobacco industry. In practice, the voices of the Communist Party and provinces are strong and influential. See organizational chart at Appendix 1.

In addition to the 16 Vietnamese players, there are two foreign invested enterprises that produce tobacco products: (i) Vinasa Can Tho--a 49/51 joint venture between Philip Morris Inc ("PMI") and Vinataba that produces cigarettes and (ii) British American Tobacco–Vinataba--a 70/30 joint venture--that produces shredded tobacco. Only three foreign tobacco companies [British American Tobacco ("BAT"), PMI and Japan Tobacco Inc. ("JTI")] are licensed to distribute foreign cigarettes made in Vietnam. These cigarettes are manufactured by Vinataba under manufacturing contracts.

State's monopoly on cigarette production: Reference to the state's policy on tobacco monopoly is mentioned in various regulations--mainly in Resolution 12², Decree 76³ and Notice 12⁴. Decree 76 (Article 2) provides that "the Government shall exercise unified management of cigarette production and monopolize cigarette production; the Vietnam National Tobacco Corporation shall play the core role in implementing this policy". Moreover, Notice 12 indicates that the Government has no plan to equitize state-owned enterprises that produce cigarettes.

Historically, Vinataba attempted to merge all players under its umbrella. Even though the MOI has supported Vinataba, this attempt has so far failed due to strong objection from both local governments and from provincial factories that are the key contributors of tax revenue to local governments.

It seems too early to reach a conclusion on Vinataba's long term role and its further position in the industry. In the near term it seems clear that it will continue to keep its dominant position. Notice 12 provides that Vinataba is a state-owned enterprise being a key unit of production, trading, import-export and distribution of tobacco products⁵. As set out in Notice 12, the Government has recently agreed that Vinataba will discuss and agree with other state-owned tobacco manufacturers in order to set up a national tobacco group on a voluntary basis⁶. Vinataba's dominance is demonstrated in many ways. Among other things, all three foreign tobacco companies cooperate with Vinataba.

Given the fact that the state retains a significant role in some special economic sectors like tobacco, co-operation with state-owned enterprises will be important as they influence central and local authorities to facilitate licensing and overcome bureaucratic resistance.

Industrial requirements for cigarette production: The law requires a tobacco manufacturer to have a cigarette-manufacturing license. The conditions to establish a cigarette manufacturing entity and to receive a cigarette-manufacturing license can be found in Decree 76.

According to Decree 76, there will be no new joint ventures with foreign investors for cigarette production, except for projects that satisfy the following conditions⁷:

(i) the Vietnamese enterprise's stake must be at least 51%;

(ii) the resulting entity must export the cigarettes produced; and

(iii) the project has been proposed by the MOI and approved by the Prime Minister.

The tobacco industry is considered a special sector. It is on the list of conditional projects subject to approval of the Prime Minister. Nevertheless, there is an important rule in the 2006 Investment Law. That is, international agreements will prevail if there is any discrepancy between Vietnamese law and international agreements to which Vietnam is a signatory. See our discussion below.

Exception under international agreements: According to the Vietnam-US Bilateral Trade Agreement ("VN-US BTA") and the Vietnam-Japan Agreement on Investment Encouragement and Protection, Vietnam agrees that on 21 December 2008⁸, it will eliminate the export requirements mentioned above for US and Japanese tobacco investors. Even so, it may be a long time before US and Japanese investors can obtain necessary licenses to manufacture cigarettes in Vietnam. There will be many hurdles to overcome; for example the capped production capacity⁹ set out by the MOI, objections from the Ministry of Health ("MOH") and from local manufacturers, etc. Notwithstanding the rules set forth in international agreements, in practice, the implementation of international agreements may be difficult because Vietnam may insist on protecting its local production. Vietnam may cite examples of protectionism and acts of its trading partners: anti-dumping measures taken in the US (eg, catfish and shrimp) and in the EU (eg, lamps, bicycles, shoes, etc.) Vietnam may act similarly in similar circumstances.

Framework Convention on Tobacco Control: Among all international agreements, only the FCTC recognizes the harmfulness of tobacco products. Vietnam, a WHO member, ratified the Convention in November 2004; ie, it was one of the early signatories. Following its ratification, Vietnam took action to comply with the FCTC. For example: Vietnam has issued restrictive regulations on tobacco promotion and advertisement, health warnings, labelling, etc.

The World Trade Organization: Vietnam applied for WTO membership in 1995, and in January 2006 became the 150th member. As a result of its admission to WTO, Vietnam must comply with WTO rules on trade. Tobacco is not an exception.

According to the specific commitments that Vietnam has made to WTO members, the direction and policy for liberalizing the tobacco industry is promising.

• Elimination of import prohibitions

The importation of cigars and cigarettes has long been prohibited¹⁰. Under WTO's rules, this prohibition must be eliminated. In the Report¹¹ of the WTO accession working party, Vietnam re-confirmed that it commits to eliminate the prohibition on imports of cigars and cigarettes upon accession,¹² and this commitment is reflected in an Inter-circular No 01/2007/TTLT of the MOI and the Ministry of Trade ("MOT") dated 10 January 2007 ("Inter-Circular 01").

It is likely that competition among foreign tobacco companies and local tobacco companies will increase. Accession may provide an opportunity for foreign tobacco companies to introduce and launch new international brands, a practice that has been prohibited since Decree 76 came into effect in 2001.

• Trading and distribution rights

Although Vietnam commits to grant trading rights¹³ to foreign companies for most goods, it restricts the right to trade in sensitive goods such as tobacco. Under Inter-circular 01, Vinataba is appointed as a sole importer of all cigars and cigarettes for a period of three years. After the three-year period expires in January 2010, the Government will re-consider, and it may authorize other state-owned enterprises to import cigars and cigarettes.

The appointment of Vinataba as a sole importer of all cigars and cigarettes is certainly controversial, and will probably intensify its conflicts of interest. Firstly, Vinataba is a state-owned enterprise that engages in the production and distribution of domestic cigarettes; at the same time Vinataba is responsible for importing and wholesaling imported cigarettes. In this respect, Vietnam confirmed that "from the date of accession, the import ban on cigarettes and other manufactured tobacco products would be eliminated and replaced with a production quota that includes imports. The domestic production quota would be reduced by the quantity of cigarettes imported. A State-trading enterprise would provide access to Viet Nam's market for manufactured tobacco products, including cigarettes, in accordance with WTO provisions, and would operate in a transparent and non-discriminatory manner"¹⁴. Despite the language of this commitment and only partly as a result of the conflict, there will be many hurdles to overcome before an international cigarette brand can occupy a significant market share. For example: the MOI caps production from time to time; there are restrictive regulations on marketing activities; there are smuggling issues, pricing competition, etc.

• Tariff quota regime

Vietnam has narrowed considerably the number of products subject to tariff quota and has limited the application of tariff quotas. However, non-manufactured tobacco (ie, tobacco leaf and stem coded HS 2401) remains subject to tariff quotas.

According to its undertaking, Vietnam commits that the allocation of quota will be based on historical import performance, and the annual growth rate for quota volume is 5%. As of the date of accession, quota volume was set at 31,000 metric tonnes per annum.

Note that under current regulations, import tariffs imposed on tobacco leaf and stems are 30% and 15% respectively. However, the 30% and 15% import tariff will be increased for non-manufactured tobacco that is imported out-of-quota, to 100% for tobacco leaf and 80% for tobacco stems.¹⁵

Import permit: Vietnam applies an import licensing regime on tobacco machines, cigarette paper and shredded tobacco. Despite WTO membership, it is likely that Vietnam will continue to apply the import licensing regime for those items. It serves the Government's purpose to control tobacco production and consumption. Subject to the production capacity of each enterprise and of the entire industry, the MOI issues import permits for those tobacco items. As a result, new players and new competitors face a barrier if they want to expand production.

Vietnamese taxes: The main taxes that affect a foreign tobacco manufacturer are: (i) special consumption tax ("SCT"); (ii) import duties; and (iii) value added tax ("VAT"). We do not discuss each of those taxes in detail in this paper. Briefly, Vietnam will probably continue to increase the SCT as it gradually reduces import duties which it is obliged to reduce according to its international commitments and agreements. It applies the same VAT rates to both local and foreign entities. See our summary below:

• SCT rate: The following table describes the SCT rates (effect from 1 January 2006)
  

  Cigars, cigarettes:	Tax rate
  Cigars	65%
  Cigarettes
  - From 2006 to 2007	55%
  - From 2008	65%

• Import tariff: Depending on each kind of goods as identified in the HS code, the preferred tariff rate¹⁶ varies from 3% to 150%; for example: the preferred tariff rates imposed on certain tobacco items are: cigars and cigarettes (150%), tobacco leaf (30%), stems (15%), shredded tobacco (30%) and cigarette papers (30%). In addition to the preferred tariff, Vietnam also accords a better tariff to certain goods which originate from a country that has a trade agreement with Vietnam (eg, ASEAN Free Trade Agreement ("AFTA"), China-ASEAN Agreement, etc). As long as Vietnam retains tobacco on the general exclusion list ("GEL"), no tax reduction will apply to tobacco under such agreements. However, there are certain wrapping/packaging materials subject to tax reductions under AFTA and the China-ASEAN Agreement.
• VAT: There are three rates: 0%, 5% and 10%. In most cases, the common rate is 10%. The 0% rate will apply to exported products, and the 5% rate will apply to imported tobacco leaf (HS coded 2401) at the import stage. For more details, see the example in the section below, Import duties under Vietnam's WTO commitment
• Import duties under Vietnam's WTO commitment

Vietnam promised that its ceiling ("bound") import duty rate will not exceed 150%. This will require some reduction and the reduction will be phased in over time up to 2012. The precise end date varies from item to item. The final bound import duties range between 100% and 135%.

Due to high import duties, it will be difficult for imported cigarettes to compete on the basis of price. See our example below:

In 2007, an importer intends to import cigarettes with the following assumptions:

• CIF price: US$0.5 per pack
• Import duty: 150%
• SCT: 55%
• VAT: 10%

The total amount payable by the importer will be determined as follows:

(a) Payable import duty = CIF x tariff
= US$0.5 x 150% = US$0.75

(b) Payable SCT = Tax calculation price x import duty= (CIF price + import duty) x rate
= (US$0.5 + US$0.75) x 55% = US$0.69

(c) Payable VAT = Tax calculation price x rate = (CIF + import duty + SCT) x rate
= (US$0.5 + US$0.75 + US$0.6875) x 10% = US$0.19

(d) Total payable per pack (after-tax) is equal to: (a) + (b) + (c) + CIF = US$2.13

Tax stamp: By Decision 175/1999/QD-TTg of the Prime Minister dated 25 August 1999, Vietnam introduced a rule to require tobacco manufacturers/importers to affix a tax stamp on each cigarette pack before cigarettes can be circulated in the market. This reflects the Vietnamese Government's efforts to combat illicit trade and tax evasion. Based on the volume of tax stamps sold to tobacco manufacturers/importers, the tax authorities will determine the special consumption tax. Of note, the law does not require a tax stamp on exported tobacco products, but imported tobacco products must have tax stamps.

Cigarette-trading license and distribution rights: Tobacco is a conditional product. By that we mean that tobacco product traders must meet certain conditions. The law requires a local entity to have a license¹⁷. The MOT is the license-issuing agency for traders whose distribution areas include more than two provinces. The provincial Service of Trade grants licenses for local traders whose distribution area is within a city or province only. Beyond that, distributors and agents must comply strictly with purchase and distribution areas as specified in their licenses.

Resolution 12 provides that the State shall control the circulation and consumption of cigarettes in the market. Step by step, it may monopolize the wholesale of tobacco products, and it must strictly control the retail sale of tobacco products. While the State is authorized to do so, to date it has not monopolized distribution.

We note that Vietnam's commitment to grant distribution rights¹⁸ to foreign companies, expressly excludes cigars and cigarettes. To date, only three foreign tobacco companies--BAT, PMI and JTI--are licensed to distribute, and the license is restricted to cigarettes made by Vinataba in Vietnam. Moreover, their licenses will expire in June 2008. Vietnam will "probably" renew the licenses for the three foreign tobacco companies. Among other reasons, the US and Japan have a broad commercial impact on Vietnam in terms of providing ODA, purchasing Vietnamese products, and for other reasons. We use the term "probably". The reason is that in the past, the licenses of BAT and PMI were extended only for three or six months and the last renewal extended their licenses only until June 2008. The matter of renewal remains open. In theory, Vietnam is entitled not to renew licenses for the three foreign tobacco companies; failure to renew their licenses will not violate Vietnam's commitment to WTO members.

Advertisement and sales promotion: The law bans tobacco promotion and advertisement in any form¹⁹, except for the introduction of tobacco products done in a foreign language and in the foreign language media²⁰. The following activities are prohibited²¹:

(i) use of trademark, logo of tobacco products on non-tobacco products or on means of transportation;

(ii) organizing marketing activities and using a system of waiters and waitresses/hostesses to promote tobacco products;

(iii) sponsorship in association with tobacco advertisement.

The above prohibitions have been elaborated upon in Circular 19²², which states that all activities with which a name, trademark, or symbol²³ of a tobacco product is associated through a means of advertisement²⁴ are prohibited. Tobacco advertisement includes any activity by which a part of a name, trademark or symbol is used and is described, and based on which the public is able to recognize the name, trademark or symbol of a tobacco product. In addition, Circular 19 introduced a new rule by which a tobacco company can display only one pack/carton of a single variant of each brand at each point of sale. The purpose of the rule is to limit the impression that tobacco products may have on consumers. It is clearly more difficult to market a new tobacco product if means of communication, promotion and advertisement are limited. What can a tobacco company do? It can choose other marketing strategies to gain a competitive edge. They may include:

(i) having/developing a good distribution network;

(ii) enhancing packaging and diversifying products;

(iii) having an appropriate pricing structure; and

(iv) choosing appropriate brands for Vietnam's market.

Public Smoking: Smoking is banned at all meetings, offices, medical establishments, schools, nursery schools, cinemas, theaters, libraries, lounges, bus stations, airports, public transportation means, crowded places²⁵. It is unlikely that a comprehensive ban on public smoking will occur; however, there is a possibility that the list of prohibited smoking places may be extended. It may include restaurants, sports stadiums/halls, etc. There are penalties and administrative fines of VND50,000 to VND100,000²⁶ for any violation²⁷. The fines are insufficient and enforcement is weak.

Health warning: The Government's own opinions on the health warning vary. The MOH has proposed to use both text and pictogram. The MOI and Vietnam National Tobacco Corporation ("Vinataba") prefer to use text only. Finally, the Prime Minister has recently decided that the health warning will occupy 30% of the principal display panel with the text: "Smoking may cause lung cancer"²⁸. There is no specific deadline for implementing the new health warning requirement in Notice 12. Note, however, the deadline to implement the FCTC's requirements is 17 March 2008²⁹.

The MOH has recently issued Decision 02³⁰ . Interestingly, Decision 02 provides that the health warning can be printed either in text or in pictogram, and the area of a health warning must occupy at least 30% of the front and back side of each tobacco pack. That means 30% of the front and 30% of the back. If we compare Notice 12 and Decision 02, at least on the surface, Decision 02 is stricter than Notice 12. Legally speaking, a notice--like Notice 12--from the Government Office is not a legal document and a decision of a minister--like Decision 02--is a legal document. The Government has the intention to override the MOH's Decision 02 on the health warning and this amendment may be reflected in a new decree³¹ that will replace the existing Decree 76³².

Decision 02 provides specific requirements for display of a health warning. Particularly, the text of a health warning must be printed on a background of white with lettering in black or on a background of black with lettering in white or in a colour that contrasts to the colour of a pack of the tobacco products³³. The health warning must be printed in upper-case letters, the size of each letter must not be less than 3 mm, and a health warning must have a surrounding border line in black, etc.

Decision 02 indicates that the commencement date to display the new health warning will be 17 March 2008, and each health warning sample that has been designed by the MOH, must be rotated every two years³⁴. After 17 March 2010, subject to socio-economic conditions, the MOH may enforce the use of pictograms with a health warning in text on all tobacco products.

Labeling: A new decree on goods labeling, Decree 89/2006/ND-CP dated 30 September 2006 of the Government ("Decree 89"), came into effect on 13 March 2007³⁵. Decree 89 stipulates compulsory contents of labels and methods to display those contents. It applies to labels of all goods (with a few exceptions) that circulate in Vietnam, and goods that are imported and exported.

The specific information required for tobacco products is provided in Article 12 of Decree 89. Compulsory contents now required on a tobacco pack are:

• Name of the goods³⁶;
• Name and address of person who is responsible for the goods³⁷;
• Origin of the goods³⁸;
• Quantity;
• Manufacturing date³⁹; and
• Health warning.

According to Decree 89, compulsory contents must be displayed in Vietnamese or in the Vietnamese and a foreign language. For imported goods with existing labels in a foreign language, a supplementary label in Vietnamese with compulsory contents is required.

Tar and nicotine level: Even though there is no scientific research to conclude that a cigarette with lower tar and nicotine is safer, the public is largely satisfied that a cigarette with higher tar and nicotine may have a larger, negative, collateral impact on health. According to Decision 02, all tobacco products must meet tar and nicotine levels described in the following table:

Conclusion: The tobacco industry itself is controversial. Nevertheless, tobacco is a lawful product in Vietnam. Because, it is so embedded in Vietnamese society and generates so much revenue for the Government, it is unlikely that the Government will undermine the tobacco industry.

This ambivalence is not new in the tobacco industry. There are a host of restrictions on the tobacco industry both in Vietnam and around the world. The more important restrictions will not change, at least in Vietnam. Vietnamese authorities and the public are largely convinced that there is a link between smoking and health. To a lesser extent than in other parts of the world, Vietnamese anti-smoking lobbies and health organizations are only beginning to ask legislators to enact stricter regulations. Where is the line between free choice and the well being of society? The Government as an administrative body seeks to balance the interests of all stakeholders: manufacturers, distributors, importers, farmers, health administrators, employees, smokers and non-smokers. Balanced regulation seems to be the alternative Vietnam has chosen to reduce the negative health impact while allowing the industry to continue to operate. That requires the proactive, responsible cooperation of tobacco manufacturers and related stakeholders, but it is an area where strong views are held and compromise is not simple. That said, Vietnam has introduced and appears prepared to maintain significant controls on the industry.

1. This paper was prepared by Nguyen Huu Hoai of the Ho Chi Minh Office of Russin & Vecchi. It is current through June 2007.
2. Resolution 12/2000/NQ-CP dated 14 August 2000 on national policy to prevent and combat harm from cigarettes during the period 2000-2010 ("Resolution 12").
3. Decree 76/2001/ND-CP dated 22 October 2001 of the Government on tobacco production and business activities ("Decree 76"). According to Resolution 25/2006/NQ-CP dated 9 October 2006 of the Government, Decree 76 will soon be amended.
4. Notice 12/TB-VPCP dated 16 January 2007 of the Government Office ("Notice 12").
5. Point 6 of Notice 12.
6. Point 7 of Notice 12.
7. Article 15.4 of Decree 76.
8. That is the trigger date--seven years from the effective date of the VN-US BTA--on which Vietnam must eliminate restrictions on its export requirements.
9. The production capacity is determined on the basis of three shifts per day.
10. This rule was introduced in Directive 278 dated 3 August 1990 of the Minister's Council.
11. This Report was prepared by the WTO Working Party on the Accession of Vietnam ("Report"). The final version of the Report is dated 27 October 2006.
12. Point 206 of the Report.
13. The term "trading rights" means importing and exporting rights. It is different from "distribution rights". See also footnote 18.
14. Point 206 of the Report.
15. Decision 126/2003/QD dated 7 August 2003 of the Ministry of Finance.
16. The preferred tariff rate is applied to goods originating from countries having Most Favored Nation ("MFN") status with Vietnam, whereas the common rate is applied to goods originating from countries not having MFN status with Vietnam. The common tariff rate is equal to 1.5 times the preferred rate.
17. As a matter of interest, there is a large number of tobacco hawkers, and the law does not yet require them to have a cigarette-trading license.
18. The term "distribution rights" is defined in Decree 23 dated 12 February 2007 of the Government. Under Decree 23, distribution right means the right to carry out distribution activities directly; and distribution means activities of wholesalers /retailers, agents and commercial franchisees.
19. This rule can be found in many regulations such as Resolution 12, Decree 76, Circular 19, etc.
20. Sub-clause 3a, article 12 of Decree 76.
21. Sub-clause 1.b, section II of Resolution 12.
22. Circular 19/2005/TT-BVHTT dated 12 May 2005 of the Ministry of Culture and Information ("Circular 19").
23. A symbol of a tobacco product includes a picture, or typical sign of a tobacco product. The symbol of a tobacco product may be presented in words, pictures, sounds, light or may be presented in colour, in block colour to distinguish or recognise it as a tobacco product.
24. Circular 19 provides a specific list of means of advertisement. It includes packaging, leaflets, merchandising items, means of communication, etc.
25. Point 1, section II of Resolution 12.
26. US$1 ≈ VND16,000.
27. Article 16.a of Decree 45/2004/ND-CP dated 6 April 2005 of the Government.
28. Point 5 of Notice 12.
29. This deadline implements the FCTC's requirement.
30. Decision 02/2007/QD-BYT of the Ministry of Health dated 15 January 2007 ("Decision 02").
31. A decree is legislation of the Government. It is higher than a decision issued by a minister like Decision 02.
32. Decree 76 is the main regulation on tobacco trading and manufacturing activities. According to Resolution 25/2006/NQ-CP of the Government dated 9 October 2006, Decree 76 will soon be amended.
33. Even though a health warning must be printed in text, black and white colours may have a negative impact on tobacco packs from a brand promotion standpoint. Some tobacco manufacturers may propose to display the health warning in a neutral colour.
34. There are five statutory samples of each health warning in Decision 02.
35. The Prime Minister has agreed to delay the implementation of Decree 89 until 13 September 2007. This is provided in official letter No. 1697/VPCP-KG dated 30 March 2007 of the Government office ("Notice 1679").
36. A few tobacco manufacturers advocate that it is unnecessary to display the name of a tobacco product on a label due to the fact that a tobacco pack is limited in size and the name of the product "tobacco" already appears on the tax stamp and health warning (eg, "tobacco" tax stamp; "tobacco" may cause lung cancer). Previously, this advocacy was accepted by the Ministry of Industry. We do not know whether the Government will continue to accept it.
37. For goods which are franchised or licensed, the franchisor or the licensor is considered to be the responsible person. By that we mean that a label must also display the name and address of the franchisor/licensor.
38. Decree 89 does not require a tobacco manufacturer to print "origin of goods" information on a pack of domestic cigarettes if the address of the tobacco manufacturer is displayed on the pack of cigarettes. Inter-Circular 01 dated 10 January 2007 of the Ministry of Trade and the Ministry of Industry ("Circular 01") provides that imported cigarettes must have information on the "origin of goods" and a statement "to be sold in Vietnam" must appear on each pack of cigarettes.
39. A label must display the manufacturing date in the following manner: Manufacturing date: dd/mm/yy.
40. The current maximum tar level is 24 mg per cigarette.
41. The current maximum nicotine level is 2.2 mg per cigarette.

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