Barriers to improving global health in the proposed Trans Pacific Partnership agreement

I was recently asked to put together one page on this issue to help with discussions with the USTR.  In case it is useful to others, here is what I said.  (PDF version)
BARRIERS TO IMPROVING GLOBAL HEALTH IN THE PROPOSED TRANSPACIFIC PARTNERSHIP AGREEMENT
·         Noncommunicable diseases are the dominant health problem of the 21st Century and most of these diseases are the result of promotion and consumption of unhealthy products (tobacco, obesity-inducing foods, alcohol to excess)
·         These products are profitable to sell, especially for transnational corporations
·         Reducing the health impacts (and attendant impacts on health costs and the economy) requires regulating these products
o   Such regulation will almost certainly reduce profits of these companies
o   There is little dispute that public health officials, and state and national officials, have the power to enact and implement such regulations generally, though particular measures can be contested.
o   Trade agreements toss an exogenous barrier into the mix, requiring that regulations avoid even inadvertent “discrimination” against businesses, based on their country of origin. 
·          The "Investor-State" provisions of the TPP expand the opportunities for the tobacco industry, as well as purveyors of other products that damage health, to litigate against sensible public health regulations.
o   Regulations that reduced profits could be a legal cause of action
o   Even increased taxation designed to reduce sales
·         These corporations have greater legal resources than most countries, especially poor and middle income countries, which makes the mere threat of litigation a deterrent to health regulations[*]
o   The only reason that Uruguay is able to defend its strong graphic warning labels on cigarettes is because US philanthropy is paying the legal costs
·         The dispute resolution process (secret arbitration) prevents transparency and public involvement, further compromising the ability of public health
·         The expanded intellectual property provisions will provide new causes of action for tobacco and other companies to oppose warning labels and advertising controls
o   To date tobacco companies have not been successful in arguing that international trademark treaties prohibit large warning labels or plain packaging; provisions in the TPP would give the tobacco companies such protections
·         The expanded intellectual property provisions will make it more difficult and expensive to make pharmaceuticals available at low cost, including in poor countries
·         Public health authorities have been frozen out of the negotiations
o   "Public consultations" are a joke (I have participated in two of them)
·         Malaysia has tabled a clear "carve out" for tobacco to ensure that the tobacco companies will not be able to make clever legal arguments to fight public health policies
o   The Obama Administration is refusing to support Malaysia
o   A proposal to protect "science based regulation" the Administration floated last summer addresses none of these problems, and still leaves the door open to litigation
o   Unwillingness to protect the public from tobacco signals even less willingness to deal with other issues
·         What needs to be done?
o   Support Malaysia tobacco carve out
o   Assure that commercial interests are not given priority over health
o   Include public health representatives in the negotiating advisory process, and promote transparency and democratic accountability at all levels of trade negotiations
o   Exclude vital human services such as health care and water, and intellectual property rules that affect warning labels on dangerous products and affordable medications from challenge under trade agreements

[*] See, for example http://www.nytimes.com/2013/12/16/opinion/big-tobacco-bullies.html?ref=o...