[CPATH] U.S. TPP Tobacco Proposal Doomed by Loopholes; Malaysia Exclusion/Carve Out Necessary

This is an informative email I received from Ellen Shaffer at CPATH:

Negotiators of the Trans-Pacific Partnership (TPP) Agreement are currently meeting in Singapore in the hopes of ironing out a set of thorny political issues remaining after years of talks. Among the most important of those issues is the treatment of tobacco in what would become the largest regional trading bloc in the world.

After years of study and debate, several TPP countries have endorsed the unanimous call by public health, medical, and legal organizations to support the only effective policy: excluding tobacco entirely from TPP provisions. Malaysia has proposed such a carve out.

However, the U.S. has leaked that it may propose a half-measure that will leave intact avenues for the tobacco industry to block or overturn tobacco control regulations and laws like plain packaging.

The proposal would reportedly remove some aspects of tobacco from the chapter on Investor-State Dispute Settlement (ISDS), that authorizes private companies to bring trade charges against governments. However, as an analysis by Professor Jane Kelsey delineates, such a partial measure would leave in place significant barriers to tobacco controls.

For example, the most likely approach to a compromise proposal would follow the general exception provision. This would require that tobacco control measures still adhere to trade rules that are irrelevant to public health purposes, such as that the measure must be non-discriminatory based on a tobacco product's country of origin, or subject to a “necessity test” that requires a regulation to be evidence-based (which could provide the basis for a trade charge), and least trade restrictive (meaning that there is not a less burdensome approach, even a hypothetical one widely understood to be politically impossible, that could have been taken to achieve the policy objective).

There could be a qualifying sentence that effectively neutralizes an exception. For example, a provision in the leaked investment chapter says:

"Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any [tobacco…] measure that is otherwise consistent with this chapter."

This circular wording basically means that the government is allowed to adopt a tobacco control measure that doesn’t otherwise breach trade rules.

There are numerous other chapters, and additional procedural rules, to which tobacco control measures would still be subject, and that would provide the basis for intervention.

Over the past three decades, the tobacco industry has increasingly used trade and investment agreements to litigate against laws and regulations meant to diminish the estimated 1 billion deaths this century expected from tobacco use. Such suits cost governments millions in legal costs, win or lose, and are an attempt to dissuade governments from even attempting to protect future generations from the disease and death caused by tobacco.

Last August, Malaysia took a bold step by proposing to exempt, or “carve-out” tobacco entirely from the TPP, meaning that tobacco control measures would be immune to lawsuits under the Agreement. The public health community enthusiastically agreed, calling on the U.S. and other TPP governments to endorse the proposal. Dozens of groups in the U.S. have joined CPATH in calling for strong action on tobacco in the TPP, representing hundreds of thousands of individual doctors, lawyers and public officials, include the American Public Health Association, the American Cancer Society, American Medical Students Association, Action on Smoking and Health, and the National Association of Attorneys General. (See the CPATH website for statements of support for a tobacco carve out.)

Professor Jane Kelsey of the University of Auckland states the her analysis of the pitfalls of settling for less than a full carve-out is "based on years of research and experience in dealing with the tobacco industry. The best safeguard against the tobacco industry is a concise, explicit statement excluding tobacco products from the agreement entirely."

Tobacco is unique – it is the only consumer product that kills when used exactly as intended, ending nearly 6 million lives a year. It is by far the world’s leading cause of preventable death, responsible for about 1 in 5 of all deaths. It should not be treated the same as other commodities in global trade

The Toronto Star reports, "Several of the TPP chapters already have been leaked. Two key chapters of public health concern regard investor-state dispute settlement (ISDS), and intellectual property rights (IPRs).

"ISDS allows foreign corporations to sue a government for regulations that they believe expropriate or diminish the value of their investments. “Investment” in the draft TPP chapter includes trademarks, making public health measures regarding tobacco control or even labeling requirements for alcohol or food products potentially vulnerable. ISDS provisions in other treaties are already being used to challenge Australia’s cigarette plain packaging law and Uruguay’s tobacco health warnings. Uruguay is able to defend its tobacco control policies only because of financial help it receives from the American Bloomberg Foundation."

- Ellen R. Shaffer, Co-Director, CPATH

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