Excellent (and readable) article on precisely how TPP protects Big Tobacco and changes to protect health instead

Robert Stumberg, a Professor of Law at Georgetown University, recently published an excellent paper, "Safeguards for Tobacco Control: Options for the TPPA", in American Journal of Law & Medicine that walks readers though the technicalities of trade law and precedents in a way that clearly explains why the TransPacific Partnership Agreement that the Obama Administration is now negotiating with countries around the Pacific Rim will make it more difficult and expensive for countries to implement the FCTC and other tobacco control policies.
 
He clearly outlines how the complexity of the treaty will create litigation opportunities for the tobacco companies, who have a long history of using the threat of expensive litigation as a strategy for bullying countries (and states and localities and organizations and people).  He also describes how some of the provisions that nominally would protect public health are written in ways that still leave important loopholes open for the tobacco companies by not covering all the different potential causes of action that the TPPA creates. 
 
He also does a good job of explaining how protecting "science-based" laws and regulations that the Obama Administration floated several months ago (and, that Stumberg points out is supported by Philip Morris) will create opportunities for litigation as well as making it harder to implement policies like taxation or retailer licensing, which are not necessarily "science-based."
 
He also points out that, done properly, the TPPA could provide "an opportunity to strike a balance in favor of health and against tobacco litigation."
 
Here is Stumberg's bottom line (quoted verbatum from the end of the paper):
 
Six chapters of the TPPA potentially threaten tobacco-control measures. They expand market access or protect the industry with WTO-plus rules that can be used in later rounds of litigation:

1. Investment—expands investor-state arbitration for U.S.-based tobacco companies.
2. Intellectual property—adds a new right to use trademarks with a place name (e.g., Marlboro).
3. Cross-border services—expands the service sectors to which trade rules apply (e.g., packaging, distribution, and advertising); potentially limits domestic regulation.
4. Regulatory coherence—promotes industry stakeholder participation in decision-making; promotes regulatory impact assessments that the industry uses to litigate.
5. Technical barriers to trade—potentially limits how governments cooperate in setting standards or guidelines for tobacco control.
6. Tariffs—expands market access in countries with high tobacco tariffs (Vietnam).
 
Six elements of the GATT/GATS exception create a complex formula [when complexity is bad because it creates opportunities for the tobacco companies to file lawsuits and drive up the cost and time for resolution]  for defending tobacco measures:
 
1. Scope—Based on the U.S. model for free trade agreements, the baseline health exception applies to selected chapters of the agreement, but not to specific rules being used to litigate against tobacco-control measures (including the investment chapter, among others).
2. Protection—Tobacco investors use MFN to incorporate rules from outside the primary agreement that provide more favorable treatment. The draft TPPA investment chapter excludes procedural treatment from MFN, but MFN would still apply to substantive investor rights.
3. Deference—There are no terms of deference to non-WTO treaties in the WTO exception.
4. Nexus—The necessity test creates uncertainty with stages that enable litigation to challenge the contribution of a measure, weigh that contribution against its trade restrictiveness, and identify less restrictive alternatives. Some scholars predict that investment arbitrators would apply the necessity test with less deference than trade panels.
5. Objective—Some measures serve multiple purposes, including non-health purposes like revenue or business licensing; their connection to protecting health may be indirect.
6. Additional restrictions—Even a “necessary” measure can be challenged as having a discriminatory effect in the market as applied. This works against incremental change and measures that freeze the market at its current stage of development.
 
The exception provides opportunities to litigate each element. Win or lose, the threat of costly litigation has long been part of the tobacco industry’s strategy to constrain implementation of tobacco-control measures.
 
To create a safe harbor for its agency regulations, the United States informally proposed a tobacco exception. This, however, does not protect legislation or measures adopted by tax, licensing or customs authorities. In place of the necessity test, it requires scientific evidence, a burden of proof that necessity does not require. The U.S. proposal would not protect against the WTO dispute the United States lost, the WTO claims against Australia, or the investment claims against Australia or Uruguay.
 
This [Stumberg's] article identifies alternatives for each element in the U.S. proposal. Here is the original summary compared to alternative elements in several possible combinations:
 
Original summary of the U.S. proposal—Language in the general exceptions chapter that allows health authorities to adopt regulations on specific tobacco products or classes that impose origin-neutral, science-based restrictions in order to safeguard public health.
 
Alternatives—several of many possible combinations—
Nothing in this Agreement prevents a party from adopting or enforcing . . .
. . . measures that contribute or aim to reduce use of tobacco products or its harms.
. . . measures that it considers appropriate for science-based protection of public health.
. . . measures that it considers appropriate to reduce use of tobacco products or its harms.
Nothing in this Agreement applies to measures that contribute to or aim to reduce tobacco use or its harms. Additional interpretive clauses – For greater certainty,
. . . this exception applies in addition to other exceptions; it has no effect on operation of those exceptions.
. . . this exception applies to all obligations including any duty to compensate for direct or indirect expropriation.
. . . if this exception applies to a measure, it is consistent with MFN treatment.

The more elegant alternative to a complex exception is to simply exclude tobacco-control measures. An exclusion is better protection than a defense; it contains litigation. If the political will is lacking for a full exclusion, there are several ways to draft a partial exclusion. TPP countries could follow Australia’s lead by opting-out of ISDS (generally or with respect to tobacco-control measures), and countries can take reservations from rules on market access and discrimination in the chapters on services and investment.
 
Even if Uruguay and Australia win their trade and investment disputes, the precedent will not end such litigation. Defenses that rest on trade flexibilities or exceptions flex in both directions; they provide a defense and also an opportunity to to balance trade against health interests. Further, the tobacco industry will continue to have an advantage in resources to litigate for the purpose of chilling or diverting tobacco-control measures.
 
Whether it supports or opposes effective safeguards for tobacco control, the U.S. government will play a decisive role. Upon passage of Tobacco Control Act in 2009, President Obama committed his administration to work with the WHO and other nations “to fight this epidemic on a global basis. He acknowledged the “constant and insidious barrage of advertising.” 360 Yet in the years since, U.S. negotiators have worked to expand market access for advertising and distribution, expand trademark protections, reduce tariffs, and expand investor rights—all to the benefit of tobacco companies at home and abroad. The TPP is an opportunity to strike a balance in favor of health and against tobacco litigation.