June 22, 2013

Stanton A. Glantz, PhD

Important new paper on how Trans-Pacific Partnership being negotiated will undermine tobacco, health & environment regulation

Gary Fooks and Anna Gilmore just published a very important paper on how the pending Trans-Pacific Partnership (TPP) trade agreement could undermine tobacco control policies in countries including 40% of the world's population.

Their paper focuses on using the TPP to block plain packaging, but the concerns they raise apply to all tobacco control policies, all the way down to local clean indoor air laws and tobacco taxes.  Indeed, the issues they raise apply to any health or environmental law that might make transnational corporations less profitable.

This paper is must reading for anyone interested to tobacco control or public and environmental health generally.  It raises serious questions about the lack of transparency of the process by which the TPP is being negotiated and the preferential access to the negotiating process that multinational corporations, including multinational tobacco corporations, have.  A logical conclusion of the information in this paper is that the negotiating process needs to be opened up to public scrutiny.

Given the tremendous impact that trade agreements like the TPP could have on all aspects of life, I do not understand why they are not considered treaties, which would require a 2/3 vote in the US Senate for ratification. 

The Conclusion of the paper, reproduced below, sums up the issues very well (citations have been omitted):
"Trade and investment agreements have been criticised for transferring state decision-making from the national to the international level and providing transnational corporations with a supranational court of appeal with which to challenge the capacity of governments to introduce new public health legislation. PM Asia's continuing action against the Australian government under the Hong Kong-Australia BIT given its defeat in the Australian High Court over the 2011 Act illustrates this point well. PMI's formal request to the USTR [US Trade Representative] that the TPP be used to extend IP rights, harmonise the process of regulatory formation, and provide a comprehensive system of  ISDS [Investor-State Dispute Settlement] reflect the contents of leaked drafts of the TPP agreement. These suggest the TPP will extend IP protection to trademark use, strengthen corporate influence in regulatory formation, and provide tobacco companies with extensive powers to litigate against governments directly. Although the extension of IP protection is subject  to exceptions for measures aimed at promoting public health, the precise scope of these exceptions is unclear. Consequently, all three measures are likely to increase the tobacco industry's policy influence and to deter governments from introducing plain packaging, albeit in different ways. First, by increasing litigation risk for legislating states, the extension of IP protection to trademark use will increase tobacco companies’ power to present the costs associated with plain packaging and other policies affecting pack design as prohibitively expensive. Likewise, proposals such as regulatory review, stakeholder consultation and the use of impact  assessments provide the industry with a range of tools to access and feed information into health policymaking. Combined with the TPP's proposal for states to  provide access to ‘supporting documentation’ relating to regulatory measures, analyses and data, which may exacerbate existing information asymmetries between states and multinational corporations, these reforms are likely to facilitate challenges to regulatory innovation under international law. By underpinning these measures with ISDS, which increases the economic costs associated with litigation and institutionally embeds uncertainty in treaty interpretation, the TPP provides a powerful new toolbox for the industry in preventing the introduction of plain packaging and other innovative health measures.
"Finally, the lack of transparency in the TPP negotiations illustrates the limitations inherent in the state-centric nature of Article 5.3 of the WHO Framework Convention on Tobacco Control. Article 5.3 aims to limit tobacco industry involvement in health policy by, among other things, requiring parties to the Convention to make interactions between the tobacco industry and public officials as transparent as possible. The USA is a non-party to the Convention and is, therefore, under no obligation to make public any involvement of tobacco companies, either directly or through third parties, in TPP policymaking. This enables the tobacco industry to undermine APEC states’ efforts to implement Article 5.3 and influence health policy remotely through TPP negotiations."
The citation for the paper is Fooks G, Gilmore A. International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership, Tob Control doi:10.1136/tobaccocontrol-2012-050869 and is available for free at http://tobaccocontrol.bmj.com/content/early/2013/06/19/tobaccocontrol-2012-050869.full?sid=bfa13623-9012-4fd7-ad6d-fc92d03fb477

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