Obama takes baby step toward protecting public health in the Trans Pacific Partnership; leaves big loophole

Yesterday (October 2, 2015) the New York Times reported that the Obama Administration has proposed language for the Tran Pacific Partnership designed to make it harder for tobacco companies to use trade agreements to sue countries that enact sensible public health regulations (like plain packaging).  While this is a step in the right direction, it leaves a huge loophole open by continuing to allow tobacco farmers to sue.
 
The multinational tobacco companies have already created an organization that supposedly represents farmer interests, the International Tobacco Growers Association (ITGA) which it used to oppose development of the FCTC and oppose limitations on use of child labor in tobacco farming.   The tobacco companies could easily use this, or some other custom-created farm group to sue countries over tobacco control laws and regulations, just as they bought off or created phony hospitality associations to fight smokefree restaurants and bars.
 
In addition, subtle changes to the rules that put the burden of proof on the plaintiff tobacco company rather than the defendant government will not make any practical difference because the companies have a long history of bringing frivolous lawsuits even when their lawyers tell them they don’t have a case (exemplified by unfounded claims that warning labels and plain packaging violate the companies’ trademarks) or when they almost always lose (as in challenges to local smokefree laws).  In both cases, the companies are using the threat of costly litigation to deter action to protect public health.
 
(Public health got a big shot in the arm in standing up to this bullying when the Bloomberg and Gates Foundations created legal resources to help countries stand up to the tobacco companies.  Without all the companies’ frivolous litigation, however, these resources could be deployed elsewhere.)
 
Obama’s proposal also leaves the current system of international trade lawyers making the decision in these cases (often in secret).  This system is rife with conflicts of interest and represents a privatization of crucial government functions of running the justice system.  According to the Times, this system was created to protect multinational corporations from “biased” local courts.  The multinational law firms that represent companies in these cases are the source for the arbitrators who sit in judgement on companies’ complaints.  Increasing transparency and disclosure is no substitute for an independent judiciary.
 
Finally, one of the Administration concerns that the Times reported is that the public health exemptions could end up applying to soda and alcohol.  At a time that the UN High Level Summit on Noncommunicable Diseases has identified the diseases that tobacco, sugar, and alcohol cause as the health challenge of the 21st Century, it is a good thing that trade policy protect all of public health.