The U.S. Trade Representative just can't catch a break. Neither can the breathing public.

From CPATH:

Public health and medical advocates have urged the USTR to address the scourge of 6 million deaths a year due to tobacco use, by excluding tobacco control protections from challenge under the Trans Pacific Partnership (TPP). The TPP is a 12-nation trade agreement. Negotiators will meet again next week in Brunei.

We were encouraged by the President's promise to lead an economy for the 21st Century, to reduce preventable deaths among youth, and to
conduct policy transparently.

The USTR did suggest last year that they might propose a policy that could protect tobacco control regulations.

Health and medical societies in Malaysia and other TPP trading partners took the gesture at face value, and have also campaigned for provisions that would exclude tobacco products and protective measures from the TPP. Legal and medical experts in the U.S. expressed concerns that the USTR's proposed policy would be too weak to slow predatory tobacco corporations from addicting and killing young people.

But the tobacco industry told the USTR (and Inside Trade - see below) that they have a different worry: that the U.S. proposal might actually reduce tobacco use. And tobacco-related deaths. And tobacco sales.

Early on Thursday, Aug. 15, the USTR invited an undisclosed list of "stakeholders" (see message below) to a closed meeting early on Friday, Aug. 16, during the traditional Congressional summer recess, to unveil a new draft proposal on tobacco control measures. As described below in Inside US Trade, the new proposal is even weaker than the first.

USTR declined CPATH's request to install a phone line for remote participation, or to speak with us "on the record," or even to tell us who is on the invitation list.

CPATH declined to have a secret conversation. Critical public policies should be openly discussed. by public interest organizations and the government. And those policies should protect the public's health.

We invite you to take a few minutes to communicate your opinions to the USTR on this range of issues, tonight and on Friday:

@USTR @CPATH2 #NoTPP #TPP #StopTobacco
No secret meetings on matters of life and death. Tobacco out of the TPP! If tobacco corps. can set trade policy, so can I. Public, transparent trade meetings now!

Trade agreement rules are spring-loaded for tobacco company rights. Exclude tobacco control measures to protect the public's health.

Thank you. - Ellen Shaffer and Joe Brenner,
Center for Policy Analysis on Trade and Health (CPATH)
www.cpath.org 415-922-6204

USTR
INVITATION TO UNDISCLOSED PARTICIPANTS:

From: FN-USTR-IAPE [mailto:[email protected]]

Sent: Thursday, August 15, 2013 11:00 AM
To:
FN-USTR-IAPE
Subject: INVITATION: Public Health Stakeholder Briefing
tomorrow with USTR and HHS
Importance:
High

Good morning,

We would like to invite you to an in-person briefing for public health stakeholders on the Trans-Pacific Partnership
negotiations tobacco proposal on this Friday, August 16th from 10:45am – 12:00pm.

The briefing will be provided by Drew Quinn, Special Advisor and Deputy Chief Negotiator for the Trans-Pacific Partnership with the U.S. Trade Representative and Holly Wong, Deputy Assistant Secretary for Global Affairs with the Department of Health and Human Services.

To attend, please RSVP at [email protected] with your name, title, and the name of your organization. Given space limitations, we ask that you do not share this invitation further. This briefing is closed to press, and do to security requirements, all RSVPs must be received by 6:00pm Thursday, August 15th. Once you RSVP, we will follow up with the final location in Washington, D.C.

For those of you that may be unavailable or out of town, we would be happy to discuss meeting at a later date.

This invitation is non-transferable.

Thank you for your time.

Office of Intergovernmental Affairs and Public Engagement

Office of the U.S. Trade Representative

Daily News Inside U.S. Trade

USTR Prepares To Table Revised TPP Tobacco Proposal, Briefs Congress

Posted:
August 15, 2013

The Obama administration has substantively changed its previous draft proposal on measures related to tobacco control that it floated last year in the context of the Trans-Pacific Partnership (TPP) talks and is preparing to table an altered version, perhaps at the next formal round of TPP talks that kicks off in Brunei next week. Officials from the Office of the U.S. Trade Representative are briefing members of Congress this week on the new proposal, sources said.
According to informed sources, the new proposal has two essential elements. First, it would clarify that TPP members agree that measures referred to in Article XX(b) of the General Agreement on Tariffs and Trade (GATT) and in Article 14 of the General Agreement on Trade in Services (GATS) include measures "necessary to prevent or reduce tobacco use or its harms."
GATT Article XX(b) states that WTO members agree that measures that are “necessary to protect human, animal or plant life or health” would not violate the GATT -- even if it otherwise would run afoul of GATT rules -- provided that the measure is not a “disguised restriction on international trade” and meets several other criteria. It is one of several exceptions from GATT rules included in Article XX, and is the most relevant for measures related to tobacco use.
Similar language is included in GATS Article XIV, although that article only deals with trade in services.
The full extent of the ramifications of this part of the U.S. proposal were not immediately clear. For instance, one source said TPP members have already agreed that the exceptions contained in Article XX and the related World Trade Organization jurisprudence will be incorporated into the "general exceptions" chapter in a final TPP deal. Therefore, this source said, the U.S. proposal would likely mean that TPP members would agree to interpret the Article XX language in TPP in a certain way in the context of TPP state-to-state challenges on tobacco measures.
But it is an open question whether the interpretation called for in the proposal would also alter the nature of WTO rights among TPP members when it comes to interpreting Article XX in WTO disputes; for instance, one source said it was not clear whether the proposal would mean that, in the context of a WTO dispute, TPP members also agree to interpret Article XX (b) as accommodating measures "necessary to prevent or reduce tobacco use or its harms."
Using a regional trade deal like TPP to alter WTO rights as applied between TPP members could be a fairly controversial step; some scholars say this is not even possible.
Either way, public health advocates are sure to be unimpressed for this first "clarification" aspect of the U.S. proposal, sources said. Such advocates will likely argue that there is little doubt that a measure that is necessary to reduce tobacco use would fit within the confines of Article XX(b) as something meant to protect human health. They will likely argue that this clarification, while certainly welcome, brings little new to the table in practice.
The U.S. proposal also does not appear to make it any easier for a particular tobacco measure to meet other requirements in Article XX -- whether in the WTO or TPP context, sources said.
For instance, the proposal does not appear to make it any easier for a given tobacco control measure to meet the other requirements necessary to qualify for "protection" under Article XX contained in that article's chapeau. The chapeau states that the measure cannot be a "disguised restriction on international trade" and must not “constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.”
One public interest advocate noted that in WTO cases where Article XX is invoked as a defense by the respondent, proving that a measure fits the criteria under Article XX(b) is a relatively easy step, and that it is much harder to prove in litigation that the requirements of the chapeau have also been met.
According to informed sources, the second essential part of the new U.S. proposal would impose a new consultation requirement on TPP members seeking to launch legal challenges under the auspices of a TPP deal on tobacco control measures.In such situations, the proposal would require health authorities from the TPP countries involved in the dispute to get together and discuss whether the contested measure is "appropriate," sources said.
Even if these ministers agreed a measure was appropriate, however, that would not mean a legal challenge could not go forward, sources said. But it was not immediately clear whether or how a joint agreement by health authorities that a measure is "appropriate" might affect that litigation if it were to move forward.

A business source worried that a joint agreement by health authorities might influence the legal outcome by making a TPP tribunal more likely to say the
measure is protected under the Article XX-like language. Health ministers, who care little for international trade rules and focus narrowly on their particular field, would most likely conclude that a measure is “appropriate” to protect human health, this source argued.

But a civil society source argued that a legal tribunal is unlikely to pay much attention to an agreement by health authorities when it comes to their legal
proceedings.
The new proposal also has several “omissions” that are likely to irk public health advocates, sources said. Unlike the previous U.S. proposal in this area, the new proposal does not explicitly recognize the unique status of tobacco products from a health and regulatory perspective. Public health advocates saw that language as a major “step forward” in the debate on tobacco, and it was a big reason why they offered their support to the old U.S. proposal.
But a business source argued that the new proposal still effectively “singles out” tobacco as a unique product by applying special rules for tobacco control measures. Multiple sources expected that both sides of the debate – both business groups and civil society representatives – would object to the new proposal.
According to one source, the new proposal also would not apply to investor-state challenges at all, but rather would only apply to state-to-state challenges launched under the auspices of TPP.
This new proposal represents a significant change from the draft TPP proposal floated by the United States in May 2012. That proposal would have created an exception to allow a TPP member’s health authority to regulate against tobacco products for public health reasons without running afoul of TPP rules. In particular, it would provide a “safe harbor” for tobacco regulations issued by health authorities like the U.S. Food and Drug Administration (FDA).
Business representatives and some members of Congress had fiercely objected to the prior proposal. They argued that, by allowing health authorities to impose “origin-neutral, science-based restrictions” on tobacco measures “in order to safeguard public health,” the U.S. proposal would lower the tougher “necessary”standard contained in GATT Article XX and make it easier to throw up measures that hamper U.S. exports.
By contrast, the new proposal does not appear to alter the "necessary" standard included in Article XX.
Moreover, these representatives feared that the old U.S. proposal was implicitly undermining the longstanding U.S. assertion that WTO rules, including the exceptions as stated in GATT Article XX, are already sufficient to allow members to implement legitimate public health measures. The old proposal, while providing additional “protection” to tobacco measures in particular, undermined the existing rules, they argued