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PROTECT PUBLIC HEALTH IN TPP TALKS

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Click here: US propsed ISDS exception for tobacco won't work - Exclusion/carve-out needed

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

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 Professor Jane Kelsey delineates [see statement above], such a partial measure would leave in place barriers to tobacco controls.

For example, the most likely approach 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 country of origin, or subject to a “necessity test” that requires it 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 Medical Association, the American Cancer Society and the National Association of Attorneys General.

Law Professor Jane Kelsey of the University of Auckland has released an analysis [see above] of the pitfalls of settling for less than a full carve-out. Kelsey states, "The analysis 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." 

PERU COLLEGE OF MEDICINE URGES SUPPORT FOR MALAYSIA'S PROPOSED TOBACCO CARVE-OUT FROM TPP, Feb. 2014: Click here to read

 45 US Attorneys General to USTR: Protect Health from Tobacco in TPP, Jan. 27, 2014 

The undersigned Attorneys General write to request that the United States Trade Representative act to preserve the ability of state and local governments to regulate tobacco products to protect the public health. This request is prompted by the negotiations currently underway with respect to the Trans-Pacific Partnership agreement (TPP), but it applies generally to all international trade and investment agreements that the United States is considering or will consider entering into. In particular, we request that any such agreement explicitly provide that it does not apply to trade or investment in tobacco or tobacco products.

Click here for AG letter on TPP and tobacco

PUBLIC HEALTH:  TPP MUST NOT ENDANGER PUBLIC HEALTH  AND PROTECTIONS FROM TOBACCO  

United States proposals for the Trans Pacific Partnership (TPP) would threaten global efforts at tobacco control by enhancing the tobacco industry's ability to undermine tobacco regulation through litigation. U.S. proposals would also jeopardize global access to affordable medicines, require that countries allow the patenting of surgical methods, place restraints on public health insurance programs, and subject government formularies and reimbursement programs to greater interference from pharmaceutical companies.  These provisions have been advanced in secret.

Public health and medical organizations have consistently and methodically exhorted the U.S. Trade Representative to protect and pursue our health and rights.  The volume of statements below urge the U.S. to carve out tobacco control regulations from the TPP and future trade agreements, in order to preserve countries' rights to prevent the great harm that tobacco causes to public health.  

Following the close of negotiations in Singapore on Dec. 11, 2013, CPATH issued this statement:
 

Negotiations on the Trans Pacific Partnership (TPP) failed to reach a final agreement yesterday in Singapore.  This is an interim victory for campaigns by the Center for Policy Analysis on Trade and Health (CPATH) and allies to extricate tobacco control measures and other public health protections from nullification by corporate trade rules.  Tobacco use is the leading preventable cause of death worldwide, claiming 6 million lives a year.  Multinational tobacco companies are systematically exercising rights found only in trade agreements to challenge and enjoin life-saving public health protections from this deadly, addictive product. The Trans Pacific Partnership would expand NAFTA-style trade rules among 12 Pacific Rim nations.

Medical and public health organizations worldwide, and our legal advisors, explored the problems and possible solutions during the 4 years of TPP negotiations, and concluded that the only genuine solution would be to carve out (meaning to remove) tobacco control laws and regulations from trade agreements. Malaysia has advanced just such a proposal. This would set a standard in trade law that would complement the global consensus on fighting the tobacco epidemic enshrined in the WHO Framework Convention on Tobacco Control, to which all TPP countries are signatories.

The U.S. Trade Representative has not agreed, nor exercised leadership towards a viable resolution. U.S. trade policy is set in secret, driven by over 600 corporate advisors.

“CPATH is proud to partner with public health, medical and public interest groups who are consistently alerting and mobilizing our communities and policy-makers,” said CPATH Co-Director Ellen R. Shaffer.

“Our compelling statements on the domestic sovereign rights of countries, as well as state and local officials, to adopt and maintain measures to reduce tobacco use and to prevent its harm have helped make public health and tobacco a central issue in TPP negotiations,” Shaffer said. Partners and colleagues in the U.S. and in other TPP countries, such as the South East Asia Tobacco Control Alliance (SEATCA), and the Malaysian Council for Tobacco Control, have issued strong calls to protect public health.

Leaked texts reveal that other U.S. proposals for the TPP would jeopardize global access to affordable medicines, require that countries allow patents for surgical methods, place restraints on public health insurance programs, and subject government formularies and reimbursement programs to greater interference from pharmaceutical companies. The Administration has announced plans to ask Congress for Fast Track authority.  If the TPP is concluded, Fast Track rules would prevent Congress from making any changes - they could only vote Yes or No. A number of prominent members of Congress oppose Fast Track.

“We must restore democratic practice and principles of economic and social sustainability to the trade negotiations process,” said CPATH Co-Director Joseph E. Brenner. “We need a 21st century trade agreement.  Carving out tobacco could signal the dawn of that century.”

 

 

 

Click here for full packet of medical and public health statements

CPATH w Center for Policy Analysis on Trade and Health            
ASHLogo.jpg


December 5, 2013

 

Ambassador Michael Froman

Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508

Dear Ambassador Froman:

We seek your explicit commitment that the U.S. will not propose or agree to any provisions in the Trans-Pacific Partnership Agreement (TPP) that would undermine the domestic sovereign rights of participating countries to adopt or maintain measures to reduce tobacco use and to prevent the harm it causes to public health.

We call your attention to the  compelling body of statements by major medical, public health and public interest organizations in the United States, listed below, that consistently call on the U.S. to exercise leadership in the negotiations on the TPP to advance tobacco control measures that contribute to reducing the enormous burden of disease related to tobacco use, and prevent incursions by the tobacco industry against those measures.

We must remove tobacco control measures and tobacco products from trade agreements and assure that tobacco control measures will not be subject to challenge through the TPP and all future trade agreements. Malaysia, a TPP trading partner, has proposed carving out tobacco control measures, and tobacco products, from the agreement. This proposal, if accepted, would set a standard in trade law that would complement the global consensus on fighting the tobacco epidemic enshrined in the WHO Framework Convention on Tobacco Control, to which all TPP countries are signatories.

Tobacco use is the leading preventable cause of death, claiming over 6 million lives a year.  Past trade agreements have provided opportunities for multinational tobacco corporations to make cigarettes cheaper, to launch massive marketing campaigns, and to challenge public health measures such as a U.S. ban on clove cigarettes, and plain packaging.  The U.S. must lead the way towards policies that protect and improve the public’s health.

Sincerely,

 

Ellen R. Shaffer, PhD MPH       
Joseph E. Brenner, MA                            

Co-Directors                                                                                                   

Center for Policy Analysis on Trade and Health (CPATH)

Laurent Huber, MSFD
Executive Director
Action on Smoking and Health (ASH)

 


Full packet and individual letters posted below.


Organizations cited


Action on Smoking and Health

Alameda Health Commission 

American Academy of Pediatrics, California Chapter 1

American Cancer Society - Cancer Action Network

American College of Physicians

American College of Preventive Medicine

American Congress of Obstetricians and Gynecologists

American Heart Association, American Stroke Association

American Medical Association

American Medical Students Association

American Public Health Association

American Society of Addiction Medicine

American Society of Clinical Oncology

Association of State and Territorial Health Organizations

Boston Women’s Health Book Collective/Our Bodies

Ourselves

California Conference of Local Health Officers (CCLHO) 
California Public Health Association-North 
Center for Policy Analysis on Trade and Health (CPATH)
  
Corporate Accountability International 
Health Officers Association of California 
Human Rights and Tobacco Control Network 
International
Association for the Study of Lung Cancer 
Maine Citizen Trade Policy Commission 
NextGenU.com
Physicians for Social Responsibility 
Prevention Institute 
Public Health Institute 
San Francisco Medical Society 
San Francisco Tobacco Free Coalition 
Society of Thoracic Surgeons 
Vermont Commission on International Trade and State  

Sovereignty

 


 

Statements by U.S. Medical and Public Health Organizations on

TPP, Tobacco and Public Health

 

Click for individual letters below.

American Academy of Pediatrics, California Chapter 1, November 12, 2013

Association of State and Territorial Health Officials (ASTHO), November 2013

California Conference of Local Health Officers (CCLHO), October 30, 2013

California Public Health Association - North (CPHA-N), October 18, 2013

Public Health Institute, Mary Pittman, DrPH, President & CEO, Oct. 3, 2013

 American Public Health Association, October 2, 2013

Alameda County Public Health Commission, September 13, 2013

CPATH and 4 U.S. physicians’ groups: American Academy of Family Physicians, American Academy of Pediatrics, American College of Physicians, and the American Congress of Obstetricians and Gynecologists, Sept. 11, 2013

Health Officers Association of California, representing the physician health officers who oversee public health in California's sixty-one city and county jurisdictions, September 6, 2013

Action on Smoking and Health, American College of Physicians, American Congress of Obstetricians and Gynecologists, American Heart Association, American Stroke Association, American Public Health Association, Center for Policy Analysis on Trade and Health, San Francisco Medical Society, San Francisco Tobacco Free Coalition, September 2013

Action on Smoking and Health, American College of Physicians, American Congress of Obstetricians and Gynecologists, Center for Policy Analysis on Trade and Health, Corporate Accountability International, Human Rights and Tobacco Control Network, International Association for the Study of Lung Cancer, American Medical Students Association, Boston Women's Health Book Collective/ Our Bodies Ourselves, Prevention Institute, Physicians for Social Responsibility, NextGenU, August 25, 2013

Citizen Trade Policy Commission - State of Maine, August 22, 2013

International Association for the Study of Lung Cancer, May 16, 2012

Society of Thoracic Surgeons, May 15, 2012

American College of Physicians, American College of Preventive Medicine, American Congress of Obstetrics and Gynecology, AMA, CPATH, May 15, 2012 

Human Rights and Tobacco Control Network, May 8, 2012  

American College of Preventive Medicine, American Society of Addiction Medicine, CPATH: Testimony Dec. 14, 2011: Exclude Tobacco from the TPP, Represent Public Health on Trade Advisory Committees

American College of Preventive Medicine Sept. 13, 2011

American Medical Association, May 8, 2011

Click here for statements (B&W)

Bringing a Public Health Voice to Global Trade and Sustainable Development
CPATH
Ellen R. Shaffer and Joe Brenner, Co-Directors
San Francisco Presidio
P.O. Box 29586, San Francisco, CA 94129
phone 415-922-6204