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
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.
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:
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.
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
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.
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.
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
“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
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
Ellen R. Shaffer, PhD MPH
Joseph E. Brenner,
Center for Policy Analysis on Trade and Health
Smoking and Health (ASH)
Full packet and individual letters
Action on Smoking and
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
Congress of Obstetricians and Gynecologists
American Heart Association,
American Stroke Association
American Medical Association
American Medical Students Association
American Public Health Association
Society of Addiction Medicine
American Society of
Association of State and
Territorial Health Organizations
Health Book Collective/Our Bodies
OurselvesCalifornia Conference of Local Health
California Public Health Association-North
Center for Policy Analysis on Trade and Health (CPATH)
Health Officers Association of California
Rights and Tobacco Control Network
International Association for the Study of Lung Cancer
Citizen Trade Policy Commission
Physicians for Social Responsibility
Public Health Institute
San Francisco Medical Society
Francisco Tobacco Free Coalition
Society of Thoracic Surgeons
Vermont Commission on International Trade and State
Statements by U.S. Medical and Public Health Organizations on
TPP, Tobacco and Public Health
Click for individual letters below.
of Pediatrics, California Chapter 1, November 12, 2013
Association of State
and Territorial Health Officials (ASTHO), November 2013
of Local Health Officers (CCLHO), October 30, 2013
Health Association - North (CPHA-N), October 18, 2013
Public Health Institute,
Mary Pittman, DrPH, President & CEO, Oct. 3, 2013
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
for the Study of Lung Cancer, May 16, 2012
Society of Thoracic
Surgeons, May 15, 2012American College
of Physicians, American College of Preventive Medicine, American Congress of Obstetrics and Gynecology, AMA, CPATH, May 15,
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
of Preventive Medicine Sept. 13, 2011 American Medical
Association, May 8, 2011