The US government spends about $8 billion on global health annually, but only about $7 million on tobacco-control efforts overseas, according to Thomas Bollyky of the Council on Foreign Relations. That’s a tiny amount, given the gravity of the problem and the cost-effectiveness of anti-smoking campaigns.

The United States has also failed to ratify the Framework Convention On Tobacco Control, an international treaty aimed at encouraging countries to implement anti-smoking initiatives that were pioneered in the United States, such as warning labels, bans on smoking in public places, and taxes.

Since the United States has already done most of what is required by this treaty, there is little to lose by ratifying it. Doing so would allow the United States to take its rightful place as a global leader on this issue. Instead, US officials had to sit on the sidelines of a recent meeting in South Korea, because the United States is not a party to the pact.

In the 1980s, US officials forced countries that wanted to trade freely with the United States to put out a welcome mat for the Marlboro Man. Thankfully, Congress ended such blatant shilling on behalf of the US tobacco industry in 1998. But US trade negotiators still fight on the side of cigarette companies, under the guise of demanding an even playing field. To join the World Trade Organization, China had to lower tariffs on imported cigarettes from 200 percent to 25 percent.

Despite the enmity between global anti-smoking activists and tobacco companies, there is one area where they might find common cause: combating cigarette smuggling and counterfeiting, which cost governments around the world billions of dollars in lost tax revenues. New efforts to require tobacco companies to put tracking numbers on packages to prevent illicit trade make a lot of sense.

See this article at its original location>

Several studies have already suggested a link between passive smoking and meningococcal disease.

To investigate the association, scientists at the UK Centre for Tobacco Studies carried out a systematic review of 18 studies and pooled their results.

Their study, published in the online journal BMC Public Health , shows that exposure to second-hand smoke both in the home and womb significantly increases the risk of meningococcal disease.

Passive smoking in the home doubled the risk in children and raised it even further in the under-fives.

For children whose mothers smoked during pregnancy, the risk was three times higher than for children born into non-smoking households.

Study leader Dr Rachael Murray, from the UK Centre for Tobacco Studies at the University of Nottingham, said: “We estimate that an extra 630 cases of childhood invasive meningococcal disease every year are directly attributable to second-hand smoke in the UK alone.

“While we cannot be sure exactly how tobacco smoke is affecting these children, the findings from this study highlight consistent evidence of the further harms of smoking around children and during pregnancy, and thus parents and family members should be encouraged to not smoke in the home or around children.”

Scientists estimated that each year in the UK exposure to second-hand smoke led to several hundred extra children being affected by invasive meningococcal disease.

Meningococcal bacteria are responsible for the most dangerous form of meningitis and can also invade the blood, lungs or joints.

One in 20 of those struck by invasive meningococcal disease will die despite medical attention and one in six will be left severely disabled.

See this article at its original location>

For smokers, it may seem only natural to light up while imbibing at this month’s holiday parties. But a new report published in the Journal of Studies on Alcohol and Drugs suggests that those who smoke cigarettes on the same day they drink heavily suffer worse hangovers than those who stick to booze alone. Brown University researchers analyzed a group of 113 college students at a Midwestern university who tracked their drinking and smoking habits, as well as their hangover symptoms over an eight-week period, reports TIME. Students who drank about six cans of beer per hour and also smoked were most likely to feel the consequences in the morning and suffered the worst hangovers. “This is another reason for people who drink heavily to quit smoking,” Damaris Rohsenow, study author and professor of behavioral and social sciences, told TIME. “It’s not just that the smoking will increase their discomfort the next day, but it may be increasing brain problems in the long run. The fact that smoking aggravates hangover may be a warning sign that people should heed.”

See this article at its original location>

New Zealand notified its intention to introduce the legislation in documentG/TBT/N/NZL/62, which includes a link to its health ministry for further information. The proposal was agreed in principle by the Cabinet in April 2012, New Zealand said, and was open for consultation from July to October. Information and comments are being compiled and no draft legislation has been issued so far, it said.

The delegation said smoking is the most serious preventable cause of death in New Zealand, and is most serious among the Maori population. The government aims to make the country essentially smoke-free by 2025, it said.

Expressing concern were the Dominican Republic, Honduras, Nicaragua, Nigeria, Mexico, Zambia, Cuba and Zimbabwe. They said the measure would hurt their tobacco producers and would restrict trade more than is necessary to meet the health objectives.

Supporting New Zealand were Australia, Norway and Canada, and the World Health Organization (an observer in the committee). They said the measure is justifiable in view of how serious are the problems caused by smoking.

See this article at its original location>

Examples of the new plain cigarette packaging in Australia Photo: Rex Features

But first, the government has to decide whether it wants to defend the labels it developed or go back to the drawing board.

The Department of Justice has 90 days to appeal the case to the high court. A spokesman declined to comment on whether it would.

Calls from some anti-tobacco groups to do so came quickly.

Wednesday’s decision by the U.S. Court of Appeals for the District of Columbia Circuit “was wrong on the science and wrong on the law, and we urge the government to appeal this ruling to the U.S. Supreme Court,” Matthew Myers, president of the Campaign for Tobacco-Free Kids, said in a statement.

In August, a three-member panel of the U.S. District Court of Appeals for the District of Columbia ruled in favor of five tobacco companies, which argued the labels violate the First Amendment rights of corporations. The labels are supposed to take up half of each cigarette package.

That case directly challenged the nine labels FDA developed to implement the Family Smoking Prevention and Tobacco Control Act of 2009. They include graphic images meant to illustrate the consequences of smoking, including an autopsied cadaver and a man smoking through a tracheotomy, a hole in his neck.

The majority argued that the government showed no evidence that the labels would effectively reduce smoking — the science is a matter of debate — and that the government, therefore, could not force the industry to foot the bill for advertising an anti-tobacco message.

In March, the U.S. Court of Appeals for the 6th Circuit upheld the underlying provisions in the law before the labels were created. The tobacco industry has already appealed that ruling to the Supreme Court but asked it not to take action on it before the case was resolved in the D.C. court.

“Now, it’s up to the government to decide if these particular warning labels are actually defensible to the Supreme Court,” said Mary Rouvelas, senior counsel for the American Cancer Society Cancer Action Network, who supports the labels.

Other countries have introduced similar labels. Anti-smoking advocates expect to see mounting evidence that the labels are effective, but the FDA produced limited data to suggest that its labels would work.

One option the FDA could consider, Rouvelas said, would be to adopt labels that are basically the same as labels in other countries. Then the agency could use evidence of their effectiveness to make its case.

“It’s pretty clear that the [D.C. court] had a problem with the scientific studies,” Rouvelas said, adding that First Amendment cases often rise or fall with scientific data that shows any infringement on free speech is narrowly tailored to accomplish a legitimate government goal.

In any event, the labels will not go on cigarette packs anytime soon.

If the government appeals the case and Supreme Court agrees to hear it, the case most likely will be argued next fall and decided spring or winter 2014. Under the law, the labels were supposed to go on packages in October.

The graphic warnings aren’t the only labeling issues the industry is grappling with.

Last month, U.S. District Court Judge Gladys Kessler ruled that tobacco companies will have to publish “corrective statements” about the health effects of cigarettes in package inserts, on corporate websites and in national print and broadcast advertisements — to make amends for decades of misleading the public.

The statements include that tobacco kills an average 1,200 people a day. The industry has not yet said whether it will appeal the ruling.

See this article at its original location>

Nations have responded in domestic law by implementing warning labels and anti-teen smoking measures, and in international law through the World Health Organization’s Framework Convention on Tobacco Control.

But international law may actually be hurting as much or more than it’s helping.

Earlier this year, the World Trade Organization (WTO) ruled against US efforts to reduce teen smoking. Elsewhere, tobacco multinational Philip Morris is using international investment treaties to target so-called plain-packing laws in Australia and Uruguay. Philip Morris has also been supportive of three pending challenges of the Australian legislation at the WTO.

In this month’s Transnational Dispute Management journal, I explore the first dispute, over the 2009 Family Smoking Prevention and Tobacco Control Act. Congress saw this as a hard-won political compromise. On the one hand, it took aggressive action to reduce smoking by teens by prohibiting the sale of sweet-flavoured cigarettes. (These cigarettes are particularly appealing to people in their teenage years – the so-called window of initiation that strongly influences future tobacco addiction.) On the other hand, it took seriously the warnings made consistently by the US Supreme Court, police organisations, and economists that banning cigarettes used by adults in large numbers could have serious adverse consequences for crime. A key part of this political compromise was exempting menthol from the flavoured cigarettes ban. Health researchers have shown that menthol smokers have less elastic demand, and that many would keep smoking the products even if illegal.

The WTO ruled against the US because one of the 13 banned flavors – clove – was primarily imported from Indonesia, while menthol was regulated by other means. While equity certainly requires that developing country cigarette workers be given some consideration, the WTO appellate body (staffed by trade lawyers, not health experts) made the interests of tobacco producers the only consideration that counted. As such, they went against smart, incremental policy, and sensible cost-and-benefit weighing. Indeed, if the US wants to try to comply with the ruling without reducing the number of flavours subject to the ban, it would have to ban menthol cigarettes – something that is not feasible politically or administratively.

The implications for this ruling extend far beyond the US. The World Health Organization’s framework calls for, among other things, national prohibitions on sweet tobacco products that are appealing to teens. Over 75 countries report making progress on this front. The WTO ruling could be cited to pressure other countries’ to weaken their bans on sweet products.

The Australia and Uruguay cases are also worrying. Philip Morris is arguing that warning labels go against international law and expropriate their brand value. If successful, citizens in these countries might be faced to pay the company massive compensation – all for the privilege of regulating in ways that their own legislatures and courts have approved.

How do we get international law on the right track?

In the short run, nations will understandably focus energy on winning the cases, or limiting the extent of losses. Uruguay is mounting a vigorous defence with the assistance of the Bloomberg Foundation. We can also sidestep the international law problem by lowering demand for cigarettes, as Gates Foundation grantees are doing in China, India and Africa.

But it is untenable to have international law like the health framework conflict with international trade law. WTO and investment treaty decisions with a bearing on public health could be appealed to panels with more expertise in such matters. This would create incentives to pay closer attention the regulatory logic that every country has to sort out in addressing addiction in a way that makes sense on the ground.

Better yet, costly litigation could be avoided in the first place by having trade negotiators carve out tobacco and other health matters from trade deals. This type of firewall could go a long way towards keeping kids from lighting up.

See this article at its original location>

Investor-State Arbitration Provisions: Not All Treaties are Created Equal

In recent times, a vast proliferation of Bilateral Investment Treaties (BITs) and FTAs has created spaghetti bowls (and noodle bowls in Asia) with ridiculously complex frameworks for countries and investors to navigate. To date, Australia has already entered into a number of treaties that include mechanisms allowing investors to bring action against expropriation of assets, including intellectual property, outside Australia’s domestic courts. These include FTAs with ASEAN and New Zealand, Chile, Thailand, and Singapore; and BITs withArgentina, China, the Czech Republic, Egypt, Hong Kong, Hungary, Indonesia, Lao PDR, Lithuania, Pakistan, Philippines, Poland,Romania, Uruguay, and Viet Nam. The Australia – US FTA also states that the US and Australia “should consider” allowing investors to bring claims against the parties, but does not mandate it. Uruguay also has entered into treaties with investor-State arbitration mechanisms, includes BITs with the U.S. and Switzerland (in French).

Among these 19 Australian treaties with investor-state arbitration procedures (and the US treaty where it is optional), language varies concerning exceptions for limitations for intellectual property rights. The broadest language of these treaties contains two circumstances where exemptions are giving to expropriation obligations: for compulsory licenses and for “the revocation, limitation, or creation of intellectual property rights.” The language most often uses the following wording:

This Article does not apply to the issuance of compulsory licences granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such revocation, limitation, or creation is consistent with [Chapter on Intellectual Property].

This language is found in the Australian FTAs with Chile, Singapore, and the US. It is also found in the US-Uruguay BIT and in the current US Model BIT (however these treaties direct to TRIPS instead of the IPR Chapter of the FTA).  The ASEAN-Australia-New Zealand FTA and the Australia-Malaysia FTA (which does not have investor-State dispute resolution) include exceptions for compulsory licenses but not for “the revocation, limitation, or creation of intellectual property rights.”

Language within the Intellectual Property Chapters of many of the FTAs and in TRIPS allows for limitations for IP rights. Excerpts concerning limitations for trademarks from these treaties are often worded similar to the following language:

Each Party may provide limited exceptions to the rights conferred by a mark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the mark and of third parties. (US-Australia FTA, Article 11.7(5))

Additionally, TRIPS, expressly grants countries the right to pursue public health measures in relation to IPR obligations

Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health . . .  provided that such measures are consistent with the provisions of this Agreement. (TRIPS, Article 8.1)

The remaining English treaties, the Thai FTA and every Australian BIT with investor-State Dispute provisions (the Uruguay-Swiss BIT is only in French), provide no exceptions for exercising any limitation on intellectual property rights.  These treaties give multinational enterprises the biggest room to challenge national laws that relate to intellectual property rights and public policy. This is seen directly in each of Philip-Morris’s actions.

See the complete article at its original location>

Ukraine’s parliament had just voted to approve a public smoking ban, and its president had just signed a bill to outlaw tobacco advertising and promotion. These were revolutionary steps in chain-smoking Eastern Europe.

But Skipalskyi, a leading Ukrainian anti-smoking activist, heard little praise for his country from other delegates. As he told FairWarning: “Everyone was talking about Ukraine as the bad actor in the international arena in tobacco control.”

The reason was a bewildering move by Ukraine’s trade ministry. Within hours of the historic steps to curb smoking at home, the ministry, prodded by the tobacco industry, contested a tough anti-smoking law half a world away in Australia.

In a complaint to the World Trade Organization, Ukraine challenged the law, due to take effect December 1, that will ban distinctive logos and colors and require cigarettes to be sold in plain packs. Despite Ukraine having no tobacco exports to Australia—and therefore no clear economic interest—the trade ministry branded the law a violation of intellectual property rights under trade agreements Australia had signed.

Following Ukraine’s lead, Honduras and the Dominican Republic soon joined the attack on Australia, filing similar complaints with the WTO.

The case, which will be decided by an arbitration panel, signals an emerging pattern in the global tobacco wars. As top cigarette makers lose clout with national governments, countries around the world are adopting increasingly stringent rules to combat the public health burdens of smoking. To strike back, tobacco companies are increasingly invoking long-standing trade agreements to try to thwart some of the toughest laws.

The WTO case is only part of a three-pronged legal assault on Australia, aimed both at reversing the plain packaging law and warning other countries of what they might face if they follow its lead.

Public health advocates fear the legal attacks will deter other countries from passing strong anti-smoking measures. The “cost of defending this case, and the risk of being held liable, would intimidate all but the most wealthy, sophisticated countries into inaction,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids in Washington D.C.

The dispute underlines broader concerns about trade provisions that enable foreign companies to challenge health, labor and environmental standards. Once a country ratifies a trade agreement, its terms supersede domestic laws. If a country’s regulations are found to impose unreasonable restrictions on trade, it must amend the rules or compensate the nation or foreign corporation that brought the complaint.

Advocates say countries should be free to decide how best to protect public health, without being second-guessed by unelected trade panels. Moreover, they argue, tobacco products, which kill when used as intended, should not be afforded the trade protections of other goods and services.

Worldwide, nearly 6 million people a year die of smoking-related causes, according to the World Health Organization, which says the toll could top 8 million by 2030. With fewer people lighting up in wealthy nations, nearly 80 percent of the world’s 1 billion smokers live in low-and middle-income countries.

Countries have been emboldened to pass more stringent measures by the Framework Convention on Tobacco Control. In effect since 2005, the treaty has committed about 175 nations to pursue such measures as higher cigarette taxes, public smoking bans, prohibitions on tobacco advertising, and graphic warning labels with grisly images such as diseased lungs and rotting teeth. (The U.S. has signed the treaty, but the Senate has not ratified it. The U.S. Food and Drug Administration has ordered graphic warnings for cigarette packs, but an  industry court challenge on 1^stAmendment grounds has stalled the rule.)

Read the full article at its original location>

Robert Proctor is a historian from California’s Stanford University who has published extensively on the tobacco industry in books and academic papers.

He’s also no stranger to tobaccolitigation, having testified in some 30 trials.

He was called to testify on behalf of the plaintiffs behind a landmark $27 billion lawsuit in Quebec that pits an estimated 1.8 million Quebecers against three major tobacco manufacturers.

The defendants—Imperial Tobacco Canada Ltd.; Rothmans, Benson & Hedges; and JTI-Macdonald—have argued that the dangerous health effects of tobacco have been common knowledge for decades and there was no conspiracy to hide it.

Justice Brian Riordan decided late Monday that he wanted to hear from Proctor. He admitted as evidence part of his 100-plus page report, which critiques other reports done by three industry-paid historians on how much Quebecers knew about tobacco risks.

Lawyers for the tobacco firms spent the day attacking Proctor’s credibility. They tried to convince the judge that the professor had an agenda beyond critiquing historians’ reports.

The judge allowed about 30 pages into the record.

As for the rest of his report—which one tobacco lawyer described as 75 pages of anti-tobacco advocacy—Riordan said he would take it under advisement.

Proctor doesn’t couch his words when describing what conclusions he draws about the tobacco industry from his research. He has described tobacco companies in writings as liars, cockroaches and cancer-mongers and he says cigarettes should be abolished.

Proctor did not hide his opinions Monday.

“I believe it is wrong for an industry to kill millions of people,” said the author, researcher and self-described public health advocate, during a hearing to determine whether he should be granted expert status.

“I’m open to alternative views, but I’m not neutral about what your client has done to the lungs of the world.”

Proctor, who has more than a quarter-century of experience, has testified in dozens of trials in the United States. He admits that he has earned more than $1 million for doing so. He has never once been disqualified from testifying.

“I’m fair, but I do think bad things have been done by the tobacco industry,” Proctor said under questioning.

“I don’t think the tobacco industry wanted to kill people. I think it was more negligence,” he added. “I’m glad they are being brought to justice. That’s a good thing.”

His testimony is the latest in a case that is described as the biggest class-action lawsuit in Canadian history.

It’s not common for experts to be excluded from testifying, one of the tobacco lawyers said. But he argued that the court had an obligation to prevent Proctor’s testimony.

“The Supreme Court has said as recently as 2011 that the court has a gatekeeper function,” said Doug Mitchell, a lawyer representing JTI-Macdonald.

He and other tobacco company lawyers argued that not only is Proctor biased, he knows nothing about Canada or Quebec, and he cites documents not in the record in his report.

Another lawyer, Simon Potter, representing Rothmans, Benson & Hedges, questioned whether Proctor’s testimony was necessary.

“Is this person, this expert, going to help the court, as an expert should, with objective, helpful advice from a specialized field when the court is unable to decide without it?” Potter said.

“I think the answer is no.”

But the lawyers representing two plaintiffs dismissed the arguments from Big Tobacco and said it wasn’t Proctor’s mandate to know Canadian tobacco history.

“Based on a lifetime’s work, you have certain ideas, based on evidence,” said plaintiff lawyer Bruce Johnston. “Surely that cannot disqualify you from working on a file because that would result in the most qualified people being excluded.”

Plenty of witnesses have already appeared before the Quebec Superior Court since the trial began last March, including numerous former and current tobacco industry executives.

The case has already heard more than 80 days of testimony with thousands of pages of documents filed into evidence.

It has taken 13 years to reach the trial phase. It stems from two cases that were filed in 1998, certified and consolidated in 2005 by Quebec Superior Court, and there were motions, delays and appeals before it got underway in 2012.

Proctor’s testimony on his report begins Tuesday morning.

See this article at its original location>