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If Tobacco Policy is Protected in TPP, Why is US Proposing a New Exception?

(NZ Week / June 15, 2012) “US plans to table a specific exception of tobacco contradict the government’s reassurances that a Trans-Pacific Partnership Agreement would not restrict New Zealand’s right to introduce plain packaging or other tobacco control laws”, according to University of Auckland Law Professor Jane Kelsey.

“If the existing treaties are fine, why is the US introducing an exception?”.

Both sides of the tobacco debate have been lobbying intensively throughout the TPPA negotiations, especially in the United States.

The Obama government has been under intense pressure from public health advocates since a recent from the World Trade Organization struck down America’s ban on importing clove flavoured cigarettes from Indonesia.

The US had planned to table an exception specifically targeted at tobacco at the last round of negotiations in Dallas. It backed off after last minute interventions by Big Tobacco and politicians from the tobacco states. The US is now expected to table the compromise proposal before or at the next round that begins in San Diego on 2 July.

In stark contrast to the secrecy that surrounds the negotiations the US trade negotiations have been consulting extensively with a range of public health and industry groups, not just cleared advisers whom the US allows to see the text. While the actual wording has not been released, the content effectively has been.

Despite early excitement, it is clear that the US is not proposing a ‘carveout’ of tobacco from the TPP. This is a new exception, with familiar provisos that tobacco companies will be able to contest. Ironically, it could create even more uncertainty.

“In true US style, this exception only addresses issues of concern to the US. It does not apply to the investment chapter, so the special protections that Philip Morris is relying on in its investment disputes against Australia and Uruguay are not affected. Nor is their right to sue the government directly for allegedly breaching those rules”. , said Professor Kelsey.

“I understand that Australia and New Zealand are opposing the US measure – not because it is inadequate but because they cannot afford to concede that there are problems with the rules they has negotiated previously and are trying to defend now”, according to Professor Kelsey.

“The situation is a shambles. The only way to exclude tobacco from the TPP is a provision that reads: ‘Nothing in this Agreement applies to any measures that relate to tobacco’. Will our government do that? No.”

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