WASHINGTON, DC 19 August – The Obama Administration has backed down from a proposal revealed 15 months ago to protect health from Big Tobacco under the Trans-Pacific Partnership (TPP), the pending free trade agreement with 11 other countries. New language concerning tobacco, the exact text of which has not been released, is expected to be proposed later this week at the next TPP negotiating round in Brunei. Legal analysts for the public health community, who were briefed Friday morning in a closed session by administration officials, agreed that the new proposal will do little to protect governments’ right to regulate tobacco.
“The draft TPPA benefits tobacco companies with zero tariffs, expanded investor rights, and greater limits on regulation of tobacco advertising and other services,” said Robert Stumberg, director of the Harrison Institute for Public Law at Georgetown University Law Center. “The revised U.S. position inserts the word ‘tobacco’ without touching the benefits for tobacco companies.”
The tobacco industry has a long history of using trade agreements to attack public health measures aimed at reducing tobacco use. Last year, the United States lost its final appeal in a suit brought under World Trade Organization rules by Indonesia over a U.S. ban on flavored cigarettes, including candy flavors clearly aimed at children. The case was a wake-up call for the U.S. public health community about the dangers to tobacco regulations posed by a web of trade obligations.
The draft TPP will make it even easier for governments to be sued for their tobacco regulations. Unlike the WTO, corporations will have the right under the TPP to directly sue governments, without the need of a state sponsor. Similar suits have already been leveled against a number of countries, including Australia, Uruguay, Norway and Turkey.
In May 2012, the United States Trade Representative announced a draft “safe harbor” clause to protect tobacco measures under the TPP. While the legal impact of that draft was quite narrow, the public health community applauded it as a good starting point and urged the administration to propose it in the TPP negotiations. However, the reaction from industry and pro-tobacco politicians was loud, negative and sustained. After 15 months and eight negotiating rounds, the “safe harbor” had still not been proposed.
“To its shame, the bulk of the corporate world stood shoulder to shoulder with the tobacco industry, demanding that no products receive special treatment,” said Laurent Huber, director of Action on Smoking and Health, the nation’s oldest anti-tobacco organization. “Their success will mean more lives lost, both here in the US and abroad.”
Tobacco killed about 100 million people during the 20th century, and globally tobacco use is rising rapidly. According to the World Health Organization, unless drastic action is taken it will claim 1 billion lives this century.
“The world is looking at a billion deaths from tobacco in this century. Rather than provide health leadership, the United States is helping the tobacco industry to repeat the cycle of disease it placed in our nation,” said Gregory Connolly of the Harvard School of Public Health.
“Our government’s trade policy is promoting the tobacco epidemic, this time in the poorest nations of the globe.” Dr. Connolly successfully challenged the US practice of compelling Asian nations to import US cigarettes or face unilateral trade sanctions. His work with Congress and scientific articles contributed to a Clinton Administration executive order removing tobacco from trade negotiations, which this latest action has reversed.
Negotiations for the TPP will resume on August 22nd in Brunei, and are set to conclude in October. In September, the Obama Administration will be asking Congress for so-called “fast track” authority, which would mean that Congress could only vote up or down on the final text, without the ability to suggest amendments.
Action on Smoking and Health (ASH) is the nation’s oldest anti-tobacco organization dedicated to health for all. Because tobacco is the leading cause of death worldwide, ASH uses global tools to counter the global tobacco epidemic.