Dr Mary Assunta, Senior policy advisor of the Southeast Asia Tobacco Control Alliance (SEATCA) said, “Tobacco is NOT like any other product.  It kills half of its users, prematurely.  Tobacco is the only consumer product for which there is a global treaty which set international standards for its regulation and the treaty warns Parties to protect their public health policies from the tobacco industry.”

Assunta was referring to the WHO Framework Convention on Tobacco Control (WHO FCTC), to which almost all members of the ASEAN are signatories and obligated to reduce tobacco use. The WHO FCTC Article 2.2 says Parties entering into new agreements that may cover tobacco products require that these be “compatible with their obligations under the Convention and its protocols. Additionally Article 5.3 Guidelines, Recommendation 7.1 says the tobacco industry must not be given any incentives to run its business. Hence the TPPA, a new agreement, should reflect this clause.”

Tobacco products should be strictly regulated according to the FCTC and the TPP should not give the tobacco industry opportunities to increase its business or the ability to sue governments at the expense of people’s lives. The TPP should not apply to tobacco products.

“The objective of free trade agreements (FTAs) is market competition that increases product availability and diversity and reduce prices to the consumer,” Assunta acknowledged. “However, these goals are inappropriate for tobacco, as they would result in considerable harm to health. When it comes to tobacco products, ‘cheaper’ and ‘more’ are not better.” She added.

The TPP negotiations, is being held now  to 13 March in Singapore. “As parties to the WHO FCTC strive to implement commitments to reduce tobacco consumption, liberalized trade of tobacco can defeat the purpose of raising domestic tobacco taxes and other tobacco control measures,” SEATCA added. “Trade openness makes tobacco products more easily available, with a greater negative impact on tobacco consumption in low-income countries where most of today’s tobacco consumers live.”

Tobacco use is responsible for nearly 6 million deaths per year, and is on track to kill one billion people this century. Governments responded in 2004 by adopting the world’s first public health treaty, the WHO Framework Convention on Tobacco Control. The FCTC has been rapidly embraced, and includes 175 countries, including all but one of the TPP negotiating countries. Tobacco plain packaging and graphic warnings, point of sale bans and bans on flavored cigarettes, interventions found in the FCTC and its guidelines, have been subject to several high profile trade disputes initiated by tobacco industry interests in the past 3 years, causing serious concern in the public health community.

According to Mary Assunta, Senior Policy Advisor of the Southeast Asia Tobacco Control Alliance (SEATCA): “Although ten of the eleven countries negotiating the TPP are Parties to the international tobacco treaty, most trade negotiators at the 15^th Round of the TPPA in Auckland have little awareness of their obligations under the FCTC nor of the tobacco industry’s tactics to undermine public health. It is almost like they are running on parallel tracks with opposite destinations – one to reduce tobacco and the other to increase trade of tobacco products.”

The FCTC Conference of the Parties was held a few weeks ago in Seoul, and Parties at that meeting voted to exclude the tobacco industry from attending the negotiations relating to the FCTC. Governments at that meeting rejected Interpol’s application for observer status to the COP on the ground that it had received funding from a tobacco company (Philip Morris). This same policy has driven many governments to reject so-called Corporate Social Responsibility (CSR) from tobacco companies, and disallow it from interfering in policy development and implementation.

“In contrast to the FCTC policy to exclude the tobacco industry, the TPP seeks the input of the tobacco industry to promote free trade. This is not compatible with FCTC obligations,” according to Chris Bostic Deputy Director of Policy for Action on Smoking and Health, a U.S.-based anti-tobacco group.

Bostic, citing extensive legal research from the Harrison Institute, adds: “Trade negotiators have yet to officially recognise tobacco as a hazardous product. Tobacco is unlike any other consumer product. When used exactly as intended, it kills.”

Now into its 15^th Round, Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam have been negotiating the proposed TPP agreement since March 2010. Canada and Mexico recently joined the talks, and other countries are expected to follow.

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]]> http://ash.org/free-trade-agreement-ignores-global-tobacco-epidemic/feed/ 0 http://ash.org/are-we-being-duped-by-our-government-on-trade-negotiations/ http://ash.org/are-we-being-duped-by-our-government-on-trade-negotiations/#comments Wed, 12 Dec 2012 13:37:25 +0000 ash http://ash.org/?p=1917 ... Read the full article >]]> The 15^th negotiating round of the ongoing TransPacific Partnership (TPP) free trade agreement will end tomorrow in Auckland, New Zealand. This marks the fourth round that U.S. negotiators have failed to “table” (formally propose) a special exception protecting governments’ right to legislate on tobacco, which they promised back in May.

The public health community has not seen the text of the exception, because only big corporations are allowed to see the draft TPP text. But we’ve had it described to us at length. It was the result of painful negotiations among the United States Trade Representative (USTR), the White House, Health and Human Services, Congress, and Big Tobacco. As far as our experts can tell (not having seen it), it’s not great, but it would at least get the conversation about tobacco going amongst the TPP negotiators. There was a tacit agreement between the U.S. government and health groups that the latter would lay off criticizing (and even extolling the virtues of) the exception or the TPP in general in order to give the administration political cover to actually table the exception. So we waited. And waited. There were some hints that once the election was over, the political balancing would change and it would be tabled. It’s over, and it wasn’t.

Will it be tabled next time? USTR won’t say. When asked for a reason for the delay, they answer “We are still consulting on the text.” Which is a strange answer for two reasons. First, back in May USTR made a point of telling us that it was extremely difficult to agree on the text, and that a lot of political give and take was necessary. It took months. So how are revisions politically feasible? Second, who are they consulting with? They certainly haven’t been asking us for any input.

There are TPP negotiators from other countries who are keen to see the exception, and to see their tobacco regulations protected under the agreement. But in general, the U.S. holds most of the power in trade negotiations – smaller countries are reluctant to rock the boat, and so rather than propose something themselves, they would prefer to wait for the U.S. to start the conversation. We’ve been prepping them for 18 months on the tobacco issue, and they are ready to talk.

A trade expert pointed out recently that the U.S. tobacco proposal (as far as they could tell from not reading it) sounded a lot more like a reservation than an exception. Reservations are taken at the very end of negotiations, when most chapters have been closed. Is the U.S. simply going to protect its own tobacco measures at the last moment, and leave the other countries open to endless lawsuits from the tobacco industry? If so, was this the plan all along, or has the plan changed due to industry pressure? Either way, if the exception is never tabled, public health groups should be outraged at being lied to. And the administration should be ashamed. Their failure to act – and duplicitous treatment of constituents who largely supported it in the last election – will directly lead to millions of additional deaths.

President Obama, please do the right thing. There is no grey area here – the interests of Big Tobacco are directly opposed to the interests of public health. They are not a stakeholder, they are the vector of a disease that will kill one billion people this century.

Delegates attending trans-Pacific free-trade negotiations in the United States are being warned their countries could end up like Australia if they agree to allow corporations to sue governments in international courts.

Australia is fending off a challenge to its plain cigarette packets legislation from Philip Morris International under the terms of an obscure Hong Kong investment treaty even though Philip Morris has lost its case against Australia in the High Court.

“The Philip Morris company’s persistence with the investor state dispute settlement case shows such procedures are a threat to democratically enacted legislation and national judicial decisions,” Australia’s Patricia Ranald told stakeholders forum at the negotiations in Leesburg, Virginia.

The United States is insisting on so-called investor state dispute settlement (SDS) provisions in the Trans Pacific Partnership even though it does not have them in its existing free-trade agreement with Australia and even though Australia has said it will not sign a deal that includes them.

The Trans Pacific Partnership will encompass Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam, many of whom already have in their agreements with the United States clauses that allow corporations to sue governments in supra-national forums.

Philip Morris International moved the head office of its Australian subsidiary to Hong Kong shortly before it launched action against Australia under the terms of Hong Kong treaty in what Dr Ranald said was jurisdiction shopping.

“Philip Morris International described itself as a US-based company when it made a submission in 2010 to the US trade representative supporting an investor state dispute settlement process in the trans-Pacific partnership.”

“However, it claimed to be a Swiss-based company when it used an investor state dispute settlement process to sue the Uruguayan government for damages under a Uruguay-Swiss investment agreement when Uruguay introduced legislation restricting tobacco advertising.

“Philip Morris can also claim to be a Hong Kong company because Philip Morris Asia, incorporated in Hong Kong, invested in Australia by becoming the sole shareholder of Philip Morris (Australia) after the Australian government announcement of its intention to legislate for plain packaging of tobacco.”

Speaking as convener of the Australian Fair Trade and Investment Network the Sydney University academic told the forum Australia’s problems showed none of the eleven nations negotiating the treaty should agree to provisions that would allow corporations to sue them extra-nationally.

Sean Donnelly from the US Council for International Business told the forum investor state dispute settlements procedures did no more than give international investors access to the rule of law.

He said business would like more protections, but believed what the US was proposing struct the right balance.

The 14^th round of TPP negotiations started on the 6^th and will continue through the 15^th in Leesburg, VA. The negotiations are closed-door and the draft text is kept secret, largely even from members of Congress. ASH has helped form a loose coalition of experts and advocates from the nine negotiating countries which has talked to negotiators over the past 14 months to press for the unique treatment of tobacco in the TPP.

Linda Menghetti, an expert on investment issues who formerly served as vice president of the Emergency Committee for American Trade, left that position at the end of August and has moved over to the National Association of Manufacturers (NAM), where she is taking the position vacated by Frank Vargo, sources said.

Vargo retired last June after serving for years as NAM’s vice president for international affairs. In her new role, Menghetti will likely have a hand in hiring a replacement for Steve Jacobs, who left his job as senior director for international business policy at NAM earlier this year in order to work for Philip Morris International.

Philip Morris is vehemently opposing U.S. efforts to craft tobacco-specific provisions in a TPP deal, and is working with other business groups and members of Congress to gin up opposition.

In another big move, the biotechnology company known as Amgen this summer hired Paul Neureiter to serve as executive director for international government affairs. Neureiter previously served as senior director for international trade at Pfizer Inc., and before that covered trade-related insurance issues for The ACE Group.

Amgen is pushing hard to convince the Obama administration to demand stringent intellectual property protections for biologic drugs in the TPP talks. At Amgen, Neureiter now works alongside Catherine Robinson, who joined the international corporate affairs team at Amgen last year after covering high-tech trade issues at NAM for years.

In his previous role at Pfizer, Neureiter worked with Doug Goudie, who served as NAM’s director of international trade policy for five years before joining Pfizer last January as its director of international government affairs.

Kathryn Dickey Karol is joining Caterpillar Inc. next week in the newly created position of vice president with responsibility for global government and corporate affairs. Karol previously served as vice president of global government and corporate affairs for Amgen, a position she had held since 2006.

Prior to her work at Amgen, Karol served as executive director of government affairs for Eli Lilly & Company, according to a Caterpillar press release.

Rounding out the job swaps, the Center for Strategic and International Studies (CSIS) announced on Aug. 28 that Scott Miller, the former director of global trade policy at Procter & Gamble, has joined CSIS as the new William M. Scholl Chair in International Business.

Miller takes the place of Meredith Broadbent, who has been appointed to the International Trade Commission.

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You may recall earlier this year when the U.S. lost a legal appeal over its ban on candy flavorings for cigarettes, flavorings clearly meant to attract children to start smoking. The plaintiff in that case was the nation of Indonesia, which exports a lot of clove-flavored “bidis” to the U.S. The court was an international trade tribunal formed by the World Trade Organization. Under WTO rules, a country may drag another country to court over any laws that it feels violate trade rules. The decisions are binding, and the trade tribunals’ final decisions cannot be overruled, even by the U.S. Supreme Court.

ISDS creates a similar right to sue over any law that impacts trade, except that it allows any corporation to sue a country in an international trade tribunal. In the example above, the Indonesian tobacco industry would not have needed to convince the government to sue on its behalf. It could do so on its own. And the suits need not be against federal laws. They could go after state and local tobacco laws and regulations as well.

The reason this is particularly problematic for tobacco is that the tobacco industry has publicly stated that its strategy is to sue even when they don’t have a good case, just to impose an economic punishment on governments who try to reduce smoking. Trade cases cost millions of dollars each, win or lose. The federal government may be able to afford a vigorous defense, but states, counties and cities already facing historic deficits are a different story. Industry’s goal is to “chill” governments from passing tobacco control laws in the first place, just to avoid costly court cases.

For a real life example of what ISDS can mean in the face of a cynical, rich industry, read about Australia’s experience>

Philip Morris Australia, now known as Philip Morris Asia, will argue the treaty prevents Australia from depriving a Hong Kong entity of its investments or subjecting it to ”measures having effect equivalent to such deprivation”. Which it does, with a caveat. As a party to the treaty, Australia is permitted to deprive a Hong Kong company of its investments so long as it does so ”under due process of law for a public purpose related to the internal needs of that party on a non-discriminatory basis”. So Australia ought to be in the clear.

But the almost comic attempt to get mileage out of the treaty (moving from Australia to Hong Kong in order to complain that it was being discriminated against because it was from Hong Kong) masks a broader, more serious attempt to turn trade treaties into instruments that allow corporations to sue governments.

The World Trade Organisation allows no such thing. Its disputes settlement procedure allows a nation to haul another nation before a disputes settlements panel, but not corporations to do so.

That could be why on Friday it will be Ukraine that will ask the WTO to set up a panel to hear its plain-packaging dispute with Australia rather than a tobacco company. There’s a suspicion that Ukraine is acting on behalf of a tobacco company, perhaps fuelled by its ranking on the Transparency International Corruption Perceptions Index (at the corrupt end of the scale, sandwiched between Russia and Zimbabwe) and by the fact that it has next to no tobacco trade with Australia.

The dispute will take four months to hear. With appeals, it could take up to 14 months. But it won’t unduly trouble Australia. A member of the WTO rather than a corporation will be taking action, it will have to show clearly how Australia’s plain packs law offends against WTO rules (which allow non-discriminatory measures that benefit health) and because Ukraine’s national interests are not at stake it is likely to run out of enthusiasm before Australia does.

Big Tobacco, and fellow travellers in surprising places, want much more. They want what is known as an Investor State Dispute Settlement Mechanism. They want it in order to allow them to drag Australia and other sovereign governments before specially constituted international courts.

They don’t usually put it that bluntly. Here’s how Philip Morris International put it in a briefing note for the US trade representative negotiating the so-called Trans-Pacific Partnership with 11 nations including Australia: ”Philip Morris International considers the availability of an investor-state dispute settlement mechanism – including the right for investors to submit disputes to independent international tribunals – a vital aspect of protecting its foreign investments.”

It is clear what Philip Morris is getting at. Four of the 30 paragraphs in the briefing note seen by BusinessDay complain about Australia’s plain-packaging law. As it happens, the US trade representative is unable to do the bidding of Philip Morris. US law prevents federal agencies from promoting the sale of tobacco overseas. But the trade representative is willing to do the bidding of other corporations that would like to sue foreign governments in supranational courts.

In fact in all but one of the 13 free trade agreements negotiated by the US, its representatives have managed to insert such a clause. The exception is the free trade agreement with Australia. Although criticised at the time for giving too much away to the United States in return for very little, on the question of an outside Investor State Dispute Settlement Mechanism the Howard government stood firm.

The Gillard government is standing firm, too. The multinational nature of large Australian corporations means it would effectively be giving them (but not our citizens) an international right of appeal against laws approved by the High Court.

The US is unlikely to give up. It already has such a clause in its agreements with Canada, Chile, Mexico, Singapore and Peru – five of the nations that would form part of the Trans-Pacific Partnership.

Its best hope would be that a new Abbott government saw things differently. It would, if it succumbed to lobbying from Australia’s own Chamber of Commerce and Industry. ACCI is lobbying hard, putting out a statement this month headed crudely: ”Australian Foreign Investment Requires Right to Sue Foreign Governments”.

It says its ”campaign” is backed by the International Chamber of Commerce, which is hardly surprising but also hardly a sign the backers have Australia’s interests at heart.

Julia Gillard and Trade Minister Craig Emerson are standing up to them. Will Tony Abbott?

By Peter Martin

See this article at its original location >

The next negotiating round of the Trans- Pacific Partnership will take place in Leesburg, Virginia from September 6-15, 2012. USTR will be hosting a Direct Stakeholder Engagement event on Sunday, September 9, 2012. ASH urges the United States Trade Representative to submit its draft tobacco exception when negotiators meet in Leesburg Virginia to discuss the TPP, a giant free trade agreement among 11 countries.  USTR announced the exception in May, but two negotiating rounds have now come and gone and our negotiation partners have yet to see it.

For additional information visit USTR >