[CTC] [CPATH] TPP Caves to Tobacco Industry

[Ellen Shaffer]

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*TPP Caves to the Tobacco Industry, Threatens Public Health*
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=S6D29p1e%2FBYvh%2FWz0ywyaBNrJT%2B8IWxB>

Ellen R. Shaffer PhD MPH, Joseph E. Brenner MA, Co-Directors, CPATH

November 5, 2015                                      415-922-6204
415-922-6204

The vacuous “tobacco control” provision in the Trans Pacific Partnership
(TPP) virtually capitulates to the demands of multinational tobacco
corporations, jeopardizing nations’ health and economic welfare.  Public
health and medical advocates in the U.S. and abroad consistently urged
negotiators to exclude tobacco control protections
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=FJ%2BIb7WE9fue9Q4W9K2pWas22pk62lW0>from
trade challenges under the TPP.  But tobacco industry opposition won the
day, bolstered by corporate allies concerned that addressing the uniquely
lethal effects of tobacco in trade agreements could set a precedent for
reining in their own practices.

Tobacco companies increasingly turn to trade rules to delay and defeat
popular initiatives to prevent or end addiction to lethal tobacco products.
Trade rules grant corporations the right to directly contest and possibly
overturn nations' public health and other policies.  Governments can
similarly challenge each other’s tobacco control measures as trade
violations. Countries that lose a trade challenge face stiff financial
penalties, payable to the complaining corporation, or government.

*What The TPP Says*

Chapter 29 of the TPP
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=mhye3spVHpAp3Nbv%2BPdQaxNrJT%2B8IWxB>
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=8XAnqTWBNH3tt9FalA4esBNrJT%2B8IWxB>,
released today, states that any TPP nation has the right to “elect to deny”
access to a trade dispute by corporations for “claims challenging a tobacco
control measure”.  The country could make this election before such a
challenge is submitted to arbitration, or “during the proceedings.”  If a
country “elects to deny benefits with respect to such claims, any such
claim shall be dismissed.”

Footnote 12 hastens to assert that governments retain the right to
challenge each other’s tobacco control measures.

Footnote 13 clarifies further that a “tobacco control measure” means a
“measure of a Party related to the production or consumption of
manufactured tobacco products (including products made or derived from
tobacco), their distribution, labeling, packaging, advertising, marketing,
promotion, sale, purchase, or use, as well as enforcement measures, such as
inspection, recordkeeping, and reporting requirements. [A] measure with
respect to tobacco leaf that is not in the possession of a manufacturer of
tobacco products or that is not part of a manufactured tobacco product is
not a tobacco control measure.”

*An Invitation to Political Racketeering, Declining Public Health*

This "tobacco control" provision forces each TPP partner country to choose
to exercise protection for tobacco control measures, instead of providing a
guarantee under international law.  It subjects public health in TPP
partner nations to being whipsawed by the political whims and economic
agendas of powerful industries, as the political inclinations of elected
administrations change.  One official speaking informally with CPATH stated
that the U.S. does not “need” such an election, as the U.S. can afford to
defend itself, and has “never lost such a claim.”  In fact, the U.S. lost
in the case of Indonesia’s trade challenge of a ban on clove cigarettes,
and has lost trade challenges at the bilateral level, such as the internet
gambling dispute.  Defending against any trade dispute is costly.

It is unclear what mechanism a country would exercise to activate this
provision, or what recourse would be available to state and local officials
or the public in the event of an unpopular decision at the federal/national
level not to exercise the “election to deny” a tobacco-related trade
challenge.

In addition, by requiring each country to take unilateral action to elect
to deny the use of the TPP’s trade dispute mechanism, it leaves that
country subject to charges that it is violating other agreements that
include an investor-state dispute systems (ISDS), or violating WTO
agreements. In fact, Australia currently faces trade charges at both the
ISDS and WTO levels, due to anti-smoking graphics and health warnings on
cigarette packages. Some officials and advocates have expressed caution
about acknowledging that any of its tobacco control measures are in any way
not compliant with trade rules.

This provision is an ongoing open invitation to the global tobacco industry
to sharpen its arrows to ensure that no country executes this option to
safeguard public health and protect tobacco control measures.  The TPP
invites political racketeering and pernicious lobbying at every level of
government to protect the prerogatives of the tobacco industry, in alliance
with any and every other commercial enterprise that might conflict with
public health protections.

The alternative is to build on the international consensus that population
health is paramount, and to set an international health standard as a first
step, making it a violation of international law to pursue a trade
challenge in the case of tobacco control measures.

*Tobacco use costs the U.S. far more in lives and health care expenses than
tobacco farming or manufacturing contribute to the economy. *

·       Tobacco use kills 1,200 Americans daily.  Cigarette smoking is
responsible for an estimated $193 billion in annual health-related economic
losses in the U.S. (nearly $96 billion in direct medical costs and an
additional $97 billion in lost productivity
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=qXelw6%2FfM%2FsO4or4txMjzhNrJT%2B8IWxB>
).

·       In contrast, total tobacco exports generate 0.10 percent (one tenth
of one percent) of total U.S. annual exports (.07% unmanufactured, and .03%
manufactured
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=QdIPpA1kJsvdSXCWPlwmnBNrJT%2B8IWxB>
). Tobacco manufacturing has declined exponentially in the U.S
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=14r9mvaU46DytufUGH2qDxNrJT%2B8IWxB>
., and tobacco farming is also in decline, due in part to U.S. programs
intended to facilitate the transition to more sustainable crops
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=GNzaBEYAo2Aa2Q2ogLUMxBNrJT%2B8IWxB>
.

·       Exports of cigarettes and other U.S.-manufactured tobacco products
dropped from $3.9 billion in 1999 to $488 million in 2011
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=Ss0b4ANulO%2BovGzWd3A9%2FRNrJT%2B8IWxB>,
as large U.S. manufacturers sold off their international businesses or
formed subsidiaries located abroad. Ninety-eight percent of exported U.S.
cigarettes go to 5 countries, only one of which is a TPP partner (Japan).
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=VbvHQpyz7iNksqMQMZBCGRNrJT%2B8IWxB>
  Lower tariffs would lower the price of tobacco products, resulting in
cheaper prices and increased consumption and use, especially among younger
people. For this reason, international health policy and U.S. law prohibit
the U.S. from using trade agreements to promote the sale or export of
tobacco products. Yet the U.S. proposes in the TPP to eliminate tariffs on
tobacco products.  Other TPP partners can reasonably object to encouraging
the import of U.S. brand cigarettes.

Tobacco is the only legal consumer product that kills when used as
intended. Tobacco use is the leading preventable cause of death worldwide,
accounting for 6 million preventable deaths annually
<http://salsa3.salsalabs.com/dia/track.jsp?v=2&c=CYaa6cd72%2BKma8iOoWwnjBNrJT%2B8IWxB>,
and
is a major contributor to the global pandemic of non-communicable diseases,
including childhood morbidity and mortality.  As a unique product, it must
be treated differently from other products and services that are traded
across borders.

*THE TPP TEXT IS NOW POSTED ONLINE.*
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-- 
Dr. Ellen R. Shaffer, PhD MPH
Asst. Clinical Professor, UCSF
Co-Director, Center for Policy Analysis on Trade and Health/CPATH
P.O. Box 29586
San Francisco, CA 94129-0586
Phone 415-922-6204
www.cpath.org
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