| The Trans Pacific Partnership is now online
Limited TPP Tobacco
Control Deal: Not Enough
- Ellen R. Shaffer, Joseph E. Brenner
Nov. 5, 2015
The Public health and medical advocates in the U.S. and abroad consistently urged negotiators to
exclude tobacco control protections 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. Trans Pacific Partnership (TPP) would not end trade-related threats to nations’
health and economic welfare.
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.
Chapter 29 of the TPP, 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
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).
· 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). Tobacco manufacturing has declined exponentially in the U.S., and tobacco farming is also in decline, due in part to U.S. programs intended to facilitate the transition to more sustainable crops.
· Exports of cigarettes and other U.S.-manufactured tobacco
products dropped from $3.9 billion in 1999 to $488 million in 2011, 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). 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, 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.
December, 2013: New Statements Call for Tobacco Carve Out from TPP
From Malaysia Cancer Society and health groups:
We are writing to express our continued support to the government for the exemplary leadership shown by tabling a
tobacco carve-out in the Trans-Pacific Partnership (TPP) negotiations. The international public health community has praised
Malaysia for taking this decisive stand on tobacco in the TPP. This proposal coming from a developing country has made it
all the more pertinent as the increasing burden of the tobacco related disease and death are faced by developing countries.
It is our sincere hope that Malaysia will follow through on this proposal on the tobacco carve-out in the TPP negotiations.
We are very concerned particularly with the intellectual property chapter which is part of
the TPP. The recently leaked text reveals that the expansion of trademark rights and extension of right holder privileges
will unduly benefit the tobacco industry and increase their capacity to sue Malaysian government on laws on graphic warning,
misleading descriptors and advertising. ban. It took many years of hard work to enact these measures to protect the public
from the hazards of tobacco use and it would be a tragedy to have them challenged and come undone by the tobacco industry.
The TPP should not increase the power of corporations to influence regulation and reduce the ability of the government to
adopt and implement tobacco control measures.
American law experts say the 'exception'
proposed by the USA on tobacco control is weak and adds nothing to the existing extremely difficult to use health exception
which the USA has never allowed to apply to the investment or intellectual property chapters.
Click here for Malaysia letter
Also: New letter, AAP-CA
Letters for Tobacco Carve-Out, Oct.-Nov.
See Below for Letters from the:
* Association of State and Territorial Health Organizations (ASTHO)
* California Conference of Local Health Officers (CCLHO)
* Alameda County Health Commission
* California Public
Health Association - North (CPHA-N)
Click here for ASTHO letter
Click here for CCLHO Letter
Click here for Alameda County Health Commission Letter
Click here for letter from CPHA-N
Congress: U.S. Should Lead the Fight Against Tobacco
Oct. 30, 2013 - Representatives Waxman and Doggett initiated a
letter to the President, signed by 56 members of the US House of Representatives, expressing disappointment with the USTR's
tobacco proposal to the Trans Pacific Partnership (TPP). They urge the USTR to protect tobacco regulations from
trade disputes, and not to reduce tariffs. The signers include 12 New Dems, who are usually pro trade, and 11 Dem
members of Ways and Means Committee that has jurisdiction over trade issues. Notably the Ranking Democrat on Ways and
Means, Sander Levin, signed the letter.
Click here to download House Tobacco-TPP Letter
Carve Out Tobacco from the Trans Pacific Partnership
(Text of Petition delivered to USTR)
Malaysia introduced language to exclude tobacco from the scope of the Trans Pacific Partnership (TPP),
on August 26, 2013, during the 19th round of negotiations. Referred to as “carving
out” tobacco, Malaysia's proposal would take tobacco control measures and tobacco products out
of the scope of the TPP, or exclude tobacco from the application of the agreement. Typically, the language would
be: “Nothing in this agreement applies to measures that relate to tobacco and tobacco products.” CPATH
and public health allies have long advocated carving out tobacco from trade agreements, as recent statements below
At the same time, the U.S. proposed language that involves
creating consultation procedures in the event of a tobacco-related dispute and includes a provision to emphasize that tobacco
control measures are “health measures.” Maine legislators deemed this proposal "without legal significance."
The TPP involves 12 countries Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, USA, and Vietnam. Other countries that were reportedly invited in the past to join the negotiations
inclide India, Korea, Philippines, and Thailand. The TPP countries are seeking to conclude negotiations by the end of 2013.
Click here to download PHI letter
Letter to Pres. Obama from Mary Pittman, President/CEO, Public Health Institute (PHI) [excerpt]:
request that the US Trade Representative seek to "carve out" tobacco control measures and tobacco products from
the Trans-Pacific Partnership (TPP), and remove Investor State Dispute Resolution language from the agreement.
that allow dangerous loopholes to remain in the TPP would continue to jeopardize tobacco control, and could measurably and
negatively affect public health. Permitting trade challenges such as Indonesia's on the basis of the product's country
of origin, or offering a "safe harbor" for consideration by trade tribunals in the case of some narrowly defined
regulations, are not compromises; instead they contradict the intent and effect of exclusion.
and promotes research, leadership and partnerships to build capacity for strong public health policy, programs, systems and
Click here for SEATCA Report
SouthEast Asia Tobacco Control Alliance FAQ
on Tobacco Carve Out
This briefing and FAQ by SEATCA explains why a carve out is essential to protect tobacco control measures, how it
closes gaping loopholes built in to proposals for a "safe harbor" and pro-forma consultations, and other critical
Click here for APHA letter 10-2-13
To USTR (excerpt): "On behalf of the American Public
Health Association, a diverse community of public health professionals who have championed the health of
all people and communities around the world for more than 140 years, I write to urge the administration to ensure
that strong tobacco control measures to protect the public’s health are preserved in the Trans-Pacific
"Malaysia recently offered
a proposal for a complete carve-out of tobacco control measures from the trade agreement, which
would grant real protection for participating countries to enact and maintain tobacco use reduction
efforts. We encourage the USTR to work with Malaysia and others to support a proposal that provides the greatest protection
against future acts of subversion."
CPATH, AAFP, AAP, ACOG, ACP TO PRESIDENT: CARVE OUT TOBACCO, 9-11-13 (Click to download)
Dear Mr. President:
The Center for Policy Analysis on Trade and Health (CPATH) together with
the American Academy of Family Physicians (AAFP), American Academy of Pediatrics (AAP), American College of Physicians (ACP),
and the American Congress of Obstetricians and Gynecologists (ACOG) respectfully request your leadership to assure that tobacco
control measures and tobacco products are “carved out” of existing and future trade agreements, including the
Trans-Pacific Partnership (TPP), a 12-nation agreement currently under negotiation.
Tobacco use is the leading
preventable cause of death in the United States(1) and worldwide, and the only legal substance that, when used as intended,
kills people, causing 6.3 million deaths a year. In addition, cigarette smoking is responsible for about one in five deaths
annually(2) and a major contributor to the global pandemic of tobacco related non-communicable diseases. All of our organizations
support the WHO
Framework Convention on Tobacco Control, notably Article 5.3 on the protection of public health policies
with respect to tobacco control from commercial and other vested interests of the tobacco industry.
tobacco use must be a central element of policies to reduce preventable childhood,(3) adolescent and adult tobacco-related
morbidity and mortality, a key goal of the Administration.
Trade agreements and trade rules offer the tobacco industry
powerful tools to undermine and supersede local, state, and national measures to implement and enforce tobacco control measures.
Tobacco companies have recently accelerated their use of trade rules to
attempt to delay and reverse tobacco control
measures in the U.S., Australia, Uruguay, Norway, and Ireland. Eliminating these loopholes is of the utmost urgency.
We call on the United States to support a trade proposal in the TPP negotiations that will safeguard public health, advance
tobacco control measures that contribute to reducing the enormous burden of disease related to tobacco use, and prevent incursions
by the tobacco industry against those measures. Trade agreements must guarantee nations’ rights to protect public health
from tobacco use. A country's own standards should be determinative, as they currently are in the case of national security.
The TPP must not undermine the right and ability of participating countries from exercising their domestic sovereignty
in order to adopt or maintain measures to reduce tobacco use and to prevent the harm it causes to public health.
We are aware that Malaysia, one of our TPP trading partners, has announced its commitment to carving out tobacco.
Our organizations have consistently supported removing tobacco control measures and tobacco products from trade agreements
and want assurance that tobacco control measures will not be subject to challenge through the TPP and all future trade agreements.
We urge the U.S. to exercise leadership in diplomacy and in public health by agreeing to carve out tobacco control
measures and tobacco products from the TPP.
Center for Policy Analysis on Trade and Health (CPATH)
American Academy of Family Physicians (AAFP)
American Academy of Pediatrics (AAP)
American College of Physicians
American Congress of Obstetricians and Gynecologists (ACOG)
Ambassador Michael Froman, U.S.
Secretary Kathleen Sebelius, U.S. Department of Health and Human Services
Secretary Penny Pritzker,
U.S. Department of Commerce
Commissioner Margaret A. Hamburg, U.S. Food and Drug Administration
Frieden, U.S. Centers for Disease Control and Prevention
1 Centers for Disease Control and
Prevention. Smoking-Attributable Mortality, Years of Potential Life Lost, and Productivity Losses—United States, 2000–2004.
Morbidity and Mortality Weekly Report 2008.
2 U.S. Department of Health and Human Services. How Tobacco Smoke Causes
Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease. Atlanta: U.S. Department of Health and Human Services,
Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on
Smoking and Health, 2010.
3 Remarks by the President in the State of the Union Address, February 12, 2013.
HEALTH OFFICERS ASSOCIATION OF CALIFORNIA CALLS FOR TOBACCO CARVE-OUT
from letter to USTR, 9-6-13: The current USTR proposal on tobacco as it relates to the TPPA ... is too weak to be legally
significant. lt fails to cover the investment chapter - where the greatest litigation threat to tobacco control measures is
posed, as litigation against Uruguay and Australia demonstrates.
The current USTR proposal on tobacco for the TPPA leaves
the door wide open for the future use of Investor-State Dispute Resolution (ISDR) mechanisms by large international corporations
to challenge and overturn federal, state and local laws and regulations which govern tobacco control measures. lt is our strongly
held view that the tenets of the proposed TPPA should not be used by the tobacco industry to circumvent existing or evolving
public health law, either
in the United States or in other TPPA member nations.
Tobacco control measures
are a firmly established tenet of U.S. national, state, and local law. These important public health measures continue
to receive the broad support of elected officials on every level regardless of political affiliation.
Because of its
unique relationship with both individual health and public health, tobacco should be carved out from the trade provisions
of the TPPA. The efforts of individual nations to control tobacco and combat its adverse health effects should not be interfered
or impeded in any way by provisions of the TPPA or any other international trade agreement.
HOAC represents the physician health officers in California's city and county
Click here to download HOAC letter above supporting carve out
NY Times Editorial
August 31, 2013 The Hazard of Free-Trade
Give thanks to Malaysia
for heading off, at least temporarily, an American effort to weaken the ability of countries to impose stiff rules on the
sale of cigarettes and other tobacco products within their own borders. The Malaysian proposal to preserve that ability led
to a stalemate at a Trans-Pacific Partnership trade meeting in Brunei last week and forced the deferral of the issue to future
The United States and 11 countries bordering the Pacific Ocean had been engaged
in the latest round of negotiations over a treaty intended to lower tariffs and other barriers to commerce. One of the issues
was whether tobacco should be included in such a treaty or “carved out” so that health considerations could take
precedence over expanded trade. The issue pits health advocates against the tobacco industry and other commercial interests.
On public health grounds, tobacco ought to be excluded from whatever rules are designed to increase trade in
agricultural products. Reducing trade barriers to tobacco, a uniquely dangerous product, would serve to increase tobacco consumption
and lead to many additional deaths on top of an already high total. Tobacco killed an estimated 100 million people in the
20th century and is projected to kill 1 billion people in this century unless strong action is taken to mitigate the damage. A carve-out from trade rules is only
one tactic, but it could save millions of lives, especially in developing countries vulnerable to the industry’s pressure.
The United States, which in advance of the meeting had favored a relatively strong proposal to protect a nation’s
tobacco control measures from being challenged as violations of trade agreements, offered a weaker proposal in Brunei. The
American proposal simply refers to other international agreements that allow exceptions for public health and requires health
officials from the 12 Trans-Pacific Partnership countries to consult each other before making trade challenges. It would not
prevent the challenges from moving forward.
Mayor Michael Bloomberg, a strong advocate of tobacco control in
this country and abroad, rightly denounced the American proposal as “weak half-measures at best.” The proposal leaves the door open for multinational tobacco
companies to challenge legitimate tobacco control measures, as they already have in several countries in recent years.
Malaysia countered by proposing a complete carve-out of tobacco control measures that would protect a country’s
ability to set its own rules for marketing, advertising, banning or taxing various tobacco products, among other control measures.
The Campaign for Tobacco-Free Kids and several other medical and patient advocacy groups, including the American College of
Obstetricians and Gynecologists, applauded the Malaysian proposal. It would protect countries from the burdens and costs of
fending off trade challenges and from potentially stiff financial penalties if they lose. And it would remove the danger that
some countries might not enact strong tobacco control measures in order to avoid any possibility of challenges.
trade officials need to toughen their stance when Trans-Pacific Partnership negotiations resume. They should be siding with
the public and those concerned about public health, not the makers of products known to be lethal and highly addictive.
U.S. must take tobacco out of global trade talks
Mar, San Francisco Supervisor
San Francisco Chronicle, September 16, 2013 (excerpt)
Tobacco companies continue to aggressively market their deadly products across the country and around the world, through
insidious ad campaigns that target communities of color, low-income communities and the LGBTQ community. And they have found
a new arena to exploit their deadly products: international trade agreements.
San Francisco and California have led the way for years on policies designed
to reduce smoking and save lives, including raising cigarette taxes, banning smoking in public areas, limiting the advertising
and promotion of tobacco products, and reducing youth access to tobacco.
Trade rules, however, grant corporations rights to contest
local, state and nations' public health policies and tobacco control efforts. Countries that lose trade challenges face
stiff financial penalties, payable to the complaining corporation.
Unless our negotiators change course, the trans-pacific agreement
may extend the worst of existing trade agreements. Philip Morris has urged U.S. trade negotiators to eliminate all tariffs to make tobacco products cheap and widely consumed, and to expand
tobacco corporations' rights to challenge and eliminate existing protections on advertising, selling and using tobacco
products. Philip Morris should not get to use trade rules to erase local tobacco controls.
The U.S. trade representative will discuss
proposals on tobacco in Washington, D.C., with the trans-Pacific trade partners this week. The U.S. proposal offers less than
a fig leaf for trade rules that grant multinational tobacco corporations rights over public health protections, and often
The San Francisco Board of Supervisors unanimously passed Resolution 297-10 urging our trade leaders to change course to protect our health by excluding tobacco
and tobacco products from the Trans-Pacific Partnership Agreement and from all future trade agreements.
The United States should
support our city and our state and take tobacco off the negotiating table and out of trade talks.
Eric Mar represents District 1 on the
San Francisco Board of Supervisors.
Public Health, Medical Groups Applaud Malaysia's Historic TPP/Tobacco
Carve-Out Proposal Aug. 26, 2013 (excerpt)
applaud Malaysia's historic proposal to "carve
out" tobacco from the Trans Pacific Partnership (TPP), a trade pact now being negotiated by the U.S. and 11 other nations.
We have long urged the U.S. Trade Representative and the Department of Health and Human Services to take this common sense approach to safeguarding our laws and regulations that protect
kids from getting addicted to deadly tobacco products, and help smokers quit. We call on
the USTR and HHS to publicly support Malaysia's proposal for a tobacco carve-out.
The deadly and predatory tobacco industry has recently accelarated using trade rules to delay and reverse tobacco control measures that limit marketing in the U.S., Australia, Uruguay, Norway, and Ireland. Trade rules grant
corporations the right to contest a wide range of local, state and federal policies. Countries that lose trade challenges
face stiff financial penalties, payable to the complaining corporation.
Ensuring that no provisions of the TPP apply to
tobacco and tobacco products will protect public health policy space on tobacco, and avoid conflict with provisions of the
WHO Framework Convention on Tobacco Control (FCTC).
Action on Smoking and Health (ASH)
College of Obstetricians and Gynecologists
American Medical Students Association
Women's Health Book Collective/Our Bodies Ourselves
Center for Policy Analysis on Trade and Health (CPATH)
Human Rights and Tobacco Control Network (HRTCN)
International Association for the Study of Lung Cancer (IASLC)
for Social Responsibility, San Francisco Bay Area Chapter
Click here to download 8-26 Press Release Supporting Malaysia Carve-Out Proposal
Click here to download the 8-24 Statement
STATEMENT ISSUED 8-24-13 - SEE UPDATES ABOVE
The U.S. Trade Representative intends to introduce a proposal
on tobacco at negotiations to create the Trans Pacific Partnership (TPP), a trade agreement among 12 nations, at meetings
in Brunei this week. The proposal capitulates to multinational tobacco corporations, jeopardizing the nation's health
and economic welfare.
Tobacco companies have recently accelerated their use of trade rules to attempt to delay
and reverse tobacco control measures that limit marketing in the U.S., Australia, Uruguay, Norway, and Ireland. Trade
rules grant corporations rights to contest nations' public health and other policies. Countries that lose trade challenges
face stiff financial penalties, payable to the complaining corporation.
Public health and medical advocates in the U.S. and abroad have urged the USTR to exclude tobacco control protections from trade challenges under the TPP. The USTR informally floated a policy in 2012 that could create a "safe harbor"
for some tobacco control regulations. Many legal and medical experts noted that tobacco companies could easily exploit the
remaining substantial loopholes.
But the tobacco industry marshaled opposition claiming that the U.S. proposal might
actually reduce tobacco use, tobacco-related deaths, and tobacco sales. Other corporations backed up Big Tobacco, expressing
concern that addressing the uniquely lethal effects of tobacco in trade agreements could set a precedent for reining in
their own practices. On Aug. 15, USTR announced it would not advance that proposal.
The new proposal offers less than
a fig leaf for trade rules that grant corporations rights over public health protections, and often eliminate them.
It proposes simply to refer to the TPP the general health exception described in two multilateral agreements under the jurisdiction
of the World Trade Organization (WTO): Article XX of the General Agreement on Tariffs and Trade (GATT), and Article XIV
of the General Agreement on Trade in Services (GATS), and inserts a statement into the exception that repeats the self-evident
observation that tobacco measures are health measures. These exceptions offer significant loopholes that favor companies[U1] asserting trade charges.[i] The exceptions do not apply to investment claims that tobacco companies could bring under the TPP. Even in trade disputes,
the exceptions apply with great uncertainty in very limited situations. They require multi-year, multi-million-dollar
litigation to mount a defense – a burden that many countries cannot afford. The tobacco industry exploits the
cost and uncertainty of using the exceptions. (As a regional agreement, the TPP claims some latitude in varying from WTO
It also tacks on an additional layer of consultation among Health Ministers in the case of tobacco-related
trade challenges between nations, added to the procedures and rules already provided. In effect, it conscripts health
officials to consult in the context of trade rules they had no role in shaping, over trade challenges they did not initiate
and have no power to adjudicate.
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). [ii]
- 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).[iii] Tobacco manufacturing has declined exponentially in the U.S., and tobacco farming is also in decline, due in part
to U.S. programs intended to facilitate the transition to more sustainable crops.[iv]
- Exports of cigarettes and other U.S.-manufactured tobacco products dropped from $3.9 billion in 1999 to $488 million
in 2011, as large U.S. manufacturers sold off their international businesses or formed subsidiaries located abroad.[v] Ninety-eight percent of exported U.S. cigarettes go to 5 countries, only one of which is a TPP partner (Japan).3
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 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,[vi] 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.
We urge TPP Partner countries to advance proposals that promote public health and stem preventable deaths from diseases
related to tobacco, by guaranteeing nations’ sovereign domestic rights and abilities to adopt or maintain measures
to reduce tobacco use and to prevent tobacco-related deaths and diseases:
- Exclude tobacco control measures from
existing and future trade agreements.
- Do not request or agree to lower tariffs on tobacco leaf or products.
- Remove investor-state dispute settlement (ISDS) provisions; these grant tobacco corporations rights to contest nations'
public health and other policies directly for financial damages through the global trade arena.
- Set trade policy
through a transparent public process.
President Obama's 2013 State of the Union message promised to lead
an economy for the 21st Century, to reduce preventable deaths among youth, and to conduct policy transparently. Trade negotiations
that expand corporate rights and powers, while undermining the public's health, cannot advance sustainable economic
growth or wellbeing.
Action on Smoking and Health (ASH)
American Medical Students Association
Women's Health Book Collective/Our Bodies Ourselves
Center for Policy Analysis on Trade and Health (CPATH)
Human Rights and Tobacco Control Network (HRTCN)
International Association for the
Study of Lung Cancer (IASLC)
Physicians for Social Responsibility
 R. Stumberg, Safeguards for Tobacco Control: Options for the TPPA. America Journal of Law and Medicine,
39 (213); 382-441.
 Centers for Disease Control and Prevention. Smoking-Attributable Mortality, Years of Potential Life Lost, and Productivity Losses—United States, 2000–2004. Morbidity and Mortality Weekly Report 2008;57(45):1226–8 [accessed Aug. 17, 2013].
 FDA, Report to Congress. United States Tobacco Product Exports That Do Not Conform to Tobacco Product Standards. 3/8/13.
 U.S. Government Accountability Office report, "Illicit Tobacco: Various Schemes are Used to Avoid Taxes and Fees,"
accessed August 18, 2013, from www.gao.gov/assets/320/316372.pdf
 Thomas H. Frieden. http://www.upi.com/Health_News/2012/06/14/US-smoking-related-diseases-cost-96B/UPI-56571339724113/#ixzz2cH5erl4c
U.S. Tobacco Proposal Fails to be Legally Significant
Maine Citizen Trade Policy Commission (summary)
Senator Troy Jackson, Chair, Representative Sharon Anglin Treat, Chair 8/22//13
The TPPA should
not be used by the tobacco industry to circumvent existing or evolving public health law - either in the United States or in other TPPA member nations. Tobacco control measures are a firmly established tenet
of current U.S. law and continue to receive the broad support of elected officials on every level
regardless of political affiliation.
The current USTR proposal on tobacco and public health measures as it relates to the TPPA is so weak that it fails to
be legally significant.
First, USTR's proposal simply states the obvious: that existing language in the General Agreement on Tariffs and Trade (GATT) which establishes a nation's right to enact health and safety measures includes
tobacco measures. The WTO dispute panel noted in the
cigarettes dispute, "It is self-evident that measures to reduce youth smoking are aimed the protection of human health ... "
Second, as a general exception,
it does not cover the investment chapter - where the greatest litigation threat to chill, prevent or reverse
tobacco-control measures is posed, as litigation against Uruguay and Australia demonstrates. TPPA leaves the door
wide open for the future use of Investor-State Dispute Resolution (ISDR) mechanisms by large international corporations
to challenge and overturn federal, state and local laws and regulations which govern tobacco control measures.
Also, general exceptions do not apply to the chapter on
intellectual property and perhaps other new chapters such as those on regulatory coherence and state-owned
Finally, the consultation
provision proposed by USTR has no teeth. Even
if the consulting parties agree, consultation cannot block a challenge to a tobacco regulation. In any event, this consultation is irrelevant
to an investor-state challenge. From a U.S. state perspective, this provision is useless in that state health or other
subfederal tobacco regulatory authorities are not included in any consultation.
this proposal is woefully inadequate and may in fact be counterproductive for protecting the public health and welfare through our federal, state and local laws and regulations which govern tobacco control measures.
The CTPC favors a complete "carve out" of tobacco from the trade provisions of
TPPA. Any regulations or laws pertaining to tobacco should
be completely excluded from the TPPA. The efforts of individual nations to control tobacco and combat its adverse health effects
should not be interfered or impeded in any way by provisions of the TPPA or any other international trade agreement.
A public hearing on the treatment of tobacco in the TPPA would be
an effective way to convene the relevant parties and gather the information needed to draft an effective proposal that truly
protects public health and in particular, the health of our youth.
The Maine Citizen Trade Policy Commission (CTPC) is
authorized by Maine
State law [10 MRSA §11(3)]" ... to assess and monitor the legal and economic impacts of trade agreements on state and local laws, working conditions and the business environment; to provide a mechanism for citizens and Legislators to voice their concerns and recommendations; and to make policy recommendations designed to protect Maine's
jobs, business environment
and laws from any
negative impact of trade agreements." In carrying out its statutory mission, the CTPC has closely been following various developments relating to the proposed Transpacific Partnership
Citizen Trade Policy Commission c/o Office of Policy & Legal Analysis State House Station #13, Augusta, ME 04333-0013
Telephone: 207287-1670 http://www.maine.gov/legis/opla/citpol.htm
Bringing a Public Health Voice to Global Trade and Sustainable
Ellen R. Shaffer and Joe Brenner, Co-Directors
Box 29586, San Francisco, CA 94129