New analysis of the leaked Intellectual Property Chapter of the Trans-Pacific Partnership Agreement (TPP) finds potential
threat to tobacco-control measures, and the sovereign ability of nations to protect public health from tobacco-related disease
and death. (See complete CPATH Analysis.)
Understandings Regarding Public Health
Measures provide significant loopholes for tobacco companies to file trade charges, while offering no clear legal protection
of public health.
Reference to the
“TRIPS/health solution” does not apply to tobacco products, or to protection of public health from tobacco-related
disease or death. (Focus on the TRIPS/health solution also limits
the right of all TPP countries to provide access of medicines to all, for example, by granting compulsory licenses
to produce affordable generic drugs to meet public health needs within their own borders.)
Lack of agreement on language to ensure regulatory coherence between preexisting public health agreements
and TPP intellectual property provisions sets the stage for future trade conflicts between the TPP IP Chapter
and other agreements which promote public health, such as the Framework Convention on Tobacco Control (FCTC).
New rights to use trademarks as “geographical indications” could
grant new rights to tobacco companies to protect their use of brand-names, such as Marlboro, Winston, and Salem.
Enforcement of IP protections for tobacco companies remain protected under the Investment
Chapter. “Investor-State Dispute Settlement” (ISDS) under the Investment Chapter grants
corporations the power to file trade challenges directly against the laws of a nation. The TPP Investment Chapter
expands preexisting investment agreements among TPP countries. For example, the TPP Investment chapter could give
Philip Morris International, a U.S. investor, standing to challenge the law of a TPP country.
TPP
partner countries should advance and reach agreement on 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.
