One issue that has been a headache for USTR but has received little public attention is how to treat tobacco. Government health agencies and public health groups have called for tobacco to be treated differently than “normal” consumer products and services. Last May, the administration announced that a draft tobacco exception had been hammered out and would be proposed to the other negotiating countries. Like the rest of the negotiating text, the actual language of the exception is secret, but from its description it would seem to give some protection to the FDA’s authority to regulate tobacco products. Significantly, it also recognizes the unique nature of tobacco products, i.e. that when used exactly as intended, they kill.
Unfortunately, nearly a year and several negotiating rounds later the tobacco exception has yet to be proposed. There are only two or three rounds left if the completion date is to be realized, and time is running out for other countries to fully consider the proposal.
The rationale for treating tobacco differently than other products is obvious. Liberalized trade is meant to increase consumption, the opposite of what we ought to be doing for tobacco. In fact, two pieces of federal law, the Doggett amendment and a Clinton-era executive order, forbid the U.S. government from promoting the sale or export of tobacco products.
There is also a global consensus on the tobacco epidemic, most notably the WHO Framework Convention on Tobacco Control (FCTC), the world’s first public health treaty. The FCTC has been ratified by 175 countries, including the other 10 TPPA nations. The U.S. has signed the instrument, but it has never been submitted to the Senate for ratification. However, the 2009 Family Smoking Prevention and Tobacco Control Act was meant, in part, to put the U.S. in compliance with the FCTC.
The risk of inaction on tobacco in trade agreements is not theoretical. The tobacco industry has a long history of using trade law to threaten, undermine or repeal tobacco control measures, a practice that has accelerated dramatically in the years since the FCTC came into force. Last year, the U.S. lost a case against Indonesia over a ban on candy and other flavorings in cigarettes. Philip Morris International is involved in trade litigation against Australia and Uruguay over package regulations, and recently lost a case against Norway.
The industry’s strategy is not simply to win lawsuits and overturn regulations that hurt their profits. Their hope is to impose a cost on governments that try to offer greater public health protections, in the form of high legal fees, thus creating “legal chill.” Last month, New Zealand announced that it will hold off on passing Australia-style packaging laws until the trade cases against Australia are decided, and the government of Uruguay has admitted that it would have been forced to back down in its case had it not received outside financial help from New York City Mayor Michael Bloomberg.
Tobacco is expected to kill one billion people this century, a ten-fold increase over the last century. It is the world’s number one preventable killer, and the U.S. should take the lead in curtailing its spread.
Bostic is deputy director for Policy at Action on Smoking and Health.