How the Tobacco Companies will use the Trans-Pacific Partnership Agreement to Block Sensible Public Health Policies Stanton A. Glantz, PhD Eric Crosbie, MA University of California, San Francisco 13th Round of TPP Negotiations July 2, 2012

Tobacco Companies Sell 6 trillion cigarettes annually Kill 5.4 million annually By 2030 will kill 8 million annually 1 billion deaths expected for 21st century 80% of smokers now live in developing world WHO Tobacco Facts: http://www.who.int/tobacco/mpower/tobacco_facts/en/index.html

Tobacco Control Policies Work Smokefree policies Marketing bans Increased taxes Warning labels Prevent smoking and encourage cessation Improve health Rapid impacts on heart disease Cost multinational tobacco companies billions

Tobacco Companies Bigger Than Most Countries British American Tobacco $50 billion annual sales Philip Morris International $66 billion annual sales Larger than 139 countries’ GDP U.S.-$15 trillion Japan-$4 trillion Australia-$917 billion Malaysia-$447 billion Singapore-$314 billion Peru-$301 billion Vietnam-$299 billion Chile-$281 billion New Zealand-$123 billion Brunei-$21 billion -CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/rankorder/2001rank.html?countryName=Australia&countryCode=as&regionCode=aus&rank=19#as -Global Tobacco Industry: http://seekingalpha.com/article/237020-global-tobacco-industry-cigarette-cos-go-their-separate-ways-in-battling-regulation

Preemption Eliminate authority of governments to implement sensible public health policies to protect their people Local clean indoor air Companies routinely sue claiming preemption Even when not there Raise cost of protecting the public Deter action Bully governments -Nixon ML, Mahmoud L, Glantz SA. Tobacco industry litigation to deter local public health ordinances: the industry usually loses in court. Tob Control 2004;13(1):65-73. -Dearlove JV, Glantz SA. Boards of Health as venues for clean indoor air policy making. Am J Public Health 2002;92(2):257-265.

The tobacco companies will argue that the TPP preempts all tobacco regulation

Tobacco Company Plain Pack Group July 1994 Tobacco companies threaten governments even when their lawyers tell them they don’t have a case However a Plain Pack Group Slide Presentation in July 1994 showed that the tobacco companies initial international approach had failed as the international treaties offered little protection and other industries offered little support. Tobacco Company Plain Pack Group July 1994 tid/mjk78a99

Success in Bullying Governments In 1994 threatened governments with multi-billion lawsuits for damages Governments withdrew proposals for plain packaging out of fear of losing in court Australia (Paris Convention, WTO, TRIPS) Canada (Paris Convention, WTO, TRIPS, NAFTA) Delayed these innovations for decades

Current Attacks on Public Health Domestic Tobacco Control Policies Uruguay-Graphic Health Warning Labels covering 80% (2008) Australia-Plain Packaging (2012) Other governments seeking plain packaging (ex. New Zealand) PMI Bilateral Investment Treaty Challenges Uruguay-Switzerland BIT Australia-Hong Kong BIT -Porterfield MC. Philip Morris v. Uruguay: Will investor-State arbitration send restrictions up in smoke? http://www.iisd.org/itn/2011/07/12/philip-morris-v-uruguay-will-investor-state-arbitration-send-restrictions-on-tobacco-marketing-up-in-smoke/ -Nottage L. Investor-state Arbitration Policy and Practice after Philip Morris v Australia. http://blogs.usyd.edu.au/japaneselaw/2011/06/isa_claim.html

PMI involvement during TPP negotiations PMI lobbying USTR 2010-Submitted comments for ISDS mechanism PMI searching for new avenues to block public health policies PMI lobbying TPP member countries 2012-Sponsored a closed meeting with trade representatives from TPP member countries Violates WHO FCTC Article 5.3 -Submission of Philip Morris International in Response to Proposed Trans-Pacific Partnership Trade Agreement. 6 January 2010 Available at: http://donttradeourlivesaway.files.wordpress.com/2011/04/ustr-phillip-morris-submission.pdf. -United States Trade Representative. Free Trade Agreements: Trans-Pacific Partnership. 2012.

TPP Investor Rights Investor-state dispute settlement (ISDS) mechanism Allows foreign companies to “directly” sue governments Will unleash tobacco companies

Solution for Tobacco in TPPA Ambiguous language creates opportunities for the tobacco companies’ lawyers to exploit Simplest and best solution is complete carve out tobacco