American Journal of Law & Medicine

The Trans-Pacific Partnership Agreement: A Gold-Plated Gift to the Global Tobacco Industry?

I. INTRODUCTION

Proponents of the Trans-Pacific Partnership agreement (TPPA) describe it as a twenty-first century agreement that will reach further behind the border than any previous free trade or investment agreement. As the chief executive of Business New Zealand said during the round of TPPA negotiations in Auckland in December 2012:

   It is true that TPP is more than just a trade negotiation. That's
   because TPP has the capacity to reach further into domestic
   economies and domestic policy settings than a conventional trade
   agreement--as it must if the essential requirements of business are
   to be addressed and a real difference made, for growth, jobs and
   community success. (1)

More specifically, the TPPA aims to frame how governments make their domestic policy and regulatory decisions as a complement to more extensive rules that constrain the substance of those decisions. These "disciplines" aim to empower commercial players and advance their interests, and to marginalize competing priorities, advocates, and agencies; including democratic political institutions.

Most critical analysts of the TPPA have not grasped this systemic intrusion into the domestic policy domain, because they approach the negotiations as if this is a traditional free trade and investment agreement. That observation extends to the impressive network of tobacco control analysts and advocates that has assiduously monitored, critiqued, advised, and lobbied on the TPPA since negotiations were launched in 2008. (2) It is this additional dimension that makes the TPPA an especially potent threat to national and international smoke-free goals. It also explains why traditional style solutions, such as proposals for a tobacco-specific exception, will not achieve their objective.

This Article begins with a brief introduction to the TPPA and the current state of play. Section III explains what is different about the proposed agreement. Section IV gives an overview of proposed changes in the more common trade and investment chapters. That is followed by a discussion in Section V of the proposed chapters on regulatory coherence and transparency, which would impose novel disciplines on the policy and regulatory decisions and actions of each Party through such techniques as regulatory impact assessments, and confer rights on affected commercial interests to participate in regulatory processes. Section VI summarizes the cumulative effect of these various chapters on the process of developing and implementing tobacco control strategies.

The implications for smoke-free policies are explored in more detail in Section VII, using the example of Australia's plain packaging policy. Australian tobacco companies have used all available mechanisms to intervene at every stage of the domestic regulatory process. Along the way, they have accumulated evidence for use in legal disputes to challenge the plain packaging laws. As Section VII records, a similar pattern of behavior is emerging in relation to New Zealand's proposed plain packaging laws. Tobacco companies accuse both countries of failing to comply with their own "best practice" regulatory mechanisms and their obligations on intellectual property, technical barriers to trade, and investment in their free trade and investment treaties. Moves to embed such disciplines within the TPPA, and guarantee tobacco companies the right to participate actively in decision-making processes, could have serious consequences, especially for countries where such mechanisms do not currently apply.

The penultimate section asks what this means for strategies to neutralize the impacts of the TPPA on progressive tobacco control policies, focusing on the U.S. proposal for a tobacco exception. The Article concludes by urging a more systemic analysis of the TPPA, and its potential consequences for the kind of tobacco control policies that are necessary to achieve national and international smoke-free goals and achieve the objectives of the Framework Convention on Tobacco Control (FCTC).

II. A BRIEF PRIMER ON THE TPPA (3)

On March 15, 2010, trade negotiators from eight countries met to begin formal talks on a free trade and investment treaty, the TPPA. (4) Seven were full participants: Australia, Brunei Darussalam, Chile, New Zealand, Peru, Singapore, and the United States. (5) Vietnam had associate status for the first three meetings; it became a full participant before the fourth round in Auckland, New Zealand in December 2010. (6) So did Malaysia. (7) Canada and Mexico asked to join the talks at the APEC meeting in Honolulu in November 2011 and were accepted after a lengthy process; they participated for the first time in the fifteenth round at Auckland, New Zealand in December 2012. (8) Japan is the only other country to have formally asked to participate after teetering on the brink for several years. (9) Thailand has also expressed interest, but not made a formal approach. (10)

Notionally, the United States, Australia, Canada, Malaysia, Mexico, Peru, and Vietnam are acceding to the Trans-Pacific Strategic Economic Partnership Agreement (known as the "P4") that Chile, New Zealand, Singapore, and Brunei concluded in 2005. (11) In reality, the United States does not accede to other countries' agreements. The U.S. Trade Representative (USTR) has dominated the negotiations, reportedly seeking to extend the rules in existing U.S. Free Trade Agreements (FTAs) and to supplement them with new proposals. (12) Other parties have sought to integrate and adapt the P4 text and graft their own proposals onto the U.S. template. (13)

The United States has been the main political driver. Although the process began under George W. Bush, the Obama administration has owned the TPPA as its principal (and until recently, only) significant trade negotiation and it is under pressure from business and political constituencies to deliver. (14) Since 2011, it has represented the agreement as the economic limb of a two-pronged pivot to reinvigorate U.S. "leadership" in the Asia-Pacific region--the other limb being a renewed military presence--as a counter to China's growing ascendancy. (15) The specter of geopolitical and economic competition from China also infuses many of the United States' substantive proposals. (16)

The initial informal deadline for the agreement to be concluded was mid-2012. (17) That was never achievable. The next collective ambition of the parties was to bring negotiations to a point where a deal could be signed at the APEC political leaders meeting in October 2013. is That would only be achievable if intense political pressure got the negotiators to set aside their rational concerns and accept ill-conceived compromises.

At the end of the Auckland round in December 2012, the negotiations remained at various levels of impasse, especially on medicines, information technology, agriculture, textiles, state-owned enterprises, labor, and environment. (19) The deadlocks are largely of the United States' own making; it has continued to table controversial new texts in areas of interest to its corporations, but failed to table revisions of draft texts that other parties have rejected. (20)

A strong cross-sectoral campaign in a number of countries (especially the United States, New Zealand, Australia, and Malaysia) has heightened the tensions around the negotiations. Controversy over specific issues has been fueled by intense secrecy. (21) Unlike the World Trade Organization (WTO) (22) and negotiations for the Free Trade Area of the Americas (FTAA) (23) and the Anti-Counterfeiting Trade Agreement (ACTA), (24) the only working texts and position papers that are available are those that have been leaked. (25) The parties have agreed that no draft texts or working documents will be released during the negotiations and that no documents aside from the final text will be released for four years after the agreement comes into effect or negotiations are terminated. (26)

Tobacco has been a surprise factor in the negotiations, thanks to the efforts of tobacco control advocates, although the magnitude of the other issues means it is unlikely to be a deal breaker. The spectrum of parties' positions on tobacco is complicated. All parties except the United States have ratified FCTC. (27) Australia and to a lesser extent New Zealand have ambitious smoke-free goals and are implementing novel policies that currently center on plain packaging of tobacco products, as discussed below. (28) The Malaysian, Brunei, and Singapore governments also have strong smoke-free policies, consistent with initiatives across the Association of Southeast Asian Nations (ASEAN). (29) Vietnam has a state-owned tobacco producer, (30) which creates some tension between its commercial, political, and public health priorities. Canada has a mixed track record, with some strong policies, but it has also capitulated in the past to industry threats of investor-state disputes. (31) Little is known about the approach of Chile and Peru to tobacco in the TPPA talks, or newcomer Mexico. Future participation by Japan could also be significant, as the government is a significant shareholder in Japan Tobacco Inc. (32) Conversely, Thailand has world-leading public health strategies on both tobacco and alcohol. (33) To date, however, the United States is the only country to indicate its intention to table a text that deals specifically with tobacco; the content and timing of the exception is discussed in Section VI below.

III. WHAT IS DIFFERENT ABOUT THE TPPA

The branding of the TPPA as a "gold standard" for the twenty-first century (34) seeks to distinguish it from other international agreements that promote free trade, investment, and economic integration among the signatory parties. There are at least six features that aim to make the TPPA unique:

1. a seamless regulatory environment for cross-border movement of goods, capital, data, and elite personnel and their related commercial activities. (35) This is not unlike the internal and external synergies sought (more successfully) by the European Union, (36) but would embody U.S.-centric interests and the associated regulatory regime;

2. targeting the philosophy and processes, as well as the substance, of the parties' domestic policy and regulatory decisions; (37)

3. moving beyond the standard ideological, commercial, and mercantilist approach to individual chapters to incorporate cross-cutting themes and disciplines on all domestic regulatory processes, irrespective of the subject matter; (38)

4. constructing a hegemonic regime where the cumulative norms, technical and evidential requirements, decision-making procedures, institutional arrangements, obligations to consult and report, surveillance mechanisms, rights of stakeholder engagement, and legal enforcement make the whole much more potent than the sum of its parts; (39)

5. extending its horizon beyond the original (currently eleven) parties by promoting it as a "living agreement" to which all Asia-Pacific countries will accede, without changing its pre-determined rules; (40) and 6. harnessing this U.S.-led regulatory hegemony to a parallel geopolitical strategy for the Asia-Pacific, with the aim to either encompass or isolate China. (41)

These high ambitions for the TPPA may not be reflected in the realities of the negotiations or the content of the final text. But they signal the distinctive elements that analysts need to consider when assessing its potential impacts on national and international smoke-free strategies.

IV. THE SCOPE OF THE TPPA

If concluded as planned, the scope of the TPPA would be massive. There are twenty-nine subject areas under negotiation, each of which corresponds to a potential chapter or section of the final text or constitutes a cross-cutting theme. (42)

Only a few chapters involve old-fashioned cross-border commodity trade, such as market access for goods (including agricultural products and textiles), customs, trade remedies, and subsidies. (43) The rest of the working groups deal with governments' behind-the-border powers and activities. (44) Some, notably technical barriers to trade (TBT), sanitary and phytosanitary measures, and government procurement are familiar from the later rounds of the General Agreement on Tariffs and Trade (GATT). (45) Other chapters cover policy and regulatory measures brought under the rubric of "trade" in the WTO and the early generation free trade agreements (FTAs)--especially services and related investments, intellectual property rights, and trade facilitation--as well as investment protections and investor-enforcement powers in bilateral investment treaties (BITs) and FTAs. (46)

Most of these chapters have explicit criteria for decision-making, presumptions of light-touch regulatory approaches, requirements for evidence-based regulation and industry-inclusive processes, as well as diverse disclosure, notification, consultation and enforcement mechanisms.

The rules that are reportedly being proposed for a number of these chapters have particular significance for tobacco control policies. (47)

A. COMMODITY TRADE

The stated aim is to remove all remaining market access barriers, with no product exceptions, and further liberalize, streamline and harmonize the rules. (48) This would remove all tariffs on tobacco leaf and products, (49) a goal the U.S. tobacco industry supports, (50) and prevent licensing and quantitative restrictions on imports, unless the general exception defense was satisfied (see discussion below (51)).

B. TECHNICAL BARRIERS TO TRADE (TBT)

There has been little concrete information about new TBT proposals that might impact on tobacco control policies. Malaysia reportedly tabled a proposed Annex to the TBT chapter that seeks to prevent governments from requiring companies to hand over proprietary formulas for their products in order to market them in that country. (52) This could affect a requirement to disclose the ingredients, including the nicotine content, of tobacco products. The report suggests the United States has supported Malaysia's proposal. (53)

C. CROSS-BORDER SERVICES (CBS)

The cross-border services chapter has attracted relatively little public attention, which is surprising given the vigorous and very effective campaigns to prevent extension of the rules and commitments in the General Agreement on Trade in Services (CATS) during the WTO Doha round. (54)

The most significant CBS issue involves disciplines on the domestic regulation of services, which New Zealand and Australia have spearheaded--and the United States has steadfastly resisted--in the WTO. …

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