American Journal of Law & Medicine

Safeguards for Tobacco Control: Options for the TPPA


With tobacco trade, the past is prologue. In the 1980s, the U.S. government used domestic trade remedies ("Super 301") to pry open markets for U.S. tobacco companies. (1) The targets included Japan, South Korea, Taiwan, and Thailand. (2) A grateful tobacco industry donated a renovation of the Treaty Room in the U.S. Department of State, declaring at the dedication: "Tobacco is intimately and historically associated with American diplomacy." (3)

Thailand responded by banning imported cigarettes on grounds that the imports were more addictive and marketing of imports was driving up consumption. The United States then challenged Thailand for violating the General Agreement on Tariffs and Trade (GATT). The GATT panel ruled against Thailand, finding that the import ban failed to satisfy the health exception of GATT Article XX. (4) Studies showed that liberalizing tobacco trade in the 1990s resulted in lower tariffs, lower prices, aggressive marketing, and greater tobacco use--in the range of ten percent for all four countries. (5) The same results held true for China, India, Indonesia, Malaysia, Pakistan, and the Philippines. (6) By 1997, the mounting evidence of a "tobacco epidemic"--and the overt connection with trade agreements--prompted an apparent shift in U.S. policy. The U.S. Congress adopted the Durbin and Doggett Amendments, which prohibit federal agencies from promoting "the sale or export of tobacco or tobacco products" or seeking "the reduction or removal by any foreign country of restrictions on the marketing of tobacco or tobacco products, except for restrictions which are not applied equally to all tobacco or tobacco products of the same type." (7) In 2001, President Clinton issued Executive Order 19393 to make clear that this policy applies to all executive agencies and "the implementation of international trade policy." (8) Limiting trade negotiators aimed to promote coherence between health and trade policy. (9)

In 2003, congressional leaders documented how the Office of U.S. Trade Representative (USTR) negotiated Korean tariff reductions on behalf of Philip Morris International (PMI), agreed to zero tobacco tariffs on the last day of negotiations on the U.S.-Chile Free Trade Agreement (FTA), and proposed ten of eleven amendments sought by PMI to weaken the draft Framework Convention on Tobacco Control (FCTC). (10) Since the Doggett Amendment has been in effect, the USTR has negotiated with eighteen countries to eliminate tariffs on processed tobacco leaf and cigarettes. (11) The United States continued to expand market access for tobacco-related services and extended investor rights to tobacco companies. Writing for the Council on Foreign Relations, Thomas Bollyky summarizes the legacy of twentieth century trade policy for tobacco:

   Tobacco companies are aggressively exploiting trade and investment
   agreements to expand their market in low- and middle-income
   countries. Lower tariffs reduce the price of imported cigarettes in
   countries without good taxation systems to compensate.
   Multinational tobacco companies use dispute resolution ... to block
   tobacco marketing and labeling regulations far more modest than
   those in the United States. Young women, who have historically
   smoked less than men in most parts of the developing world, are a
   major target of industry marketing campaigns. (12)

Now the U.S. government is leading negotiations among eleven countries on a Trans-Pacific Partnership Agreement (TPPA), "a true 21st century trade agreement" that "will reflect U.S. priorities and values." (13) The open question is whether a priority is to support tobacco trade as it contributes to 6 million deaths per year--one billion deaths in a twenty-first century epidemic. (14) The TPPA has six chapters that might provide material support to the tobacco industry. (15)

As trade agreements evolve through regional negotiations, the first global health treaty is emerging as a force to exercise, rather than restrict, regulatory authority. The FCTC does not directly regulate; it obligates countries to achieve a common foundation of taxes and tobacco-control measures. (16) A stream of recent work makes a strong case that trade agreements provide the "flexibilities" that governments need to implement the FCTC. This Article accepts that premise.

Yet the frameworks for trade promotion and tobacco control intersect with many points of overlapping coverage. At most of these intersections, the tobacco industry lobbies or litigates to shrink the policy space to regulate. This Article explores options for protecting that space:

* Part II outlines how the TPPA might strengthen the trade framework to the benefit of the tobacco industry. It also highlights the role of international litigation in the industry's campaign to chill implementation of tobacco-control measures.

* Part III explains the options for Trans-Pacific Partnership (TPP) countries to safeguard tobacco-control measures--exclusions and exceptions--and how to evaluate them.

* Parts IV and V walk through the syntax of those safeguards. For each

element of a safeguard, it parses the purpose, shortcomings, and alternatives to current practice. The focus is on the WTO's baseline health exception and alternatives for a tobacco exception, including one vetted by U.S. negotiators.

* The conclusion highlights the simplicity and effectiveness of exclusions compared to exceptions.


TPP leaders aim to do more than merely expand trade. …

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