[Intl-tobacco] Essential Action FCTC testimony

[Robert Weissman]

		  Testimony of Robert Weissman
		  Co-Director, Essential Action
		     Washington, D.C., USA
		        August 31, 2000
		to the World Health Organization
	on the Proposed Framework Convention on Tobacco Control


Thank you for the opportunity to submit testimony on the vitally important
proposal for a Framework Convention on Tobacco Control. 

I am the co-director of Essential Action, a corporate accountability
organization based in Washington, D.C. Essential Action is a project of
Essential Information, a non-profit organization, organized under section
501(c)(3) of the U.S. tax code. Essential Action focuses on a wide range
of corporate accountability issues, with an emphasis on multinational
corporate activities in the developing world. Essential Action is funded
by individual and foundation support. We do not accept corporate funding.
One of our areas of work is international tobacco control, and working to
stem the ongoing migration of smoking-related death and disease from the
United States and other industrialized countries to the developing world.
We believe achieving this goal above all requires placing limitations on
the actions of the multinational tobacco companies -- hence our interest
in the Framework Convention. 

The WHO is well aware of the worldwide carnage inflicted by the tobacco
industry, and WHO's projections of future death and disease should be a
clarion call for all elements of the global community to join together to
support the strongest possible Framework Convention. We applaud the effort
to undertake the Framework Convention negotiations, which offers the
prospect of dramatically advancing global tobacco control efforts.

This testimony focuses not on specific items for inclusion in the
Framework Convention, but on the cross-cutting issue of trade and
investment agreements and the Framework Convention.

First, however, a preliminary matter: a plea for the broadest and deepest
possible inclusion of non-governmental organizations (excluding the
tobacco industry and its organizational fronts) in the Framework
Convention negotiation process. The Framework Convention is an historic
public health initiative. To be as efficacious as possible, it must draw
on the tobacco control expertise and experience that resides in NGOs
around the world. Moreover, the Framework Convention's success will
require overcoming the entrenched interests of the tobacco multinationals
and their cultivated allies. That will require tapping NGOs' political
mobilization skills. But neither NGOs' expertise nor political engagement
will be as forthcoming if NGOs are not integrated into the Framework
Convention negotiation process. Virtually all environmental and public
health treaties and international agreements now involve the extensive
involvement of NGOs, and the Framework Convention should be no different.
WHO should work with negotiating countries to adopt the most transparent
and NGO participatory negotiating process rules.

With that stated, I would like to use this opportunity for NGO
participation to turn to the trade and investment issue. 

*Establishing the Principle that Tobacco Control Trumps Trade and
Commercial Concerns* 

Because the Framework Convention will be involved in the regulation of
international commerce, it will overlap with, and potentially come into
conflict with, a range of international trade and investment agencies and
agreements. The most important of these, for now, is the World Trade
Organization and the attendant WTO agreements. 

There are many ways that trade and investment agreements may conflict with
sound tobacco control policy. 

To take a few examples: 

* The principle of national treatment requires that countries open their
markets to foreign cigarettes and that no limitations be placed on the
sale of a foreign product absent similar limitations on domestic products.
Unfortunately, because the tobacco multinationals are more effective at
sales, marketing, advertising and product manipulation than most domestic
companies, market openings are associated with a surge in tobacco
consumption. 

* Trademark protections in intellectual property agreements may interfere
with efforts to promote plain packaging. 

* Proposed new rules on electronic commerce may interfere with application
of consumer protection statutes and regulations, by giving sellers some
choice in choosing the jurisdictional rules to which they will be subject. 

It is important that the Framework Convention negotiators be cognizant of
these and other potential problems from the intersection of trade and
investment agreements and tobacco control. One important consideration in
drafting language will be to anticipate potential future trade and
investment agreements, and to draft Framework Convention and protocol
provisions that will not be superseded or effectively undermined --
intentionally or, more likely, unintentionally -- by future trade and
investment agreements. 

Essential Action believes the most sensible means to address these
problems is to exclude tobacco altogether from trade and investment
agreements. The Framework Convention might establish this as a principle
in the development of international law, though ultimate achievement of a
tobacco exclusion would require explicit acknowledgement in the trade and
investment agreements themselves. 

At a minimum for effective international law-making, the Convention should
explicitly establish the principle that tobacco control takes priority
over any competing trade or commercial considerations. 

*The Hazards of "No Arbitrary or Unjustifiable Discrimination" Language*

In this context, we are fearful that the initial trajectory of the
Framework Convention is oriented toward seeking compatibility with trade
and investment agreements, rather than letting trade and investment
agreements find compatibility with tobacco control objectives. 

Specifically, the provisional text language suggesting that "trade policy
measures for tobacco control purposes should not constitute a means of
arbitrary or unjustifiable discrimination or a disguised restriction on
international trade" is very worrisome. In conversational terms, such
language is hard to find objectionable. But in the case of the WTO, for
example, regulatory measures may be assumed to be "a means of arbitrary or
unjustifiable discrimination," absent a showing to the contrary. And
making such a showing can require meeting a very difficult test -- proving
that there is no "less trade restrictive" means to achieve a legitimate
public health objective.

Exactly how the WTO would respond to a trade challenge to future tobacco
control measures is unknown, though liaison and working groups between the
WTO and WHO are positive efforts to ensure WTO respect for tobacco control
measures. However, a WTO dispute settlement panel, or the dispute
settlement authority of other or future trade and investment regimes, may
interpret the inclusion of the "arbitrary or unjustifiable discrimination"
clause to mean that measures not included in the Framework Convention or
protocols are presumptively discriminatory. 

Is such an outcome guaranteed? Certainly not. But it is possible. And
there is no reason to risk it. In the case of tobacco above all, there is
no reason for a public health treaty to concern itself with alleviating
potential trade discrimination. As it happens, there are demonstrable
public health benefits from trade discrimination in the case of tobacco.
But even if there were not such benefits, there is absolutely no reason
for a WHO treaty to concern itself with protecting the commercial
interests of the tobacco transnationals. 

*Framework Convention Standards as a Floor, Not a Ceiling*

Another crucial trade consideration is the issue of "ceilings" versus
"floors." There is consensus among the NGO community, and hopefully among
Framework Convention negotiating countries, that the Framework Convention
and protocols should establish regulatory floors -- establishing the least
individual countries must do for tobacco control -- not regulatory
ceilings -- which would place limits on tobacco control measures. 

Under the WTO system, however, international standards may be
automatically converted into regulatory ceilings. 

The WTO's Technical Barriers to Trade (TBT) Agreement establishes
international rules relating to how, under what circumstances and with
what restrictions countries can establish technical regulations concerning
products or processes related to products. Technical regulations may cover
such matters as health, safety and environmental regulations. 

The TBT Agreement specifically permits countries to enact technical
regulations for the purpose of protecting human health, but it defines
narrow parameters for the establishment of such standards. First, Article
2.2 stipulates that technical regulations must not be more trade
restrictive than necessary to achieve a public health or other objective
-- the provision that gives rise to the problem with the "arbitrary or
unjustifiable discrimination" clause. Second, where international
standards exist or their adoption is imminent, Article 2.4 specifies that
countries must use them, unless they can meet very stringent tests (the
exception is if the international standard "would be an ineffective or
inappropriate means for the fulfillment of the legitimate objectives
pursued, for instance because of fundamental climatic or geographical
factors or fundamental technological problems").

Thus Framework Convention standards may inadvertently become de facto
ceilings in the WTO context. Perhaps the most promising way to avoid this
conundrum is both to include specific overarching language in the
Framework Convention and in the protocols specifying that no standard in
the treaty instruments should be considered ceilings, and to frame every
standard or near-standard explicitly as a floor -- using language such as
"at least" or "countries shall, at minimum, do X, but may do more."

We are very optimistic about the potential of the Framework Convention to
meaningfully advance the cause of global tobacco control, and would like
to emphasize again our strong support for the Convention and the WHO's
initial preparatory work.

There are, however, a series of obstacles that must be overcome for a
successful treaty negotiation, including potential problems with trade and
investment agreements. To recap our recommendations for dealing with these
issues:

1. The Convention should explicitly establish the principle that tobacco
control takes priority over competing trade or commercial considerations.
It should also help evolve international law so that tobacco is excluded
from trade and investment agreements.

2. The language on "arbitrary or unjustifiable discrimination" should be
removed, and the notion that tobacco control measures must justify
themselves in terms of free trade or investment rules should be rejected.

3. There should be explicit language establishing that Framework
Convention standards constitute a floor, not a ceiling, and each standard
should be framed explicitly as a floor.

Thank you very much for the opportunity to submit this testimony. 

Robert Weissman
Essential Action
P.O. Box 19405
Washington, D.C.  20036
Telephone: 202-387-8030   Fax: 202-234-5176  E-mail: action@essential.org
www.essentialaction.org