[Intl-tobacco] New paper: THE CASE FOR EXCLUDING TOBACCO PRODUCTS FROM TRADE AGREEMENTS

[Robert Weissman]

Below is the overview section of a new paper we've just published,
"International Trade Agreements and Tobacco Control: Threats to Public
Health and the Case for Excluding Tobacco from Trade Agreements."

A psf version of the full paper is available at:
http://www.essentialaction.org/tobacco/trade/tobacco.trade.v02.backgrd.pdf

If you would like a word version, just send me a note.
--
Robert Weissman



1. INTERNATIONAL TRADE AGREEMENTS AND TOBACCO CONTROL: THREATS TO PUBLIC
HEALTH AND THE CASE FOR EXCLUDING TOBACCO PRODUCTS FROM TRADE AGREEMENTS

November 2003, v 2.0

By Robert Weissman,
Essential Action

OVERVIEW

National tobacco control efforts are now inextricably bound with
international trade and trade rules.

Over the last decade, countries have entered into a wide array of trade
agreements that cover matters far beyond tariff levels on imported
goods. These agreements establish rules related to everything from a
country's trademark protections to its food safety regulations, from
health insurance to truck safety standards; and they obligate countries
to adjust their domestic laws and regulations to comport with the trade
pacts=92 rules. The agreements feature strong enforcement mechanisms, and
countries that violate the agreements risk facing costly trade
sanctions.

These trade agreements have the potential to interfere with and
undermine sound tobacco control policy measures, including:

* Warning labels
* Ingredient disclosure requirements
* Bans on misleading descriptors ("light," "mild," "low")
* Tobacco tariff and tax policy
* Cigarette content regulation
* Advertising and marketing restrictions
* Clean indoor air rules
* Restrictions on retail distribution networks for tobacco products

This briefing paper argues that tobacco should be excluded from all
current and future trade agreements. Trade agreements are designed to
promote international trade, but expanded trade in tobacco products is
harmful to public health. Recent trade agreements have not only set the
terms for tariffs on tobacco products, they have restrained countries'
ability to adopt health and safety regulations, including the stringent
public health regulations vital to controlling the tobacco epidemic. The
new round of trade agreements also include special provisions which give
investors -- including Philip Morris, British American Tobacco (BAT) and
Japan Tobacco International -- standing to challenge governmental
regulations directly and seek compensation for profits lost due to rules
that do not comply with strict investment obligations.

The paper explains how, in a variety of ways, trade agreements may
undermine tobacco control efforts. Trade agreements commonly require the
lowering of tariffs and removal of restrictions on foreign imports,
including on tobacco products. But trade agreements' non-tariff
provisions are equally as worrisome. Agreements on intellectual
property, technical barriers to trade, services and investment may all
provide the basis to challenge sound tobacco control rules. Tobacco
companies have already used these agreements to contest an array of
tobacco control policies, though few formal tobacco-related trade
disputes have been actually litigated.

Challenges to tobacco control policy under trade rules appear to be well
grounded in reasonable interpretations of trade agreements. The prospect
of such challenges, and the possibility of their success, may chill many
countries from proceeding to enact sound tobacco control policies. The
Framework Convention on Tobacco Control provides a significant
counterweight that should help countries defend tobacco control
regulations against trade challenges, but even it does not offer certain se=
curity.

This paper first surveys the trade agreement landscape, and reviews the
political strategy surrounding new trade negotiations. Then it considers
the ways that various trade agreement provisions may conflict with
tobacco control programs. It next explains an important effect of the
agreements beyond their substantive obligations and enforcement
scenarios: the chilling impact on country adoption of public health
rules in the face of fear of trade challenges. The trade agreements do
include minimal exceptions for public health; the paper next examines
these exceptions, and considers how the FCTC will interact with trade
agreements, and the extent to which it provides safe haven to countries
complying with its terms. Next, the paper briefly recounts current U.S.
law on trade and tobacco. It concludes by arguing that tobacco products
should be excluded from trade agreements.