[Intl-tobacco] Call for tobacco to be excluded from US-Thai free trade agreement

[Robert Weissman]

A coalition of Thai and U.S. tobacco control groups today sent letters
to the Thai Ministers of Health and Commerce, and the U.S. Secretary of
Health and Human Services and the U.S. Trade Representative, urging that
tobacco products be excluded from the Thai-US Free Trade Agreement now
under negotiation.

The groups signing the letter are: in Thailand, Action on Smoking and
Health =96 Thailand and the Thailand Health Promotion Institute; and, in
the US, the American Cancer Society, the American Heart Association, the
American Lung Association, Action on Smoking and Health =96 USA, the
Campaign for Tobacco Free Kids, and Essential Action.

A copy of the letter is below.

This letter is part of a growing campaign to demand tobacco products be
excluded from trade deals. For more on this issue, see:

http://www.essentialaction.org/tobacco/trade/

For a detailed briefing paper on how trade agreements can undermine
sound tobacco control policies, see:

http://www.essentialaction.org/tobacco/trade/tobacco.trade.v02.backgrd.pdf



December 10, 2003

Honorable Minister of Public Health Sudarat Keyuraphan
Ministry of Public Health
Tiwanon Road
Nonthaburi 1100
Thailand

Dear Honorable Minister:

We are writing to urge you to exclude tobacco products from the
Thai-U.S. Free Trade Agreement expected to be negotiated over the next
several months.

At the May 2003 World Health Assembly, Thailand and the United States
both supported adoption of the Framework Convention on Tobacco Control,
in which they recognized "that the spread of the tobacco epidemic is a
global problem with serious consequences for public health that calls
for the widest possible international cooperation and the participation
of all countries in an effective, appropriate and comprehensive
international response" and reflected "the concern of the international
community about the devastating worldwide health, social, economic and
environmental consequences of tobacco consumption and exposure to
tobacco smoke."

As you know, prior to the FCTC, there is an unfortunate history of the
United States using trade pressure to open up the Thai market to foreign
cigarettes and to weaken important Thai public health measures designed
to curtail smoking. Our organizations are proud to have stood with
Thailand=92s health authorities in past disputes with the U.S. government
over tobacco control measures.

We believe that future trade policy and international trade agreements
should be crafted consistent with the FCTC and  ensure that they do not
undermine life-saving tobacco control measures.

We fear that, unless tobacco products are excluded, a Thai-U.S. Free
Trade Agreement could threaten sound tobacco control policies. We are
especially concerned about four areas:

Intellectual property provisions. Even in the absence of a bilateral
agreement, U.S. tobacco companies have invoked intellectual property
protections in other trade agreements to contest Thailand=92s proposed
health warning labels, arguing that they infringe on trademark rights.
They also have challenged Thailand=92s ingredient disclosure law, claiming
a violation of trade secret protections. In other nations, they have
used the same trade agreements to oppose bans on the use of the
misleading terms "mild" and "light," alleging that such prohibitions
interfere with trademark-protected names that include such terms.

Technical barriers to trade. Tobacco companies have invoked technical
barriers to trade provisions in other trade agreements to protest bans
on the use of the terms "mild" and "light," arguing that they are not
the least trade restrictive means to pursue the objective of ensuring
that consumers are not misled into believing there is a health benefit
to "mild" or "light" cigarettes. Technical barriers to trade provisions
also could be used to challenge tobacco product content regulations and
other tobacco control measures.

Tariff reductions. Any reduction in cigarette tariffs would be expected
to reduce prices and stimulate competition among brands. Both of these
effects are associated with higher smoking rates.

Foreign investment protections. Most worrisome are investment
protections. Investment protections of the type included in the North
American Free Trade Agreement (NAFTA) would give companies such as
Philip Morris, BAT and Japan Tobacco standing to challenge directly
national laws that they claim are tantamount to an expropriation of
their property. Under NAFTA, such claims may be made on broad grounds.
Philip Morris has already suggested that a Canadian ban on "light" and
"mild" is tantamount to an expropriation of its trademark on products
such as Benson & Hedges Lights and Rothmans Extra Light. We believe it
would be disastrous to provide tobacco companies with the ability to
directly challenge national or subnational tobacco control laws in
Thailand under a NAFTA-style investment agreement.

These potential harms to tobacco control can easily be avoided simply by
excluding tobacco products from the scope of a Thai-U.S. Free Trade
Agreement. The rationale for doing this is fairly simple. Trade
agreements are explicitly designed to promote and expand trade in
beneficial products. Tobacco products are universally acknowledged to be
harmful, not beneficial. Any increase in consumption causes additional
suffering and death, as well as a net economic loss for the economy of
the nation in which it is consumed and to the global economy. This
distinction between a beneficial product and a harmful one essentially
turns the traditional presumption in favor of free trade on its head
with respect to tobacco products. Logically, the presumption should be
against any action that would stimulate tobacco use.

Our concern about the inclusion of tobacco products in trade agreements
is not merely theoretical. Econometric research has shown that, by 1991,
liberalized trade in tobacco products already had raised smoking rates
in Thailand, South Korea, Taiwan and Japan by about 10 percent over what
they otherwise would have been. (Chaloupka and Laixuthai, 1996.)

Following through on the policy commitment made with adoption of the
Framework Convention on Tobacco Control means government officials must
be conscious of the impact of their work on the public health priority
of curbing tobacco use. Inclusion of tobacco products in a Thai-U.S.
Free Trade Agreement can only work to harm tobacco control efforts.

We look forward to discussing these matters with you as soon as
possible. We will be in contact with your office to arrange a meeting at
a mutually convenient time. In the meantime, please do not hesitate to
contact any of our organizations with any questions regarding this matter.

Sincerely,

Dr. Prakit Vathesatogkit
Executive Secretary, ASH Thailand

Dr. Hatai Chitanondh
President, Thailand Health Promotion Institute & The National Health Founda=
tion

Matt Myers
President, Campaign for Tobacco-Free Kids

John Seffrin
CEO, American Cancer Society

Cass Wheeler
CEO, American Heart Association

John L. Kirkwood
CEO, American Lung Association

John F. Banzhaf
Executive Director, ASH USA

Robert Weissman
Co-Director, Essential Action