Blumenthal, Murphy Urge USTR To Safeguard Tobacco Control Measures And Protect Public Health In Trade Agreement

(Washington, DC) – This week, U.S. Senators Richard Blumenthal (D-Conn.) and Chris Murphy (D-Conn.) – and 10 other senators – wrote to United States Trade Representative (USTR) Michael Froman to express their concerns regarding the USTR’s Trans-Pacific Partnership (TPP) Agreement Tobacco Proposal, which may allow tobacco companies to use trade law to subvert domestic tobacco control measures.

Blumenthal said, “Our trade negotiations should soundly reject any agreement that curtails or undercuts our nation’s efforts to save people from tobacco addiction and disease. I’ll oppose any trade measure that fails to recognize tobacco as a public health menace. A trade agreement undermining U.S. anti-tobacco efforts would be a betrayal of trust.”   

Murphy said, “The U.S. Trade Representative should ensure that tobacco, which kills nearly half a million people each year, is considered a unique consumer product under the Trans-Pacific Partnership so that critical public health measures that have already helped curb tobacco use can remain in place. We can’t allow tobacco companies to try and use trade law to get around these measures  and put public health in harm’s way just to turn an even larger profit. They’ve tried to do this before, and will do it again if tobacco is not categorized appropriately in this agreement.”

Every year, 443,000 people – one out of every two people who use the product as intended – are killed as a result of tobacco use in the United States. In fact, tobacco is on track to kill one billion people worldwide this century. The TPP Agreement Tobacco Proposal should reflect this reality by explicitly recognizing the unique health and regulatory status of tobacco products. The TPP Agreement Tobacco Proposal should also ensure that TPP nations are able to fully implement and enforce tobacco control legislation like the Family Smoking Prevention and Tobacco Control Act of 2009. This provision would allow health authorities in TPP countries to adopt regulations that impose origin-neutral, science-based restrictions on specific tobacco products – such as those in the Tobacco Control Act – in order to safeguard public health. Absent such measures, tobacco companies could potentially use the agreement to undermine such regulations in the United States and in other countries

The TPP Agreement is currently being negotiated by twelve countries – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States. USTR hopes to complete these negotiations soon, at which point the TPP Agreement will be voted on by Congress. In addition to Blumenthal, the letter was signed by the following senators: Dick Durbin (D-Ill.), Tom Harkin (D-Iowa), Heidi Heitkamp (D-S.D.), Edward Markey (D-Mass.), Dianne Feinstein (D-Calif.), Ben Cardin (D-Md.), Jeff Merkley (D-Ore,), Elizabeth Warren (D-Mass.), Al Franken (D-Minn.), and Sherrod Brown (D-Ohio).

Text of the letter is below and attached. 

November 12, 2013

Ambassador Michael Froman

Office of the United States Trade Representative

600 17th Street NW

Washington, DC 20208

Dear Ambassador Froman:

We write to express our concerns about the tobacco provisions proposed by the United States during the most recent Trans-Pacific Partnership (TPP) trade negotiations in Brunei. While we would prefer an exclusion for all tobacco products from the TPP, we strongly believe TPP should, at the very least, include language that recognizes tobacco as a unique consumer product and ensures TPP nations are able to fully implement and enforce strong nondiscriminatory tobacco control legislation to protect public health and reduce tobacco-related deaths.

Tobacco use is the leading preventable cause of deaths worldwide, taking 6.3 million lives a year, including 1,200 Americans daily. The United States spends nearly $200 billion a year for tobacco-related illness and injury, and lost productivity.  Unless serious, urgent action is taken, tobacco will kill one billion people worldwide this century.

Tobacco companies and governments supporting tobacco companies have a history of aggressively using trade law to subvert domestic tobacco control measures. Indonesia, on behalf of Kretek International, an Indonesian tobacco company that sells a clove-flavored cigarette that is attractive to children, used provisions in several World Trade Organization agreements to challenge a provision in the Family Smoking Prevention and Tobacco Control Act that bans candy-like flavorings that appeal to youth smokers. Philip Morris International filed a Bilateral Investment Treaty dispute against Uruguay because of the country’s graphic warning labels. The company is also using Australia's Bilateral Investment Treaty with Hong Kong to challenge an Australian ban on color and images on tobacco packages. These efforts by tobacco companies and governments supporting tobacco companies to use trade laws to subvert public health measures are deplorable and a serious threat to global public health.

The current tobacco proposal states that tobacco control measures are measures “to protect human health,” and as such would fall under a “general exceptions” chapter of the TPP analogous to Article XX(b) of the General Agreement on Tariffs and Trade (GATT). It has long been assumed that tobacco control measures fall under this provision, and yet, we have seen repeated legal challenges to these measures. The provisions proposed by the United States would not exempt tobacco control measures from other TPP obligations and do not prevent nations, on behalf of tobacco companies, from using TPP as a basis for threatening or following through with legal action to prevent the enforcement of nondiscriminatory tobacco control legislation.

We appreciate that the current tobacco proposal allows the health ministers of the two countries to have an opportunity to discuss any challenged tobacco control measure before legal action commences. However, even if the consulting parties agree, consultation cannot block a challenge to tobacco control regulation. We are concerned that this provision will simply delay, but will not prevent, tobacco companies and governments supporting tobacco companies from using TPP as a basis for preventing domestic enforcement of sensible non-discriminatory tobacco control legislation.

We also appreciate efforts to find consensus on this issue. However, tobacco companies and governments supporting tobacco companies have proven they are willing to use trade laws as a basis to challenge domestic tobacco control legislation. The final TTP language should recognize this dangerous trend and prevent further abuses of trade laws related to domestic tobacco control legislation.  

The United States should be leading the fight against death and disease from tobacco products, which are a uniquely dangerous threat to public health. We urge you to work with TPP participating nations to include language in TPP that recognizes tobacco as a unique consumer product and ensures TPP nations are able to fully implement and enforce strong non-discriminatory tobacco control legislation to protect public health and reduce tobacco-related deaths.