Did Obama administration duck smoking issue in free trade talks? Sherrod Brown suggests so
Plain Dealer | September 12, 2013
Did Obama administration duck smoking issue in free trade talks? Sherrod Brown suggests so
By Stephen Koff, Plain Dealer Washington Bureau Chief
WASHINGTON, DC — Cigarette smoking is terrible for your health, and the United States government warns consumers of that on every pack sold in this country.
But it turns out that restrictions on cigarette packaging and marketing could violate international trade rules — or so goes a tobacco-and-trade debate that Sen. Sherrod Brown joined today with a letter to President Barack Obama’s administration asking a basic question:
Should trade treaties, which encourage the global flow of goods and services, trump public health and safety?
The answer could set a precedent for how tough or easy it will be for the tobacco industry to challenge a nation’s cigarette-marketing laws on the grounds that they infringe upon free trade. Just as makers of steel and clothing fight in trade courts over quotas and tariffs, tobacco companies are already fighting back in trade courts over cigarette-packaging laws in Australia and Uruguay.
Australia requires plain olive-brown packaging. Uruguay requires health warnings to take up 80 percent of a cigarette package, which restricts the size of logos.
Philip Morris and the tobacco industry say these are violations of free-trade rights. Brown, the American Cancer Society, New York Mayor Michael Bloomberg and others want to make it harder for the tobacco companies to fight public health laws under the auspices of trade. But they say the Obama administration has dealt them a setback.
This became an issue last month amid discussions involving a major trade agreement between the United States, Australia, Canada, Brunei, Darussalam, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. The United States had last year proposed that the treaty, the Trans-Pacific Partnership Agreement, specifically state that countries have a right to uphold their tobacco rules and laws, despite the free-trade goal of an unhampered exchange of agricultural products.
The trade agreement would not have outlawed all challenges by tobacco companies that said a country’s health laws infringed upon their trade rights. But it would grant safe harbor to such public health laws and policies, or a presumption making it harder for a tobacco company to bring free-trade challenges.
The Obama administration, however, reversed course last month. That’s what has Brown and others so upset. They want the administration to go back to its earlier proposal, which is tantamount to a statement that cigarette smoking is deadly and countries have a right to regulate and restrict the product.
The Obama administration’s reversal resulted from pressure from the business community, “which was holding hands with the tobacco industry, and from tobacco-state lawmakers,” said Gregg Haifley, associate director of federal regulations for the American Cancer Society’s Cancer Action Network.
No other trade agreement involving the United States has ever singled out tobacco products with an exception to the principles of free trade, authorities say. Although the United States in 2004 joined 168 other countries in signing the Framework Convention on Tobacco Control, sharing the goal of reducing tobacco use, that agreement was under the auspices of the World Health Organization rather than the trade courts — and Congress never ratified it.
That’s what made the Obama administration’s decision last year — to specifically carve out a statement affirming the rights of countries to restrict tobacco — so unique.
The office of U.S. Trade Representative Michael Froman said the decision to eliminate the unique tobacco exception in Trans-Pacific Partnership negotiations came after feedback from numerous “stakeholders,” including industry and farmers. Froman’s office said the Trans-Pacific Partnership Agreement would still contain, like other trade treaties, “a general exception for matters necessary to protect human life or health.”
And as part of negotiations continuing next week in Washington, the Obama administration says it will propose a provision indicating that the agreement’s parties “understand that general exception applies to tobacco health measures.”
Brown, the American Cancer Society, the Campaign for Tobacco-Free Kids, Mayor Bloomberg and others say that’s not good enough. Haifley said there is “a legitimate and life-saving reason” to finally make trade policy consistent with public health policy.
Brown, in a letter today to Froman, said the tobacco industry “already has abused the trading system through legal challenges — or threats of legal challenges — to public health measures around the world.”
He cited Australia’s plain-packaging act of 2011, which is being challenged under an Australia-Hong Kong investment treaty and in a separate World Trade Organization proceeding.
Brown said that Philip Morris years ago threatened action under NAFTA, or the North American Free Trade Agreement, “to kill cigarette packaging law contemplated by Canadian public health authorities.”
The Obama administration says it recognizes the problem posed by cigarettes — and it maintains that even without the language Brown and others want, the Trans-Pacific agreement can achieve the same goal.
Froman’s office declined to comment specifically on Brown’s letter but noted a statement in late August by Bill Corr, deputy secretary of the Department of Health and Human Services. Corr said the proposed new language, if adopted, “will make a difference for tobacco control and public health efforts.”
Corr acknowledged that “tobacco is a unique product – it is highly addictive, always harmful to human health, and the single most preventable cause of death in the world. Recognizing these facts about tobacco” through the trade treaty, he said, “will represent an important step forward for public health in the international trade community.”
Said Brown: It’s too weak.
"Americans are willing to support international agreements when there is a clear public good," he said in his letter. But in the case of tobacco, "such an upside-down approach will lead to greater global public health risk, disease, and premature death."
