Close Tobacco-friendly Loopholes in Trade Deal, Groups Urge

December 04, 2018 02:31 pm News Staff

Twenty years after the landmark Tobacco Master Settlement Agreement(publichealthlawcenter.org) between state attorneys general and major tobacco manufacturers permanently changed Americans' relationship with smoking, the CDC says smoking among U.S. adults is at an all-time low.(www.cdc.gov) At the same time, cigarette makers, defending how their products are made and marketed, have steadily lost in court.(www.tobaccofreekids.org)

[pair of japanese cigarette vending machines]

But battlefronts remain -- among them, international trade agreements such as the one now being negotiated between the United States and Japan, a country with a historically high smoking rate.(www.smokefreeworld.org)  

Ahead of that proposed agreement, the AAFP has joined the Campaign for Tobacco-Free Kids and 24 other medical and public-health organizations in advising against any deal that leaves room for litigation that would delay smoking-cessation programs in Japan and let offshore tobacco advertising reach U.S. youth.

"The tobacco industry has aggressively responded by using investor-state dispute settlement (ISDS) provisions in trade and investment treaties to both threaten and file legal challenges against countries' policies. Despite not prevailing on its investment claims, the tobacco industry has long used legal threats and challenges to intimidate governments from moving forward with policies to prevent or reduce tobacco consumption," the organizations warned in a Nov. 26 letter(2 page PDF) to Edward Gresser, chair of the Trade Policy Staff Committee at the Office of the U.S. Trade Representative. "The tobacco industry's behavior is a real and direct threat to public health."

The letter was sent in response to a request for comment(www.federalregister.gov) on the proposed trade agreement.

It follows a successful push against tobacco-friendly loopholes in this year's marquee foreign-trade deal.

In June 2017, the Academy joined in signing a similar letter(3 page PDF) regarding the agreement then known as the North American Free Trade Agreement. The provisional compact that emerged this fall, the United States-Mexico-Canada Agreement,(ustr.gov) keeps important litigation boundaries largely in place.

That deal, the new letter notes, "significantly limits the tobacco industry's ability to initiate disputes challenging tobacco control measures by eliminating ISDS between the U.S. and Canada and limiting ISDS claims between the U.S. and Mexico for the majority of industries, including the tobacco industry."

Seeking similar safeguards, the letter adds: "Any ISDS provision included in a U.S.-Japan trade agreement should prohibit challenges from private tobacco companies to tobacco control measures to reduce tobacco use. Given the experience of the tobacco companies using the investor-state provisions in other treaties to challenge tobacco control measures, this protection is critical. It is also particularly important because the U.S. is moving forward with adopting graphic warning labels to accompany textual warnings that together will cover 50 percent of the front and back of a cigarette pack."

Labels of that size are consistent with longstanding World Health Organization recommendations.(www.who.int) But the Japanese government -- which once owned Japan Tobacco Inc. and still controls one-third of the internationally distributed brand -- has consistently lagged well behind other nations(www.jstc.or.jp) when it comes to public health reforms related to smoking.

The letter calls for any U.S. trade deal with Japan to "set the example for a 21st century trade and investment agreement by, at a minimum, recognizing the unique harms caused by tobacco products and preventing the tobacco industry from using the agreement to challenge U.S. or Japanese actions to reduce the use of tobacco products."

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