Sen. Brown and 10 Senate Colleagues Urge USTR to Safeguard Tobacco Control Measures, Protect Public Health in Trade Agreements

Tobacco is On Track to Kill One Billion People Worldwide this Century

WASHINGTON, D.C. – Today, U.S. Sen. Sherrod Brown (D-OH) and 10 of his Senate colleagues 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 does not currently recognize tobacco as a unique consumer product and which may allow tobacco companies to use trade law to subvert domestic tobacco control measures.

“Much of Big Tobacco’s behavior is driven by one giant and irrefutable fact: tobacco, in the United States alone, kills upwards of 400,000 people a year,” Brown said. “So just to stay even, Big Tobacco needs 400,000 new customers a year, which it hopes to accomplish by marketing to children. Now with a battery of well-paid lobbyists and trade lawyers, Big Tobacco has turned its attention to trade agreements. We must prevent trade law from being used to undermine anti-tobacco efforts at home and abroad.”

Every year, 443,000 people are killed as a result of tobacco use in the United States alone. Accordingly, the TPP Agreement Tobacco Proposal should explicitly recognize 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. The 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.

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.

Brown has worked to reduce the negative effects of tobacco use for Ohioans, including pressing the Food and Drug Administration (FDA) and Department of Health and Human Services (HHS) to regulate tobacco products to the full extent of their powers, such as the use of graphic warning labels, finalizing their regulatory powers over tobacco, and ensuring that all tobacco products are properly taxed and controlled. Brown has also consistently urged the FDA to do its part to produce strong and timely regulations on tobacco products. 

In September, Brown wrote Ambassador Froman to urge the Obama Administration to reconsider its tobacco position at the TPP. With one in every five Ohio deaths caused by tobacco use, Brown held a news conference call to urge the Administration to put an end to Big Tobacco’s latest attempts to use trade law to undermine anti-smoking efforts and to sell and market “electronic cigarettes” to children. Brown was joined on the call by Susan Liss, the Executive Director of Campaign for Tobacco-Free Kids, who helped discuss the means Big Tobacco is willing to take to replace the more than 400,000 customers it loses each year to tobacco-related death.

Brown’s letter to Ambassador Froman is copied below:

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.

 

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