Sen. Brown Urges Obama Administration to Reconsider Tobacco Proposal in Trans-Pacific Partnership That Could Undermine Public Health Efforts

As Administration Continues Negotiations on TPP Next Week in Washington, Brown Urges Administration to Prioritize Public Health, Prevent Use of Controversial Provisions that Chill Anti-tobacco, Public Health Efforts in U.S. and Abroad

WASHINGTON, D.C. –– In advance of continuing talks next week on a major trade pact, U.S. Sen. Sherrod Brown (D-OH) urged the Obama Administration to protect American tobacco-control efforts from trade challenges and lawsuits. In a letter to the U.S. Trade Representative (USTR), Brown urged the Administration to reconsider a provision recently offered in negotiations on the Trans-Pacific Partnership (TPP) free trade zone that would allow tobacco companies to trade challenges on tobacco control efforts.

“Big Tobacco companies will stop at nothing to replace the thousands of customers they lose each year to lung disease,” Brown said. “We’ve launched successful efforts to reduce the Number One preventable cause of death in the world, but we’re at risk of this slipping away if tobacco companies can mount challenges based on trade law. We are not demonstrating global public health leadership by putting forward a proposal that allows tobacco companies a backdoor to undermine anti-tobacco safeguards.”

Negotiations for TPP will continue next week in Washington. The TPP is a proposed trade agreement that currently includes the United States, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Congress has the constitutional authority to set the terms of trade and commerce with foreign nations. The Administration is conducting the TPP talks using authority which officially lapsed in 2007, suggesting it will seek renewed Trade Promotion Authority, known as “Fast Track,” to conclude TPP negotiations, as well as other trade initiatives. 

Last year, the USTR proposed a “safe harbor” provision that would have significantly limited efforts by Big Tobacco companies to challenge anti-smoking efforts under trade rules created by the TPP. However, last month, the Administration changed course, arguing that the U.S. can best balance the priorities of public health advocates and key TPP stakeholders by not excluding any one product, including tobacco, from rules of the trade agreement.

In his letter to USTR, Brown urged a new proposal and requested a detailed account of how the administration’s current proposal would protect the U.S. and other TPP governments from regulating tobacco products without the constant threat of litigation from tobacco companies and their allies.

Among those also expressing concern over the proposal are public health advocates such as the American Cancer Society Cancer Action Network, American Academy of Pediatrics, and Campaign for Tobacco-Free Kids, and longtime anti-tobacco voices like New York City Mayor Michael Bloomberg.

Brown’s letter can be read in its entirety below or viewed HERE.


                                                            September 12, 2013


Ambassador Michael Froman

United States Trade Representative

600 17th Street NW

Washington, DC 20508


Dear Ambassador Froman:


Your office has informed my staff that the United States proposal on tobacco tabled at the 19th round of the Trans-Pacific Partnership (TPP) negotiation reflects an attempt to balance the views of both public health advocates and important trade stakeholders who do not wish to exclude any sector or product from TPP market access negotiations. In my view, this desire to strike a balance on a public health issue like tobacco is in itself questionable, particularly given the spirit of Executive Order 13193 signed by President Clinton in 2001. There is clear evidence that tobacco causes cancer, heart disease, and lung disease and that tobacco use is the world’s leading preventable cause of death. The Obama Administration’s retreat from the earlier, albeit limited, “safe harbor” TPP position is a disappointment.


My concerns are shared by leading public health advocates such as the American Cancer Society Cancer Action Network, the American Academy of Pediatrics, and the Campaign for Tobacco-Free Kids, as well as longtime anti-tobacco voices like Mayor Michael Bloomberg.


I disagree with the contention that the current U.S. tobacco proposal in TPP recognizes the unique nature of tobacco products. Neither the current nor the original U.S. proposal would prevent the most serious threat posed to global public health – the tobacco industry’s ever-growing use of “investor-state” disputes or country-to-country disputes cases arising over tobacco product measures. For example, Australia’s Tobacco Plain Packaging Act 2011  is already under challenge under both the Australia-Hong Kong bilateral investment treaty and in a separate World Trade Organization (WTO) dispute settlement proceeding.   


Assurances that investor-state tobacco disputes within the TPP would be thwarted by public health agencies do not address the potentially chilling effect that the mere threat of an “investor-state” dispute can impose on any serious anti-tobacco effort.  The specter of such disputes can curb efforts regarding labeling requirements, flavoring bans, marketing restrictions, or tax policies. Warning shots to prevent adoption of such measures were initially fired years ago, when Philip Morris used the threat of a NAFTA case to kill a cigarette packaging law contemplated by Canadian health authorities.


Unfortunately, these “investor-state” challenges are being used by corporations around the world more frequently. The UN Conference on Trade and Development notes that the 62 cases initiated in 2012 are the highest number of cases ever filed in one year. Allowing private enforcement of investment rights, outside of domestic legal systems, can undermine and pose serious threats to public health, the environment, and consumer efforts taken by our trading partners, as well as our own agencies.


The U.S. tobacco proposal challenges Congress and the American public to ask hard questions about the purpose and goals of our trade policy with respect to upholding our hard-won domestic laws and regulations. Americans are willing to support international agreements when there is a clear public good. But public confidence in international institutions, or agreements, is quickly diminished when we so clearly elevate corporate interests ahead of the public good.  


In the case of tobacco, such an upside-down approach will lead to greater global public health risk, disease, and premature death.  Americans do not expect our trade negotiations to result in a situation that makes tobacco regulation in the U.S., and around the world, more vulnerable to challenges. A new and ambitious trade agreement cannot fail to take into account how the tobacco industry has abused the trading system through legal challenges – or threats of legal challenge – to public health measures around the world.


As negotiators meet in the coming days to follow-up on the Brunei round, I request that you provide me with a detailed accounting of how the U.S.’s current TPP tobacco proposal protects the ability of the U.S. government, or governments of other TPP countries, to regulate tobacco products without the threat of lawsuits brought under trade or investment decisions by the tobacco industry or its allies in other national governments.

I hope you will give consideration to these concerns, and find courage to put forward a new proposal or give favorable consideration to proposals of other trade partners that reflect not only the American, but also strong global consensus on tobacco priorities as they relate to protecting global health and the common good.





                                                            Sherrod Brown

                                                            United States Senator