How civil society influenced TPP negotiations over tobacco

On 5 October 2015 the world’s largest trade agreement, the Trans-Pacific Partnership (TPP), was signed. It includes 12 countries and applies to roughly 40 percent of the world’s economy. Notably, sections that limit governments’ powers to regulate products have been specifically exempted in the case of tobacco as a result of intense lobbying by civil society*.

How did civil society have such an impact?

Chris Bostic, ASH (US)

Chris Bostic, ASH (US)

“This campaign fell very neatly into our mandate,” says Chris Bostic, deputy director of policy at ASH (US). “Our work is global, rather than simply domestic or international. Since the US is not a Party to the FCTC (WHO Framework Convention on Tobacco Control) it is often left out of campaign strategies, but in many areas – including trade – the US has a profound influence on global policy.”

Mary Assunta of the Southeast Asia Tobacco Control Alliance (SEATCA) agrees. Not only does the US drive the trade process, backed by large corporations, says Mary, “powerful business organisations such as the US Chamber of Commerce and US ASEAN Business Council have direct contact with top leadership of countries in our region and they follow through with their lobbying. The tobacco industry’s interest is represented through the business chambers.”

SEATCA became involved in the TPP issue because it kept hearing trade-related objections to proposed tobacco control measures, such as pictorial warnings on tobacco packages in Malaysia and Cambodia, says Mary. Tobacco companies argued that the warnings would violate the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). “Article XXb in the General Agreement on Tariffs and Trade (GATT), which is supposed to protect a government when they take action to protect public health, was obviously not enough. We needed something more specific on tobacco,” she adds.

Mary Assunta, SEATCA

Mary Assunta, SEATCA

Susan Liss, Executive Director at Campaign for Tobacco-Free Kids, notes that trade and tobacco has been on CTFK’s radar for more than a decade. The organisation became more active in 2010, working with supporters of the Uruguayan Government after it was sued by Philip Morris, and the issue ballooned after Philip Morris “went to war” with Australia over plain packaging. Like Mary and Chris, she agrees that the final text of the treaty does not fully protect tobacco control but says “the fact that we made so much progress is terrific and very very significant.

“This is the first treaty ever to treat tobacco in any way differently,” adds Susan. “The ISDS [Investor-State Dispute Settlement mechanism – see more below] carve out, it does appear, will have an important impact in limiting these kinds of lawsuits that are chilling countries’ tobacco control measures … but, we do not view it as the end of our advocacy.”

She predicts “a very intensive campaign by the [tobacco] industry to potentially cause some problems with this provision when (the US) Congress considers this treaty … We have a lot of work here in the US to protect what has been achieved.”

Susan Liss, CTFK

Susan Liss, CTFK

ASH (US) devoted nearly five years to the TPP issue, says Chris. The tobacco control community was joined by many other groups. “Some [of them] saw it as the obvious first step in addressing the friction between trade and investment agreements and public health. Others simply thought that, given global momentum, the time was ripe for a victory on tobacco,” he says.

That broader coalition was essential, adds Mary: “We needed the support and expertise of the more experienced international advocacy NGOs such as the developmental, consumer and human rights groups and academics who work on these issues regularly. These non-tobacco groups and academics were instrumental in gaining support for advocacy on championing for a tobacco carve-out – in keeping the issue alive when we were physically not present at most of the negotiations.”

Malaysia critical

Susan believes a critical moment occurred in the campaign when advocates – including Mary and SEATCA – took on Malaysia’s trade minister at negotiations in Borneo in July 2013, triggering a public outcry to protect tobacco. One month later the trade minister tabled a proposal to exclude tobacco from the treaty. “If civil society had not been as strong in the region – in Malaysia particularly – we would not have got where we got to,” says Susan. “They engaged in tremendous advocacy to get the result that they did.”

What lessons were learned? Not enough tobacco control NGOs are involved in trade issues, says Mary. “We need more advocates from developing countries to be funded and be more active in the discussions.”

Also, governments – even trade ministries – are not monoliths, says Chris, and advocates need to reach out to individual officials. “At nearly every TPP negotiation, we were literally lobbying, i.e., waiting in the lobby to grab 10 minutes with a delegate during breaks. Some of these individuals became internal advocates within their ministries.”

Lessons learned:

  • Trade negotiators and departments of international trade don’t regard tobacco as an issue but as just another product. At the same time, departments of health are unfamiliar with trade matters and face difficulty in effectively making a case for tobacco control measures in trade agreements;
  • More effort needs to go into monitoring and countering organisations like the US Chamber of Commerce, and their representatives;
  • Advocacy needs to be based on solid arguments and research. Chris says the legal research base alone filled several hundred pages (thanks especially to work by the Georgetown University Law Center’s Harrison Institute).
  • Play the whole ‘chessboard’, by reaching out to everyone who might support your position: executives, trade ministers, parliamentarians, NGOs, media and even corporations. “We knew the tobacco industry and its allies would leave no stone unturned, so we needed to turn over every stone ourselves,” adds Chris. “In the process, we gained allies.”

* The TPP (Article 29.5) gives governments the chance to opt out of its Investor-State Dispute Settlement (ISDS) mechanism – which allows companies to sue governments for allegedly violating the treaty – in regards to tobacco. However, other avenues can (and are being used). For example, a government could sue another government’s measures basically on behalf of a company. Currently four countries have done just that: suing the Australian Government at the World Trade Organization for its plain packaging measures. The tobacco industry is paying their costs. See more examples in this letter to the editor by Mary Assunta.

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