By Chris Bostic
Deputy Director for Policy, ASH (US)

For those concerned about the conflict between trade and tobacco control, negotiations over the Trans-Pacific Partnership Agreement (TPPA) have been a key battleground over the past several years. That fight is nearing its end, as negotiators rush to find common ground on myriad disagreements in order to finalize the treaty by the end of this year. One of the questions remaining is whether to treat tobacco as the unique product that it is.

The TPPA is being negotiated among 12 countries bordering the Pacific. When completed, it will be the biggest regional trading bloc in the world, and other countries are expected to join.

Tobacco control (and other) activists have entered the fight over the TPPA for two main reasons. First, it is being touted by the United States and other governments as the model free trade agreement for the 21st century. It is therefore likely to be the basis for future economic integration, including the Trans-Atlantic Trade and Investment Partnership (TTIP) between the US and the European Union.

TPPA countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, Vietnam

Second, and more ominously, the TPPA includes what is called investor-state dispute settlement (ISDS) rights, allowing corporations to directly sue governments in international trade courts over legislation and regulations. These rights are similar to those allowing tobacco multinationals to sue Australia and Uruguay over packaging regulations.

In April 2012, the US announced that it had drafted a “safe harbour” (or “exception”) for tobacco measures that it would propose for the TPPA. The draft was the result of an internal process, championed by the Department of Health and Human Services on one side, and politicians and business associations defending the tobacco industry on the other. Tobacco control groups applauded the administration’s initiative, but the backlash from the corporate world and members of Congress from tobacco-growing states was swift and loud.

Like all text of the TPPA, the draft exception has only been seen by those serving on trade advisory panels (negotiations are held behind closed doors, and the working drafts are never released). There has been some scepticism among analysts that the exception will enhance protection for tobacco regulations, and some have opined that it could actually make things worse. However, most public health groups have continued to press the US to propose the draft, since at least the conversation will have started.

It is now 16 months later, and the US still has not proposed the tobacco exception, citing a need for continued intra-governmental consultation in the face of widespread corporate and political push-back. The draft has served one unfortunate purpose: no other TPPA country has been willing to propose anything on tobacco while all wait to consider the US proposal.