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Recent Posts from the O’Neill Institute Trade, Investment, and Health Blog

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TIHCheck out two recent posts from the O’Neill Institute’s blog on Trade, Investment, and Health, featured below.

About: The O’Neill Institute Initiative on Trade, Investment and Health aims to bridge the gap between public health and international trade and investment law. The initiative is focused on the effects of trade and investment agreements on domestic regulatory autonomy.

The initiative fosters legal and multi-disciplinary scholarship on the intersection of trade, investment and health. The initiative also disseminates knowledge about international trade and investment law into the broader public health community, to enhance the ability of health lawyers and policy-makers to engage with international trade and investment agreements.

New Tobacco Proposal in TPPA Negotiations

As Inside US Trade reported here yesterday the US is planning to table tobacco specific language in the upcoming round of Trans-Pacific Partnership (TPP) negotiations in Brunei. USTR and HHS held an off-the-record stakeholder consultation this morning in DC to brief health groups on the proposal.

As with the prior proposal discussed, USTR has not released the proposed text for public scrutiny, making it difficult to assess the actual legal impact of the proposal. Nonetheless, as Inside US Trade suggests, the proposal will have two elements.

The first element is a substantive clause stating that measures to prevent or reduce tobacco use fall within the scope of the general exceptions (specifically within the scope of a general exception equivalent to Article XX(b) of the GATT). It seems that the clause will be modeled on Article 23.1 of the Korea – US FTA, the relevant portion of which states “[t]he Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.”

Book chapter on international investment law and non-communicable disease

Abstract: Investment claims by Philip Morris against Australian and Uruguayan tobacco packaging regulations have not only signaled the opening of a new front in tobacco litigation, but have highlighted the broader potential implications of international investment law for prevention and control of non-communicable diseases (NCDs). This chapter examines those potential implications and highlights how efforts to induce investment may tie the hands of health regulators. The discussion first examines state contracts, drawing upon examples from the tobacco sector where limits on regulation have been imposed by contracts for the sale of state-owned enterprises and to host international sporting events. The chapter then examines the implications of international investment agreements (IIAs) for regulation. Although IIAs leave host states a wide degree of regulatory autonomy, there are legal risks associated with attempts to induce investment in the food, beverage and tobacco sectors that states should manage carefully….read the complete chapter here.

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