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Trade leaks and litigation funds: how the tobacco industry reels us into more pointless battles

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A few weeks ago, I expressed my frustrations at the endless cycle of the tobacco industry demanding more and more evidence to justify simple tobacco control measures – and governments around the world giving in. Yesterday, parts of the Trans-Pacific Partnership’s (TPP), a trade agreement currently being negotiated between 12 countries including the US, were leaked. The leaks show that if the investment chapter of the TPP is enacted in its present form, it would provide another avenue for large corporations to sue governments when they try to pass laws protecting the public health (such as tobacco control).
One of the industry’s key tactics is to use trade and investment agreements to threaten law suits against countries that try to implement bona fide tobacco control measures. All of the measures that have been attacked through trade agreements are well established public health measures directly aimed at protecting and promoting the public health, not at impacting trade. In fact, most of these measures have been endorsed by the 180 countries that are parties to the first global public health treaty, the Framework Convention on Tobacco Control (FCTC) – including the countries now bringing trade-based attacks on the tobacco industry’s behalf.
Raising money for legal battles is a good thing, right?
Even when it has no real legal arguments, the industry knows that many governments don’t have the millions of dollars needed to go to court and fight back. So much so, that last week, the Bloomberg Philanthropies and the Bill & Melinda Gates Foundation launched an anti-tobacco trade litigation fund, to make $4 million available to governments to fight such anticipated lawsuits. According to Bill Gates, “country leaders who are trying to protect their citizens from the harms of tobacco should not be deterred by threats of costly legal challenges from huge tobacco companies.” This is promising news in the fight against big tobacco, though $4 million in the context of legal fees is far less than it sounds.
The real question is, why do we need to keep fighting these nonsensical trade-based legal battles? Why not revise the TPP and the upcoming U.S.- EU trade treaty so they cannot be used by the tobacco companies or their country allies to attack bona fide tobacco control measures? Unfortunately, it is my understanding that the resources from the new Bloomberg/Gates fund cannot be used to advocate for fairer provisions during the negotiating process of the agreements, but are only available for the legal costs of defending litigation arising from those treaties. That is, rather than providing much needed resources to advocate for an agreement that doesn’t even allow big tobacco to bring these groundless attacks, the fund will only be used to later defend the legal challenges that are brought.
The trade talks are a perfect opportunity end the pointless legal battles

The solution is simple: exclude tobacco from the TPP agreement. Those same countries that adopted the FCTC, the global tobacco treaty, can agree not to allow big tobacco to sue them when they try to pass laws to protect their own citizens from the harms of tobacco. Briefly, the US government proposed exactly this, but later abandoned the plan. The Malaysian government has also put forward such a proposal, and late last year more rumors emerged about the US floating the idea again. These signs were very promising and were due in large part to the advocacy efforts of NGOs and public health organizations trying to counter some of the influence of big tobacco with a tiny fraction of the resources. Without strong opposition from the public health community, it isn’t difficult to see how powerful lobbying from a multi-billion dollar tobacco industry can ensure that their interests remain protected as governments negotiate trade and investment treaties.
A tobacco exemption in the TPP, and in all other trade and investment agreements, would achieve the important goal identified by Bill Gates, of countries being able to legislate to protect their citizens without fear of costly legal challenges – but without giving the industry the power to even make the threats and force so much money to be wasted on legal fees in the first place. Since the industry’s tactic is to use threats of law suits regardless of whether it has a legal case, an exemption is the only way to ensure that governments can avoid being threatened and having to pay millions of dollars defending their measures.
How much more proof do we need to accept that smoking is harmful, addictive and needs to be regulated? We have the knowledge, tools and capability to prevent the deaths of 6 million people every single year – so why we are giving the tobacco companies even more power to stop us?

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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