LETTERS CARVING OUT TOBACCO FROM TRADE AGREEMENTS In their otherwise timely and well-documented article,1 Crosbie et al. perpetuate a misunderstanding with significant consequences for policy and advocacy. As they correctly point out, tobacco corporations are using trade agreement rules to chill, delay, and nullify important tobacco control laws and regulations, at the expense of the public’s health. However, there are significant differences in the intent and effectiveness of proposals to remedy this problem, and seemingly minor differences in terminology connote very different consequences. The Center for Policy Analysis on Trade and Health, The American Public Health Association, and other public health organizations continue to support a proposal to exclude tobacco control measures from challenges under trade rules. Malaysia has advanced such an historic proposal in the context of current negotiations over the Trans Pacific Partnership (TPP). The Malaysian proposal for a complete exclusion of tobacco controls from the TPP, also known as a carve-out, is vitally important. It would effectively prevent trade-based challenges to any tobacco control law or regulation promulgated at any level of government, and
Letters to the editor referring to a recent Journal article are encouraged up to 3 months after the article's appearance. By submitting a letter to the editor, the author gives permission for its publication in the Journal. Letters should not duplicate material being published or submitted elsewhere. The editors reserve the right to edit and abridge letters and to publish responses. Text is limited to 400 words and 10 references. Submit online at www. editorialmanager.com/ajph for immediate Web posting, or at ajph.edmgr.com for later print publication. Online responses are automatically considered for print publication. Queries should be addressed to the Editor-in-Chief, Mary E. Northridge, PhD, MPH, at [email protected].
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also prevent the enormous expenses countries currently face to defend those charges and the related chilling effects. In several places, Crosbie et al. refer to existing and proposed “exemptions.” Such a vehicle does not exist, and is not proposed. Rather, several World Trade Organization (WTO) agreements and also some regional and bilateral agreements include language to provide an “exception” from trade rules for some public health measures. These exceptions have provided little if any actual protection for public health measures. As written, they pit health concerns against the rights of companies and countries to trade freely. For example, Article XX (b) of the General Agreement on Tariffs and Trade2 provides an exception to its extensive rules governing cross-border trade, allowing nations to adopt and enforce measures necessary to protect human, animal, or plant life or health. Measures include laws, regulations, standards, and other actions. Nations filing trade charges claiming that another nation’s public health measures violate trade rules have been successful in almost all cases. To qualify as an exception to trade rules, a public health measure must meet a 2-tiered test: (1) that it is necessary, meaning that it is effective and that no less trade-restrictive measures to achieve the same public health purpose are available; and (2) if proven to be necessary, show that the proposed public health measure does not constitute a “disguised restriction on international trade” or “arbitrary or unjustifiable discrimination” against a foreign company, to the benefit of domestic businesses. If the effect is discriminatory, the measure may be rejected even if it is shown to be “necessary” to protect public health. For example, a nation’s restrictions on tobacco imports may be challenged on the basis that they are “necessary” for tobacco control, and are less restrictive to trade than alternative health protections, such as consumer health warnings. The less restrictive health protective alternatives can be hypothetical, and need not be demonstrably effective or politically feasible. In contrast to Malaysia’s comprehensive and effective proposal for a complete exclusion
of tobacco control measures from challenge under the TPP, the United States Trade Representative (USTR) has so far promoted explicitly identifying tobacco control measures as covered by existing exception provisions. (The exact language of this and all other proposals are secret until the negotiations are completed, but USTR has presented numerous public briefings and published summaries.) While tobacco control measures are generally considered already to be included in public health exceptions, some analysts contend that explicitly naming tobacco would provide additional defenses after a trade challenge is filed, and constitute recognition by the WTO of the particularly deadly consequences of tobacco use. This would be slim progress indeed. Rather, in addition to excluding tobacco from trade agreements, greater support for the Framework Convention on Tobacco Control would properly situate primary authority for tobacco control within public health ministries and organizations where it belongs. j Ellen R. Shaffer PhD Joseph E. Brenner MA
About the Authors The authors are with the Center for Policy Analysis on Trade and Health (CPATH). Corresponding Author Contact Information: Ellen R. Shaffer, PhD MPH, Co-Director, CPATH, PO Box 29586, San Francisco, CA 94129, 415-922-6204 (e-mail: [email protected]). Reprints can be ordered at http://www. ajph.org by clicking the “Reprints” link. This letter was accepted August 18, 2013. doi:10.2105/AJPH.2014.302266
Contributors E. R. Shaffer composed the first draft of the letter. J. E. Brenner reviewed, commented on, and provided edits to the letter.
References 1. Crosbie E, Gonzalez M, Glantz SA. Health preemption behind closed doors: trade agreements and fast-track authority. Am J Public Health. 2014;104(9): e7---e13. 2. General Agreement on Tariffs and Trade. Article XX (b). World Trade Organization. Available at: http://www. wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf. Accessed September 16, 2014.
American Journal of Public Health | December 2014, Vol 104, No. 12
Letters to the editor referring to a recent Journal article are encouraged up to 3 months after the article's appearance. By submitting a letter to the editor, the author gives permission for its publication in the Journal. Letters should not duplicate material being published or submitted elsewhere. The editors reserve the right to edit and abridge letters and to publish responses. Text is limited to 400 words and 10 references. Submit online at www. editorialmanager.com/ajph for immediate Web posting, or at ajph.edmgr.com for later print publication. Online responses are automatically considered for print publication. Queries should be addressed to the Editor-in-Chief, Mary E. Northridge, PhD, MPH, at [email protected].
e4 | Letters
also prevent the enormous expenses countries currently face to defend those charges and the related chilling effects. In several places, Crosbie et al. refer to existing and proposed “exemptions.” Such a vehicle does not exist, and is not proposed. Rather, several World Trade Organization (WTO) agreements and also some regional and bilateral agreements include language to provide an “exception” from trade rules for some public health measures. These exceptions have provided little if any actual protection for public health measures. As written, they pit health concerns against the rights of companies and countries to trade freely. For example, Article XX (b) of the General Agreement on Tariffs and Trade2 provides an exception to its extensive rules governing cross-border trade, allowing nations to adopt and enforce measures necessary to protect human, animal, or plant life or health. Measures include laws, regulations, standards, and other actions. Nations filing trade charges claiming that another nation’s public health measures violate trade rules have been successful in almost all cases. To qualify as an exception to trade rules, a public health measure must meet a 2-tiered test: (1) that it is necessary, meaning that it is effective and that no less trade-restrictive measures to achieve the same public health purpose are available; and (2) if proven to be necessary, show that the proposed public health measure does not constitute a “disguised restriction on international trade” or “arbitrary or unjustifiable discrimination” against a foreign company, to the benefit of domestic businesses. If the effect is discriminatory, the measure may be rejected even if it is shown to be “necessary” to protect public health. For example, a nation’s restrictions on tobacco imports may be challenged on the basis that they are “necessary” for tobacco control, and are less restrictive to trade than alternative health protections, such as consumer health warnings. The less restrictive health protective alternatives can be hypothetical, and need not be demonstrably effective or politically feasible. In contrast to Malaysia’s comprehensive and effective proposal for a complete exclusion
of tobacco control measures from challenge under the TPP, the United States Trade Representative (USTR) has so far promoted explicitly identifying tobacco control measures as covered by existing exception provisions. (The exact language of this and all other proposals are secret until the negotiations are completed, but USTR has presented numerous public briefings and published summaries.) While tobacco control measures are generally considered already to be included in public health exceptions, some analysts contend that explicitly naming tobacco would provide additional defenses after a trade challenge is filed, and constitute recognition by the WTO of the particularly deadly consequences of tobacco use. This would be slim progress indeed. Rather, in addition to excluding tobacco from trade agreements, greater support for the Framework Convention on Tobacco Control would properly situate primary authority for tobacco control within public health ministries and organizations where it belongs. j Ellen R. Shaffer PhD Joseph E. Brenner MA
About the Authors The authors are with the Center for Policy Analysis on Trade and Health (CPATH). Corresponding Author Contact Information: Ellen R. Shaffer, PhD MPH, Co-Director, CPATH, PO Box 29586, San Francisco, CA 94129, 415-922-6204 (e-mail: [email protected]). Reprints can be ordered at http://www. ajph.org by clicking the “Reprints” link. This letter was accepted August 18, 2013. doi:10.2105/AJPH.2014.302266
Contributors E. R. Shaffer composed the first draft of the letter. J. E. Brenner reviewed, commented on, and provided edits to the letter.
References 1. Crosbie E, Gonzalez M, Glantz SA. Health preemption behind closed doors: trade agreements and fast-track authority. Am J Public Health. 2014;104(9): e7---e13. 2. General Agreement on Tariffs and Trade. Article XX (b). World Trade Organization. Available at: http://www. wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf. Accessed September 16, 2014.
American Journal of Public Health | December 2014, Vol 104, No. 12
