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No smoke without fire: Negotiations with tobacco firms must be transparent

Aug 28th, 2015
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http://www.independent.co.uk/voices/editorials/no-smoke-without-fire-negotiations-with-tobacco-firms-must-be-transparent-10475680.html

Despite the almost comical redacting of entire pages of material, the release of documents by the European Commission on the implementation of TTIP (Transatlantic Trade and Investment Partnership) sheds useful light on the Commission’s dealing with the big tobacco firms.

The suspicion is that these powerful multinationals are using their influence in a (literally) unhealthy manner, and attempting to make the European Union agree to provisions that would seriously harm efforts to cut back on tobacco smoking across Europe – a large and profitable market for the cigarette makers. While rates of smoking, among men at least, have been coming down across Western Europe since the cancer link was discovered more than half a century ago, Eastern Europe may hold greater opportunities for expansion for tobacco companies, as those economies grow in prosperity.

Despite the efforts of Corporate Europe Observatory to make a reality of freedom of information, Brussels still clearly has a good deal to learn about transparency. TTIP will have a dramatic effect on Europe’s peoples. There remain deep concerns that the benefits of trade liberalisation will be negated by a raft of concession to big business.

MEPs slam commission for ‘smoke-screening’ tobacco lobby meetings

Aug 27th, 2015
by Editor.
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Written by Julie Levy-Abegnoli

The commission has been attacked for releasing highly censured documents linked to TTIP talks with big tobacco.

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As part of its effort to make EU trade agreement talks more transparent – including those for the controversial transatlantic trade and investment partnership (TTIP) – the European commission has released a series of documents detailing contacts with the tobacco industry.

This was done at the request of transparency campaigners Corporate Europe Observatory (CEO), back in March.

However, much of the documents’ contents were blacked out, including the names of all the lobbyists and commission officials involved in meetings, dates and even, in a 14-page letter from British American Tobacco, a page number.

Defending the heavy censorship of the files, commission secretary-general Catherine Day argued that “public interest [on the issue] does neither outweigh the public interest in protecting the commission’s international relations and decision-making process, nor the commercial interests of the companies in question in this case.”

Group of the Progressive Alliance of Socialists and Democrats MEP Glenis Willmott blasted Day’s reasoning, pointing out that “there is a fundamental conflict between the public interest and the commercial interests of the tobacco industry, which rely on the promotion of a product that is the leading cause of preventable death and disease in Europe.”

Fellow Socialist deputy Catherine Stihler said, “my colleagues and I have been clear that bringing an end to secret investor tribunals are essential elements of any EU-US trade agreement and I would think it was issues such as investor-state dispute settlement (ISDS) being discussed at these meetings”.

ISDS has been one of the most hotly debated aspects of TTIP, with many MEPs staunchly opposing it. It was originally planned as a private arbitration mechanism between governments and corporations, leading to fears that companies would have too much power over national policymaking.

During last month’s plenary session, parliament backed a resolution calling for an amended ISDS, with “publically appointed, independent professional judges [in] public hearings”, according to the adopted text.

Stihler added, “tobacco is the leading cause of preventable death and disease in the EU, so it is in the public interest for talks with this industry to be transparent.”

“Protecting public health is of the highest importance, not commercial interests of big business. I would encourage the commission to offer further insight into the talks.”

Meanwhile, Irish MEP Nessa Childers has submitted several parliamentary questions on what she described as “the commission’s smoke-screening of its dealings with big tobacco in trade talks.”

She underlined that, “this level of secrecy undermines the legitimacy of trade talks and raises questions about the propriety of the commission’s contacts with big tobacco when they should be making them transparent and kept to the minimum necessary to regulate this industry, in accordance with world health organisation rules that it has subscribed to.”

Childers said she “would like to see if the commission can shed light on the inconsistencies within secretary-general Day’s response and between it and yesterday’s [Wednesday] denial from the commission’s team in charge of EU-US trade talks that these documents have nothing to do with the TTIP agreement under negotiation.”

The commission has repeatedly argued that the documents were censured because they “contain elements that relate to [its] negotiating position with regards to tobacco in the ongoing bilateral negotiations for a free trade agreement with the USA and Japan.”

According to Childers, “in the face of all these tarred pages, they seem not only to be very much connected, but also that the commission is happy to provide the industry with information they don’t want the public to see.”

CEO said in a statement that it was “deeply concerned about the commission’s secrecy around its relations with tobacco industry lobbyists and more widely the secrecy around its international trade negotiations”.

The campaign group said they will file a complaint with European ombudsman Emily O’Reilly, who is due to publish the results of her investigation into tobacco lobbying in the coming weeks.

About the author
Julie Levy-Abegnoli is a journalist and editorial assistant for the Parliament Magazine

Total Black Out: Brussels Accused of Cover-up Over Tobacco Lobby Dealings

Aug 27th, 2015
by Editor.
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http://sputniknews.com/europe/20150827/1026259093.html

The European Commission is accused of a widespread cover-up after refusing to release the full details of dealings between its officials and the tobacco industry during negotiations for the highly controversial Transatlantic Trade and Investment Partnership (TTIP) treaty.

Following a freedom of information (FOI) request by research and campaign group Corporate Europe Observatory (CEO), the European Commission released an almost completely redacted letter that it received from British American Tobacco regarding their recent correspondence.

The 14-page document was almost completely redacted, with almost all of the content, including names of officials and lobbyists, dates of the meetings and even the issues discussed blacked out.
Less than 5 percent of the text was visible, which included merely a few standard introductory and closing remarks.

The documents were in relation to discussions about the proposed TTIP trade deal being negotiated between the US and EU, as well as separate negotiations between EU and Japanese officials.

Fears Over ISDS

TTIP negotiations have been dogged by a severe lack of transparency of behalf of government officials involved in the talks, with the almost completely blacked out letter increasing fears that such a trade deal will include provisions for tobacco companies to sue governments if they attempt to tighten smoking legislation.

The investor-to-state dispute settlement (ISDS) process is currently being used by tobacco giant Philip Morris, which is undertaking legal action against Australia after the government introduced plain cigarette packaging, while the same company is also suing Uruguay for $25 million over its attempts to increase health warnings of the packaging of tobacco products.

CEO has denounced the release of the letter, backing its call for a full disclosure of negotiations between European officials and tobacco lobby groups.

The group says that full disclosure of the documents is necessary in order to “enable the public to scrutinize the nature of the relations between DG Trade [Directorate-General for Trade of the European Commission] and the tobacco industry” and “to enable the public to assess the extent to which the EU-Japan FTA (and TTIP) poses a risk to tobacco control policies.”

In response, Catherine Day, Secretary-General of the European Commission, dismissed arguments that the transparency of negotiations was in the public interest, saying that it: “does neither outweigh the public interest in protecting the Commission’s international relations and decision-making process, nor the commercial interests of the companies in question.”

Day added that the documents could not be released in their entirety because they “contain elements that relate to the Commission’s negotiating position with regards to tobacco in the ongoing bilateral negotiations for a free trade agreement with the USA and Japan.”

Opposition to TTIP Grows

Following the FOI request, a number of politicians and campaign groups have heaped more pressure on EU governments to come clean on the highly secretive TTIP negotiations, while CEO officials say they are in the process of appealing against the redacted documents.

“CEO is deeply concerned about the Commission’s secrecy around its relations with tobacco industry lobbyists and more widely the secrecy around its international trade negotiations. We are therefore preparing a complaint to the European Ombudsman.”

The proposed TTIP trade deal, currently being negotiated by US and European Union member states, has attracted widespread public criticism in Europe for the lack of transparency associated with negotiations.

There are fears that the deal will result in a reduction of health and safety standards in Europe, and will favor large US multinational corporations, which critics say could kill off many European small businesses.

On top of widespread public demonstrations against TTIP, 2.5 million people have signed a petition against the treaty, with critics arguing that EU officials are determined to ram through the deal despite the wishes of the European public.

TTIP controversy: The European Commission and Big Tobacco accused of cover-up after heavily redacted documents released

Aug 26th, 2015
by Editor.
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http://www.independent.co.uk/news/uk/home-news/ttip-controversy-the-european-commission-and-big-tobacco-accused-of-coverup-after-heavily-redacted-documents-released-10473601.html

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Paul Gallagher

Wednesday 26 August 2015

The European Commission has been accused of a cover-up after refusing to release details of talks between its officials and the tobacco industry during negotiations over the proposed Transatlantic Trade and Investment Partnership (TTIP) treaty.

Corporate lobbying campaigners published documents that revealed the EU’s executive body had met and corresponded with lobbyists from British American Tobacco and Philip Morris.

But the documents, as released, revealed little else.

Almost all the content, including the names of officials and tobacco lobbyists involved, the issues discussed and even the dates some meetings took place, had been redacted.

The documents relate to ongoing talks between the EU and the United States over the proposed TTIP free trade deal, as well as separate talks between the EU and Japan.

Critics of the trade talks, which centre on reducing the regulatory barriers to international trade for big business, said the documents back up fears that TTIP will allow tobacco giants to take legal action against the UK and other European governments who attempt to tighten smoking legislation.

Responding to a Freedom of Information request from an EU watchdog regarding contacts between officials and the tobacco industry, the European Commission released a set of documents that had been so heavily redacted as to be meaningless. In this 14-page letter from British American Tobacco from its London HQ, outlining its “serious concerns with the consistency of [redacted]”, only five per cent of the text was visible.

So-called “Big Tobacco” firms have already used similar legislation to sue countries around the world: Philip Morris used a comparable trade treaty to take legal action against Australia over mandatory plain cigarette packaging and is also suing Uruguay in a $25m lawsuit over its attempts to enlarge health warnings on cigarette packets.

The heavily redacted documents were released by Catherine Day, Secretary-General of the European Commission, in reply to a freedom of information transparency request by the research and campaign group Corporate Europe Observatory (CEO).

They include a 14-page letter from British American Tobacco, written on 15 May last year from the company’s London office, which sets out its “serious concerns with the consistency of [redacted]”.

The remaining 13 pages are blacked-out entirely with the exception of some perfunctory closing remarks. A previous letter from Commission officials to the tobacco company is also almost entirely redacted with the exception of a reference to “allegations” made by BAT, presumably over the trade talks.

In another document – a one-page summary of a meeting between Commission officials and the US cigarette firm Philip Morris – even the date of the meeting is removed.

CEO had argued for full disclosure of the documents citing the EU’s freedom of information law and the World Health Organisation’s Framework Convention on Tobacco Control. The latter’s guidelines oblige governments to limit interactions with the tobacco industry to a minimum and to ensure full transparency of those interactions that occur.

Ms Day refused the request allowing only “partial access” stating that the documents “contain elements that relate to the Commission’s negotiating position with regards to tobacco in the ongoing bilateral negotiations for a free trade agreement with the USA and Japan.”

She said: “Whilst I fully recognise the importance of transparency in enabling citizens to follow trade negotiations, I take the view that this public interest does neither outweigh the public interest in protecting the Commission’s international relations and decision-making process, nor the commercial interests of the companies in question in this case.”

The Secretary General said disclosure of the discussions with BAT would reveal the Commission’s negotiating positions and tactical considerations which, in turn, would weaken the EU’s position in the ongoing trade talks.

The CEO campaign group has said it was “deeply concerned about the Commission’s secrecy around its relations with tobacco industry lobbyists” and is preparing a complaint to the European Ombudsman.

Campaigners fear that a system of international-state dispute settlements (ISDS) created by TTIP will allow multinational firms including tobacco companies to sue European governments in tribunals ruled upon by lawyers.

Reacting to the publication of the redacted documents, TUC General Secretary Frances O’Grady said: “Trade agreements must be negotiated in the public interest not for private profit. The agreements currently being negotiated allow foreign investors, such as tobacco companies, privileged access to huge compensation payments for democratically-made decisions that might threaten their future profits.

“The TUC believes there is no place for such ISDS provisions in any trade agreement. A level playing field means the same arrangements for foreign investors as for workers, consumers and other stakeholders. EU trade negotiators must operate on the principle that their negotiations should be public unless there is a good reason for confidentiality. Sadly, they seem more wedded to keeping this secret unless they are forced into the open.”

Labour leadership hopeful Andy Burnham described the lack of transparency as ‘alarming’ and ‘damaging’ (Reuters)

Labour leadership candidate Andy Burnham told The Independent he would give “no guarantee of support” for the TTIP deal if he was elected.

He said: “The alarming lack of transparency in the TTIP negotiations has damaged public confidence in the entire process. In particular, the involvement of big tobacco in those discussions raises serious concerns and appears to go against commitments under the World Health Organisation’s Framework Convention on Tobacco Control not to include tobacco companies in policy discussions. There must be a full and open public debate about its merits and challenges before any decision is made.”

The European Union claims a number of “myths and false claims” have been made about TTIP including one that “big business is calling the shots on TTIP”.

In a briefing document on “the top 10 myths of TTIP: separating fact from fiction” the European Commission says: “The TTIP talks are the most open ever for a trade deal and our negotiators are consulting widely.”

That claim was dismissed as “laughable” by campaigners last night. Blanche Jones, Campaigns Director at political activist group 38 Degrees, said: “These redacted documents prove that the officials behind TTIP, a deal that will affect millions of people, are laughing in the face of democracy. What use is a document with almost all of the words blacked out? It must be suspicious to keep it so secret.

“Leaks to the TTIP text so far have revealed huge dangers for our rights, our public services and our environmental protections. 38 Degrees members are calling on the European Commission to end this nonsense now – the public has a right to know what powers big businesses are lined up to get.”

Labour MEP and European health spokesperson Glenis Willmott said: “I’m deeply concerned that the Commission is not prepared to give further details on its dealings with the tobacco industry.

The Commission’s reply states that the public interest in transparency does not outweigh the commercial interests of the companies in question. Yet there is a fundamental conflict between the public interest and commercial interests of the tobacco industry, which rely on the promotion of a product that is the leading cause of preventable death and disease in Europe.

“Given the importance of strong tobacco control policies in protecting public health, I think it’s entirely reasonable for the public to have an interest in tobacco industry lobbying on TTIP.”

Although MEPs cannot start or stop trade talks the European Parliament can approve or reject TTIP once negotiations, set to continue beyond 2016, are concluded.

A spokesperson for British American Tobacco said: “The letters that were shared do not relate to any tobacco control measures nor do they attempt to influence tobacco control regulations; but rather contain commercially-sensitive information relevant to the Commission’s various negotiations regarding free trade agreements.

“Commission officials have the right to hear all views that impact the whole of the EU business community when formulating new trade agreements. We advocate transparency in all of our communications where it does not conflict with commercial confidentiality and sensitivities, and believe that all sides should adopt this approach

The Trans-Pacific Partnership Agreement and Implications for Access to Essential Medicines

Aug 20th, 2015
by Editor.
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http://jama.jamanetwork.com/article.aspx?articleid=2430590

Jing Luo, MD1; Aaron S. Kesselheim, MD, JD, MPH1

1Program on Regulation, Therapeutics, and Law, Division of Pharmacoepidemiology and Pharmacoeconomics, Department of Medicine, Brigham and Women’s Hospital and Harvard Medical School, Boston, Massachusetts
JAMA. Published online August 20, 2015. doi:10.1001/jama.2015.10872

After a difficult legislative battle, President Obama signed into law Trade Promotion Authority on June 29, 2015. The legislation allows for an up-or-down vote with no amendments in Congress for international trade agreements such as the Trans-Pacific Partnership (TPP) Agreement. The TPP Agreement includes 12 Asia-Pacific countries (United States, Canada, Mexico, Peru, Chile, Japan, Vietnam, Malaysia, Singapore, Brunei, Australia, and New Zealand) with a collective trading power amounting to 40% of the global gross domestic product. The TPP Agreement is still being negotiated; recently, in a meeting of trade ministers in Maui, Hawaii, negotiators failed to finalize the text of the Agreement due in large part to disagreement regarding intellectual property protections for pharmaceutical products.1

Intellectual property rights, including patents, are central to the business model of brand-name pharmaceutical manufacturers. Manufacturers can charge high prices during patent-protected periods without fear of competition, earning profits that are intended to provide incentives for investment in drug innovation. However, low-income patients frequently lack access to expensive drugs, and excessive spending on pharmaceuticals can strain government budgets, leading to reductions in other health services. In addition to addressing barriers to trade, the TPP will affect the pharmaceutical market in member countries due to its intellectual property provisions.
It is critical to ensure that patents protect only innovative pharmaceutical products and for governments to balance grants of market exclusivity with other competing interests, such as the widespread availability and affordability of certain drugs. In the United States, for example, patents are supposed to be issued only to novel products that are an innovative step beyond what already exists, and patents along with a variety of regulatory and other exclusivities permit conventional drugs to receive an average time of about 13 years of market exclusivity before competing generic versions are approved.2

The 1994 Trade Related Aspects of Intellectual Property (TRIPS) Agreement, which countries must agree to as a criterion for membership into the World Trade Organization, standardized basic intellectual property protections for pharmaceutical products around the world. Before TRIPS many lower-income countries had chosen not to grant patents for pharmaceutical products, emphasizing low-cost access over contributing to incentivizing innovation; however, the TRIPS Agreement required all signatory countries to change their policies and grant pharmaceutical patents.

In the years since, countries have implemented this requirement in different ways. Indian law, for example, required new forms of existing drugs to show significant improvements in efficacy before they can be granted a patent. This controversial provision was recently upheld in an Indian Supreme Court decision related to a new formulation of imatinib (Gleevec), a tyrosine-kinase inhibitor used to treat chronic myelogenous leukemia.3 In that decision, the Indian Supreme Court stated that the beta crystalline form of imatinib was not patentable in part because it was too similar to an older formulation discovered prior to India’s enforcement of patents for pharmaceutical products under TRIPS.

The TPP may end such flexible approaches to granting patents and add a number of new requirements related to intellectual property in addition to the TRIPS measures. Even though the exact details of the TPP are not known, negotiating drafts have been leaked, with the most recent intellectual property chapter dating from May 11, 2015.4 This chapter includes 8 sections covering a wide range of topics including patents, trademarks, copyright, industrial designs, and geographical indications.

In the case of pharmaceuticals, the text of the draft seeks to bring international intellectual property law into closer alignment with current US standards regarding the scope of what may be patented. For example, US negotiators favor allowing patents to cover inventions in all fields of technology (including inventions derived from plants and microorganisms), despite legal systems in other countries that include a more limited scope of patentable subject matter.

The TPP also could allow new uses of a known product to be granted additional monopoly protection. This may reduce TPP countries’ abilities to create patent laws that seek, as India’s does, to ensure that only truly innovative and clinically important pharmaceutical products are patentable. Seeking patents for the new methods of using existing drugs is a common tactic that pharmaceutical manufacturers in the United States use to delay the generic competition. For example, Eli Lilly sued Canada for $500 million dollars over its decision to invalidate 2 pharmaceutical use patents: the use of olanzapine (Zyprexa) in schizophrenia and atomoxetine (Strattera) in attention-deficit/hyperactivity disorder.5 Both drugs were previously patented in Canada for other uses, and a generic manufacturer (Novopharm) successfully challenged the validity of these patents by showing that there was insufficient evidence to support the claims at the time of filing. In the case of olanzapine, Lilly attempted to secure additional monopoly protection by restating the claims from an earlier patent while simultaneously failing to demonstrate substantial advantage over other antipsychotics for this new use, which is the current standard required under Canadian law. Under the TPP, a multinational pharmaceutical company could use the investor-state dispute settlement mechanism to challenge domestic laws like the one in Canada, which are intended to promote timely availability of generic drugs.6

The TPP also contains provisions that could make it more difficult to successfully challenge patents after they have been issued by shifting the burden of proof onto the challengers. This would ensure that potential generic market entrants must expend substantial resources to clear the numerous interrelated patents that innovator companies obtain on their products, increasing the cost and time of generic entry. The TPP draft could also impose substantial civil and criminal penalties on potential generic manufacturers found to have infringed patents, increasing the business risk for these companies. Moreover, language requiring the seizure and destruction of in-transit goods for “confusingly similar” products may expand the geographic scope of the TPP to affect countries not part of the direct agreement, such as India or Brazil, which may find it more complicated to ship generic medicines that are legal under their patent regimes through TPP member states.

In addition to forcing TPP member states to adopt patent laws that closely align with that of the United States, the TPP could also require member states to adopt the US Food and Drug Administration’s approach to preventing generic manufacturers from reaching the market for a minimum of 5 to 7 years after the approval of a new small-molecule drug, 3 years for new indications, and 12 years after approval of a new biologic drug.7 Nine TPP countries provide no guaranteed exclusivity periods for safety and efficacy data associated with biologic drugs because the complex manufacturing processes required to create these medicines naturally makes for fewer follow-on biologic competitors and fewer cost reductions arising from that competition. Notably, in the United States, the Federal Trade Commission similarly recommended no guaranteed exclusivity periods for biologics, and the Obama administration has repeatedly proposed to reduce the period of biologic exclusivity from 12 to 7 years for these same reasons. The TPP may reduce the flexibility of US policymakers to change the period of guaranteed biologic data exclusivity in the future, maintaining high biologic drug prices.

Thus, in its current form, the TPP could lower the bar for the patenting of pharmaceutical innovations and make it substantially more difficult for generic manufacturers to enter the market in TPP member countries. In addition, legal generic products could become seized during international transit. The overall effect of the TPP could be to extend the effective patent life of drugs and to decrease the availability of generic drugs or biosimilar medicines available to patients around the world.

Some economists have suggested that the intellectual property chapter of the TPP should be abandoned, because it could result in higher drug prices for patients.8 By contrast, industry representatives suggest that strong intellectual property protections are necessary for costly research and development, although this assertion has been disputed.9

It is likely that a balance between these competing objectives has not been struck by the TPP agreement in its most current form. The recent breakdown in negotiations suggest that some countries are taking a hard-liner on pharmaceutical-related provisions, so there remains hope that an agreement could be negotiated. If the United States continues down the path exposed in the leaked draft and expects other TPP countries to accept new standards for pharmaceutical intellectual property protections, it should also allow concessions that would encourage low-cost and high-quality generic drugs competition once market exclusivity ends. For example, data exclusivity for medicines should not be redundant or geographically transportable, meaning that if a 5-year exclusivity period has already expired in the United States, no additional exclusivity would be granted by regulatory authorities in other TPP member countries. In addition, meaningful technology transfer could be incorporated to promote local pharmaceutical manufacturing capacity. An innovative financing instrument, such as a nominal levy on top of existing tariffs for nonpharmaceutical trade (eg, goods and services), could also be created to help less-wealthy, signatory countries procure medicines that will inevitably be made more expensive by the agreement.

If you’re not already terrified about the potential human cost of TTIP, these examples will do it

Aug 20th, 2015
by Editor.
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http://www.independent.co.uk/voices/if-youre-not-already-terrified-about-the-potential-human-cost-of-ttip-these-examples-will-do-it-10464049.html

Ruby Stockham

In one of the most famous cases of TTIP-like nightmares, tobacco ‘giant’ Philip Morris sued Uruguay for its anti-smoking campaign

Unfortunately, the Transatlantic Trade and Investment Partnership (TTIP) is not very interesting. Part of the reason that the super secretive trade deal has been able to dodge scrutiny so nimbly is that the nuance of the legislation hardly makes for great headlines. Crucially, TTIP doesn’t have a face.

But it will do. If the deal goes through, there will be no shortage of human stories about the harm it has caused.

Take, for example, the farmers who will see their income fall by 0.5 per cent (the EU’s own estimate) if the partnership is implemented. TTIP’s deregulatory approach will lower EU food and environmental safety standards to bring them in line with those of the US. This will lead to an increase in factory farming that will harm both the environment and the livelihoods of farmers in the UK and across Europe.

And what about the animals themselves? The US has far fewer regulations on farm animal welfare than the EU does. It uses, for example, barren battery cages for hens, too small for a single animal to spread its wings in and yet employed to house three or four. You don’t have to be an animal lover to see that a deal which brings Europe down to this level is absolutely regressive.

For farmers, this is that ‘race to the bottom’ so beloved of the Conservatives – they’ll have to choose between lowering their standards of welfare, and trying to stay upright in a sea of aggressive corporate competition.

Then there’s the NHS. There is still a great deal of uncertainty around what TTIP will mean for the NHS, and the negotiators have a great aptitude for keeping the details murky.

The EU says that it will negotiate an exemption from the deal for publicly funded health services, and UK MEPs have scrambled to echo this. But what constitutes a ‘health’ service? What about those parts of the NHS that are not directly related to patient care like catering, IT or administrative services? Outsourcing these to private providers would still push up costs overall; perhaps more importantly, these privatised services would prioritise the rights of the corporations who own them over the patient in their care.

For a complete picture of the suffering this changed NHS would cause in the UK, consider alongside it the power TTIP would give corporations like tobacco companies to sue governments for health campaigns detrimental to their profits. In the most famous case, scary-sounding tobacco ‘giant’ Philip Morris sued Uruguay for its anti-smoking campaign. This is nothing short of a public health catastrophe.

And it’s not just Europe that will be affected by this deal. A lot depends on the wording of the final draft (currently due 2016) but in essence it would make it hard for non-TTIP countries to export processed goods. It could mean that a country like the Ivory Coast, which is the world’s largest cocoa producer, would only be able to export cocoa beans in their raw form. The country would begin to lose customers at the very moment international trade is helping to industrialise it.

This Saturday, thousands of campaigners will be taking part in a country-wide day of action, handing out leaflets and informing the public about this deal which will have such huge repercussions for this generation and the next. You can find out about what’s going on in your area here.

There’s no denying that TTIP is kind of boring, and the reading matter is dry as dust. But it’s important that we fight to know what’s happening as this deal murmurs on behind closed doors, because it is in the interests of some very powerful people to ensure that we do not.

TTIP’s secret courts

Aug 6th, 2015
by AdminCTA.
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https://fullfact.org/europe/ttip_secret_courts-46491#anchor

The impressively dry topic of investor-state dispute settlement (ISDS) is at the heart of the debate over a proposed treaty between the EU and US.

ISDS allows companies or individual investors to seek compensation from an independent arbitration panel if another signed-up country breaks an agreement to protect foreign investments. Almost all existing treaties involving guarantees to foreign investors use it.

Both sides want to include it in the Transatlantic Trade and Investment Partnership (TTIP, pronounced ‘T-tip’).

This is controversial. Campaigners complain about, among other things, a lack of transparency in ISDS proceedings.

Who decides cases, and where?

Using ISDS, a foreign investor that thinks it’s been treated in a way that an investment treaty doesn’t allow can ask an arbitration panel to decide the matter, rather than having to rely on the courts of the country they’re arguing with.

The arbitrators are usually commercial lawyers and academic experts in international law. Unlike a judge in a British court, they often double up: acting as an advocate for a government or company in one case, handing down decisions in another.

In general, each side will choose one arbitrator, with a third agreed upon or chosen by the organisation hosting the case.

The vast majority of cases are administered by the International Centre for Settlement of Investment Disputes (ICSID), part of the World Bank, or in line with rules published by the United Nations Commission on International Trade Law (UNCITRAL).

Are cases heard in secret?

Like other arbitration panels but unlike most courts, ICSID doesn’t make its hearings or decisions public unless the parties agree (although it does publish its legal reasoning and a list of cases).

UNCITRAL, the other major system, was so concerned at the lack of transparency that it changed its rules recently. They now say that decisions must be published, hearings should be public, and third parties (such as NGOs) can make arguments in the case. But this only applies to new investment treaties, and countries can agree to leave this part of the rules out.

Where the new rules don’t apply, “the very existence of a dispute can be kept secret if both parties so wish”. The EU has included the new UNCITRAL rules on transparency, with some modification, in a draft treaty with Canada that’s similar to TTIP.

How many are there?

While the rules on transparency make it hard to be exact about the volume of ISDS cases, campaigners often make claims about how many are taken by investors, and how frequently they succeed.

The most comprehensive breakdown of known cases is held by a United Nations agency, which tells us that they frequently revise and update their records.

At the time of writing, the database showed 608 cases launched between 1987 (when the first was recorded) and the end of 2014. The number has increased markedly in recent years, with 2013 seeing 59 new claims recorded—the highest number ever in a single year.

The increase in ISDS cases can, at least in part, be explained by the volumes of foreign direct investment over the same period, with the growth in ISDS cases and in outward investment following a similar trend.

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Where do they come from?

ISDS claims typically come from companies based in relatively rich countries; the respondents are more likely to be poorer nations. Investors from the EU and US account for three-quarters of all claims.

Although no ISDS cases between the US and an EU-15 country have been identified, there have been a small number between the US and newer EU member states.

Overall, the UN records that EU member states have had 131 known claims lodged against them (around one fifth of the worldwide total). The most frequent respondents have historically been Argentina, Venezuela, the Czech Republic and Egypt.

It’s been argued that the most targeted countries are also those which score poorly in terms of legal quality. For instance, Argentina and Venezuela are currently ranked 143rd and 144th (out of 144) in the World Economic Forum’s index of “Efficiency of legal framework in challenging regulations”.

That situation seems to be changing, though. In 2014, 40% of all new claims were brought against rich countries, and a quarter were between an EU investor and another EU country (11 out of 42).

What are the outcomes?

At the end of 2014, 405 known ISDS cases had reached a resolution. The state won in 36% of these, while most of the rest were either decided in favour of the investor (27%) or settled (26%). Settled cases will typically involve the state paying an amount it is satisfied with, but the exact terms aren’t published.

To date there have been 16 cases against EU countries in which the tribunal awarded compensation to the investor, while another 13 were settled.

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Only two ISDS challenges have ever been brought against the UK. The outcome of one is unknown; the other claim, against the UK and France over the Channel Tunnel, was partially successful. The companies involved were reportedly awarded compensation of around €24 million, although we don’t currently know how much, if any, of that the British government paid.

The debate about whether it should be included in TTIP is ongoing. The European Parliament has recommended that “the inclusion of any form of private arbitration courts in TTIP must be ruled out”.

The EU Trade Commissioner has expressed support for a permanent court to replace the ISDS procedure, and wants TTIP to allow for appeals and changes to how arbitrators are selected. This will have to be negotiated with the Americans over the next few months.

Update 07/08/2015

We originally said that the UK had lost neither of the ISDS cases taken against it, on the basis of a UN database. This was incorrect; in fact, a compensation award was made against the UK and France jointly in one case. We’ve updated our article, and our graph of results, to reflect this.

The Master Settlement Agreement: An Overview

Aug 1st, 2015
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US Chamber of Commerce is in Big Tobacco’s thrall

Jul 30th, 2015
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http://america.aljazeera.com/opinions/2015/7/us-chamber-of-commerce-is-in-big-tobaccos-thrall.html

A flurry of news articles, opinion pieces and blog posts have followed a June 30 New York Times investigation detailing how the U.S. Chamber of Commerce uses its clout to undermine public health measures that restrict tobacco use, sale and uptake, as mandated by the World Health Organization’s global tobacco treaty, the Framework Convention on Tobacco Control. While the coverage has highlighted the Chamber’s faculty for undermining tobacco control internationally, it has largely omitted the organization’s political interference in the United States on behalf of Big Tobacco.

One of the clearest ways the Chamber of Commerce has peddled the tobacco industry’s interests at home is through trade negotiations. The U.S. is on the verge of completing what would be the world’s largest trade and investment treaty, the Trans-Pacific Partnership (TPP). Many critics have opposed this deal, among the U.S. and 11 other Pacific Rim countries, over concerns about its possible effects on public health, the environment and workers’ rights.

This month trade ministers from the participating countries are heading to Hawaii to negotiate the last politically contentious issues in the treaty text, including policies that concern tobacco control. Over the years-long process, the Chamber has sent representatives to most TPP negotiations, advocating for Big Tobacco’s interests while enabling the tobacco industry to remain largely silent on the TPP.

In 2012, in response to an outcry from the public health community, the U.S. trade representative at the time, Ron Kirk, proposed a safe harbor provision, which would have provided stronger legal defenses against industry litigation fighting tobacco controls (though it would not have completely prevented such litigation). Since then, the Chamber has opposed any language singling out tobacco control measures for protection in the TPP. It has used every policy avenue available, from sending threatening letters to Barack Obama’s administration to aggressively pushing for private meetings with Kirk. In 2013 the U.S. caved to the Chamber’s pressure and abandoned its safe harbor approach to tobacco control, proposing instead weakened language that paid only lip service to public health. In response, dozens of members of Congress expressed to Obama their concern over the United States’ weakened tobacco proposal. In 2014 the National Association of Attorneys General sent a letter to the Obama administration calling for complete protection for tobacco-related public health measures in the TPP.

One of the key elements of the TPP — and the one most sought after by Big Tobacco — is an investor-state dispute settlement (ISDS) mechanism. ISDS allows corporations to sue governments in foreign trade courts over regulations the corporations deem harmful to future profits. These trade courts operate largely in secret, their decisions cannot be appealed, and their judges are often lawyers for giant multinational corporations.

Allowing Big Tobacco to sue governments for passing tobacco control measures would threaten not only tobacco regulations abroad but also those at federal, state and local levels in the U.S.
Philip Morris International, the world’s largest tobacco company, is already using ISDS mechanisms in two bilateral investment treaties to sue Australia and Uruguay for their lifesaving tobacco regulations, which require tobacco to be sold in packages with large graphic health warnings. Because Big Tobacco’s vast coffers dwarf those of many countries, the $8 million average litigation cost intimidates many countries from enacting lifesaving policies. For example, Uruguay said that it would have been forced to back down from Philip Morris’ lawsuit because of its prohibitive cost, had former New York City Mayor Michael Bloomberg not stepped forward with financial support. Though Big Tobacco has yet to win any of its cases against countries, its success is measured through nations’ delaying or backing down from advancing lifesaving tobacco regulations — as New Zealand and Togo have — for fear of facing similar suits from the tobacco industry.

By allowing Big Tobacco to sue governments for passing tobacco control measures, an ISDS mechanism in the TPP would threaten not only tobacco regulations abroad but also those at federal, state and local levels in the U.S. While the federal government can likely afford to defend its regulations, many state, city and county governments — which are responsible for the vast majority of tobacco control measures in the country — are understandably nervous about deciding between people’s health and a massive legal bill.

The global community is on course to curb the tobacco epidemic, in large part because of the World Health Organization’s global tobacco treaty. The U.S. Chamber of Commerce should be ashamed to do Big Tobacco’s dirty work, and governments, including ours, would be wise to reject its lobbying on any issue.

Now that the Chamber’s relationship with Big Tobacco has been exposed, the U.S. must look skeptically on the rest of the organization’s agenda. With the tobacco industry responsible for the loss of more than 6 million lives every year, there appear to be few, if any, ethical boundaries to the Chamber’s operations.

Chris Bostic is the deputy director for policy at Action on Smoking and Health.

John Stewart is the deputy campaigns director at Corporate Accountability International. Follow him on Twitter: @jms255.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera America’s editorial policy.

TTIP: a corporate lobbying paradise

Jul 14th, 2015
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Which businesses are pushing most for the proposed EU-US trade deal TTIP? Who’s influencing EU negotiators? Corporate Europe Observatory’s eight new info-graphics reveal the corporate lobby behind the TTIP talks.

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When preparing the mandate for the negotiations on TTIP, and in the first important months of the talks themselves (January 2012 to February 2014), the European Commission’s trade department (DG Trade) had 597 behind-closed-door meetings with lobbyists to discuss the negotiations, according to internal Commission files obtained via access to information requests. 528 of those meetings (88%) were with business lobbyists while only 53 (9%) were with public interest groups. So, for every meeting with a trade union or consumer group, there were 10 with companies and industry federations. The rest of the meetings were with other actors such as public institutions and academics. In total, DG Trade met 288 lobby groups in the early phase of the TTIP talks – 250 of them from the private sector (Check the full data and how we gathered it here).

There is evidence that DG Trade actively encouraged the involvement of corporate lobbyists, while keeping pesky trade unionists and other public interest groups at bay. For example, in autumn 2012, DG Trade chased pesticide lobby group ECPA to participate in the then-ongoing public consultation on TTIP. As “the European crop protection/pesticides industry, is one of the key sectors we would be looking at in terms of improving the framework for business,” a DG Trade emailed ECPA, their contribution “would be most welcome”. The official added: “A substantial contribution from your side, ideally sponsored by your US partner, would thus be vital to start identifying opportunities of closer cooperation and increased compatibility”. ECPA responded a few weeks later, together with its US sister organisation CropLife America, demanding “significant harmonisation” for pesticide residues in food. Trade unions, environmentalists, and consumer groups did not receive such special invites.

DG Trade’s responses to contributions to the public consultations also differed greatly. While trade unionists received a standard confirmation receipt, business lobbyists were invited to initiate follow-up meetings with negotiators. The Association of Automotive Suppliers (CLEPA), for example, got an email from DG Trade thanking “you for your readiness to work with us”, and offering a meeting, “to discuss about your proposal, ask for clarification and consider next steps”. Again, public interest groups did not receive this special treatment.

BusinessEurope and the US Chamber of Commerce, two of the most powerful pro-TTIP lobby groups, also had a follow-up meeting in November 2012, after responding to one of the Commission consultations on TTIP. On the table: their proposal for “regulatory cooperation”, a “potential game changer” which would allow business lobbyists to “co-write regulation”, as they put it. At the table: officials from DG Trade, but also DG Enterprise and the General Secretariat of the Commission. The atmosphere was clearly friendly. And the Commission stressed its desire to work closely with the two business lobbies to refine the proposal (renewed in another meeting with BusinessEurope in February 2013 where the Commission noted the importance of EU industry “submitting detailed ‘Transatlantic’ proposals to tackle regulatory barriers”1). A year later, the EU negotiation position for regulatory cooperation in TTIP was leaked. The demands of the US Chamber and BusinessEurope had been largely accommodated – one example showing that, while the number of lobby encounters does not have a simple correlation with levels of influence, it is an indicator, and these encounters do pay off.

Another example of the formidable alliance between EU negotiators and the corporate sector is the enthusiasm in the financial lobby community for the EU’s approach on financial regulation in TTIP. When the EU’s position on the issue was leaked in early 2014, Richard Normington, Senior Manager of the Policy and Public Affairs team at TheCityUK – a key British financial lobby group – applauded the Commission’s proposals, because it “reflected so closely the approach of TheCityUK that a bystander would have thought it came straight out of our brochure on TTIP”.

So, clearly, the close involvement of business lobbyists in drawing up the EU’s position for the TTIP talks is a result of the privileged access granted to them by DG Trade. Despite her PR to the contrary, this practice hasn’t changed significantly under the new Trade Commissioner Cecilia Malmström, as the next info-graphic shows.

1. European Commission (2013): Brief report – BusinessEurope US Network meeting, 21 February 2013, dated 22 February 2013. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.

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