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July 2nd, 2011:

Editorial: Hear the tobacco firms squeal

http://www.stuff.co.nz/dominion-post/comment/5222078/Editorial-Hear-the-tobacco-firms-squeal 02/07/2011
OPINION: A useful indicator of the effectiveness of anti-smoking measures is the volume of tobacco company squealing.
The more noise they make, the more they are feeling the pinch. On that basis, the Australian Government’s plan to force them to sell their products in plain, brand-less packaging is a roaring success.
Philip Morris, the manufacturer of Marlboro, Alpine and Long Beach cigarettes, has served notice of its intention to use an obscure clause in a little-known bilateral investment treaty with Hong Kong to sue the Australian Government for loss of business. It estimates the claim could amount to billions of dollars. Australian Prime Minister Julia Gillard has responded by saying she is not going to be intimidated by “big tobacco’s tactics”.
Good for her. The New Zealand Government should follow suit. As the Maori Affairs select committee reported last year: “Tobacco is an addictive and hazardous product which, if used as recommended by the manufacturer, results in the premature death of half of its long-term users.”
Other products such as alcohol and motor vehicles also cause widespread death and misery but only when misused. Tobacco, in contrast, cannot be used safely.
If the removal of tasteful colours and stylised brand names reduces the allure of cigarettes to customers, particularly the young, then they should be removed.
Every person deterred from smoking represents a potential life saved and a saving to the health system.
According to the Maori Affairs committee, which last year recommended sweeping new measures to make New Zealand smokefree by 2025, tobacco kills about 5000 people annually, and is the greatest preventable cause of death and illness in New Zealand.
Even Philip Morris concedes there is no such thing as a safe cigarette.
To quote from the website of its American division: “Philip Morris USA agrees with the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious disease in smokers.”
Faced with such an admission, governments have a responsibility to discourage an immoral trade.
Threats of legal action should not deter them. Investment treaties can be renegotiated. Tobacco’s victims cannot be restored to good health.
Governments should not allow themselves to be held to ransom by the manufacturers of products that do no good and immense harm.
On another level, Philip Morris’ legal threats serve as a warning to those involved in the negotiation of international trade and investment agreements. Keep a close eye on the fine print.
There is much to be gained from removing barriers to trade and investment, but the right to make decisions that are genuinely in the public interest should not be traded away.

http://www.stuff.co.nz/dominion-post/comment/5222078/Editorial-Hear-the-tobacco-firms-squeal 02/07/2011OPINION: A useful indicator of the effectiveness of anti-smoking measures is the volume of tobacco company squealing.The more noise they make, the more they are feeling the pinch. On that basis, the Australian Government’s plan to force them to sell their products in plain, brand-less packaging is a roaring success.Philip Morris, the manufacturer of Marlboro, Alpine and Long Beach cigarettes, has served notice of its intention to use an obscure clause in a little-known bilateral investment treaty with Hong Kong to sue the Australian Government for loss of business. It estimates the claim could amount to billions of dollars. Australian Prime Minister Julia Gillard has responded by saying she is not going to be intimidated by “big tobacco’s tactics”.Good for her. The New Zealand Government should follow suit. As the Maori Affairs select committee reported last year: “Tobacco is an addictive and hazardous product which, if used as recommended by the manufacturer, results in the premature death of half of its long-term users.”Other products such as alcohol and motor vehicles also cause widespread death and misery but only when misused. Tobacco, in contrast, cannot be used safely.If the removal of tasteful colours and stylised brand names reduces the allure of cigarettes to customers, particularly the young, then they should be removed.Every person deterred from smoking represents a potential life saved and a saving to the health system.According to the Maori Affairs committee, which last year recommended sweeping new measures to make New Zealand smokefree by 2025, tobacco kills about 5000 people annually, and is the greatest preventable cause of death and illness in New Zealand.Even Philip Morris concedes there is no such thing as a safe cigarette.To quote from the website of its American division: “Philip Morris USA agrees with the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious disease in smokers.”Faced with such an admission, governments have a responsibility to discourage an immoral trade.Threats of legal action should not deter them. Investment treaties can be renegotiated. Tobacco’s victims cannot be restored to good health.Governments should not allow themselves to be held to ransom by the manufacturers of products that do no good and immense harm.On another level, Philip Morris’ legal threats serve as a warning to those involved in the negotiation of international trade and investment agreements. Keep a close eye on the fine print.There is much to be gained from removing barriers to trade and investment, but the right to make decisions that are genuinely in the public interest should not be traded away.

Download PDF : Editorial

Worldwide news and comment

Jamaica: more tobacco, Despite FCTC

Going against trends in most of the rest of the world, especially among countries committed to implementing to the WHO’s Framework Convention on Tobacco Control (FCTC), Jamaica is increasing tobacco production. It is not just that the department of agriculture has decided to stimulate tobacco leaf growing, but recent events suggest a larger and more sinister trend. The most striking illustration of how little the Jamaican government seems to understand the tobacco problem and what the FCTC is all about is a notorious collaboration with Carreras Limited, local subsidiary of British American Tobacco (BAT), on a youth education programme.

When the government announced the proposed increase in leaf production, the Jamaica Coalition for Tobacco Control put out a press release pointing out that the move was in breach of the spirit of the FCTC, which Jamaica signed in 2003 and ratified in 2005. The press release included an open letter to Jamaica’s prime minister, addressing the government’s apparent disregard for the FCTC. Apart from the tobacco growing announcement and the education ministry’s collaboration with BAT on the youth education programme, Jamaica has still not initiated any significant implementation of the treaty. In addition, the coalition cited other examples of disturbing pro-tobacco signals coming from the government, such as the acceptance of direct financial support from BAT for repairing police vehicles.

The coalition, based at the country’s heart foundation, is part of the Caribbean tobacco control project, a four-country project (with Barbados, Guyana and Trinidad and Tobago) funded by the Bloomberg Global Initiative. It is an example of how competent non-government organisations are now at work in many areas where in the past, the industry often went unchallenged. And a challenge is obviously how BAT saw the coalition’s press release and letter. Within two days, its local corporate and regulatory affairs manager had written an article for the country’s leading daily newspaper, the Jamaica Gleaner, published below the supremely inappropriate and misleading headline, ‘Clearing the air on tobacco control.’

In addition to BAT’s predictable line on the expansion of tobacco production and the FCTC, the article reminded readers—as the company no doubt regularly reminds the government—of the company’s “almost 50-year involvement and support” for empowering people through education, civic and community life, arts, culture and the environment, and its “continued willingness to sit down with the government to discuss how the company can continue aligning its corporate social investments to areas of national priority.”

Following the publication of this large dose of classic tobacco-speak, the health coalition replied with what it diplomatically called a ‘clarification’ of key issues in the tobacco man’s article. In the meantime, however, the coalition’s open letter to the prime minister had been picked up by the US-based Corporate Accountability International (formerly known as Infact), one of whose major projects is tobacco control. It placed the letter on its website, asking supporters to sign a petition against increasing tobacco production, and to write to the Jamaican prime minister. More than 3000 people did just that, creating a volume of international pressure that evidently was neither unnoticed nor welcomed by the Jamaican administration.

Health advocates everywhere know that tobacco companies want to prevent the implementation of the FCTC, or if that proves impossible, to at least delay it for as long as possible, convincing evaluation, if it were needed, of the treaty’s potential. Has receipt of tobacco money, such as the police vehicle repair funds, been a significant factor in delaying action in some of the Caribbean countries? In a region with co-operation in many areas of government, why has legislation on smoking in public places been passed in Trinidad and Tobago, and Barbados, but not elsewhere? And why have none of the countries yet implemented the effective, comprehensive legislation covering all major aspects of tobacco control that the FCTC requires?

Read more : http://tobaccocontrol.bmj.com/content/20/4/253.full

International trade agreements: a threat to tobacco control policy

http://tobaccocontrol.bmj.com/content/14/suppl_2/ii19.full

Abstract

International covenants establish a role for governments in ensuring the conditions for human health and wellbeing, which has been recognised as a central human right. International trade agreements, conversely, prioritise the rights of corporations over health and human rights. International trade agreements are threatening existing tobacco control policies and restrict the possibility of implementing new controls. This situation is unrecognised by many tobacco control advocates in signatory nations, especially those in developing countries. Recent agreements on eliminating various trade restrictions, including those on tobacco, have expanded far beyond simply international movement of goods to include internal tobacco distribution regulations and intellectual property rules regulating advertising and labelling. Our analysis shows that to the extent trade agreements protect the tobacco industry, in itself a deadly enterprise, they erode human rights principles and contribute to ill health. The tobacco industry has used trade policy to undermine effective barriers to tobacco importation. Trade negotiations provide an unwarranted opportunity for the tobacco industry to assert its interests without public scrutiny. Trade agreements provide the industry with additional tools to obstruct control policies in both developed and developing countries and at every level. The health community should become involved in reversing these trends, and help promote additional measures to protect public health.

Read more : https://mail.google.com/mail/u/2/?ui=2&ik=9ed62dbd70&view=lg&msg=130e8e2a23e4339d

INTERNATIONAL TRADE AGREEMENTS AND TOBACCO CONTROL

http://www.takingontobacco.org/trade/factsheet.html

GLOBAL TRADING RULES AND THE TRADE AGREEMENT LANDSCAPE

The World Trade Organization: The World Trade Organization (WTO) is a global organization with more than 140 members, including all of the world’s significant economies other than Russia. The WTO administers more than a dozen trade agreements. These cover tariffs for industrial and agricultural products, and also a host of non-tariff issues, including plant and animal safety rules, “technical barriers to trade” — meaning various product-related regulations, rules and regulations covering services, government procurement, investment rules and intellectual property. WTO rules apply both to federal and subfederal governments (states, provinces, counties and cities).

Unlike many other international agreements, the WTO is backed up by a very strong enforcement mechanism. Countries that violate WTO rules face significant penalties in the form of trade sanctions.

Other Trade Agreements – Existing and Under Negotiation: Also on the trade system landscape are a series of bilateral and regional agreements, the most prominent of which is the North American Free Trade Agreement (NAFTA). These agreements cover most of the same substantive areas as the WTO, impose similar obligations on member countries and feature similar enforcement mechanisms.

In addition to NAFTA, the United States maintains free trade agreements with Israel, Jordan, Vietnam, Singapore and Chile, and is now negotiating agreements with Australia Morocco, the Central American countries, the Southern African Customs Union (South Africa, Namibia, Botswana, Lesotho, Swaziland) and the entirety of the Western Hemisphere except for Cuba (the Free Trade Area of the Americas, FTAA). Plans to commence negotiations with Thailand have just been announced, with more such announcements involving other countries expected soon.

The Chilling Effect: Trade agreements may stifle public health regulation both through enabling direct challenges to tobacco control rules, but also through the chilling effect. Countries routinely choose not to enact legislation of various kinds because of concern that proposed laws would conflict with their international trade obligations, even when those concerns are misplaced.

MARKET ACCESS, TARIFFS AND TOBACCO

What Trade Agreements Do: The historic and still core feature of trade agreements is a commitment by signatories to reduce tariffs on imported goods. Tariff reduction agreements typically include cigarettes and tobacco products.

Impact On Public Health and Tobacco Control: Opening domestic markets to tobacco product imports increases smoking rates and consumption. The market opening leads to enhanced price and product competition and intensified marketing efforts.

“Reductions in the barriers to tobacco-related trade will likely lead to greater competition in the markets for tobacco and tobacco products [and] reductions in the prices for tobacco products,” according to a World Bank report. “As a result, the death and disease from tobacco use will also increase.”

After the United States exerted trade pressure to open Asian tobacco markets in the 1980s, tobacco consumption rose 10 percent. In the single year after South Korea opened its market, smoking rates among teenage girls more than quintupled, from 1.6 percent to 8.7 percent.

INTELLECTUAL PROPERTY PROTECTIONS

What Trade Agreements Do: The WTO and most bilateral and regional trade agreements require member countries to provide strong protections for intellectual property — patents, copyright, trademark and trade secrets.

Impact On Public Health and Tobacco Control: In Canada, Brazil, Thailand and elsewhere, tobacco companies have argued that large health warnings, plain packaging rules and bans on the use of misleading descriptors (“light,” “mild” and “low”) violate their trademark rights under trade agreements. They have argued that ingredient disclosure rules violate their trade secret rights.

TECHNICAL BARRIERS TO TRADE

What Trade Agreements Do: Technical Barriers to Trade (TBT) Agreements establish international rules relating to how, under what circumstances, and with what restrictions countries can establish technical regulations concerning products or processes related to products. Technical regulations may cover such matters as health and safety, environmental and consumer regulations.

Under trade agreement rules, technical regulations must not be more trade restrictive than necessary to achieve a public health or other objective. Second, where international standards exist, or their adoption is imminent, countries must use them, unless they can meet very stringent tests.

Impact On Public Health and Tobacco Control: Philip Morris has argued that a ban on the use of the terms “mild” and “light” violates technical barriers to trade rules (on the grounds that there are less trade restrictive ways to stop consumers from being misled by the terms). Companies would almost certainly argue that any product content regulation violated TBT rules. They might also claim that smokefree air mandates violate TBT rules (on the grounds that ventilation is a less trade restrictive alternative, or that smokefree rules violate international standards).

SERVICES

What Trade Agreements Do: Service agreements require countries to permit foreign companies to provide services (non-technical definition: a commercially traded thing that you can drop on your foot is a good; the rest are services) on terms that are no different than for domestic firms.

Impact On Public Health and Tobacco Control: Tobacco companies may use such agreements, still mostly under negotiation, to challenge national advertising bans or restrictions, particularly restrictions that apply to certain forms of advertising but not others, or efforts to restrict distribution outlets for tobacco products, among other potential sources of challenge.


INVESTMENT PROTECTIONS

What Trade Agreements Do: NAFTA contains very strong investment protections (known as “Chapter 11″), and similar protections are being negotiated into new bilateral and regional agreements. These protections bar “expropriation,” or actions “tantamount” to expropriation, except for public purpose and with fair market value compensation. “Expropriation” in NAFTA terms is roughly equivalent to the U.S. constitutional concept of “takings,” and is inclusive of an extremely broad definition of regulatory takings. The investment protections also permit investors directly to bring suit against, and seek compensation from, governments that have infringed on their investment rights. (Other provisions of NAFTA and most trade agreements enable only countries to bring challenges against other countries.)

Impact On Public Health and Tobacco Control: NAFTA Chapter 11 has provided the basis for a number of eyebrow-raising cases. In the largest Chapter 11 suit yet brought against the United States, the Canadian corporation Methanex in 1999 sued the U.S. government for $970 million because of a California executive order phasing out the sale of MTBE, a gasoline additive, on the grounds that the California environmental policy limits the corporation’s ability to sell MTBE. This case is pending. In another pending case, the U.S.-based United Parcel Service (UPS) is pursuing a NAFTA Chapter 11 case against Canada for $100 million, arguing that the Canadian postal service’s involvement in the courier business infringes upon the profitability of UPS operations in Canada. UPS claims that by integrating the delivery of letter, package and courier services, Canada Post has cross-subsidized its courier business in breach of NAFTA rules.

Applied in the context of the tobacco industry, investment protections are obviously quite worrisome. They give Philip Morris, BAT and the rest of the industry direct standing to invoke trade agreements to challenge national law, overcoming the political reluctance of most governments to advocate aggressively on behalf of cigarette companies.

The substantive provisions of the agreements provide considerable fodder for the industry. For example, each of the potential intellectual property claims of the industry — on warning labels, bans on “light,” “mild” and “low,” on ingredient disclosure — can be recast as an expropriation. (Philip Morris has already made such an argument in Canada, though it has not filed suit.) Distribution networks favoring national producers, especially state-affiliated companies that are not available to foreign companies may be characterized as violations of national treatment obligations.

HEALTH EXCEPTIONS AND THE FRAMEWORK CONVENTION

The trade agreements contain only very narrow exceptions for public health regulations that conflict with the agreements’ overarching rules. Such public health measures must be “necessary.” A regulation qualifies as necessary only if there is no less trade restrictive means to accomplish a desired end, even if the alternative may not be politically or financially feasible.

An important 1990 case at the predecessor to the WTO interpreted the term in a dispute involving Thai tobacco control measures under challenge from the United States. Ignoring recommendations from the World Health Organization that were filed in the case, the decision required Thailand to open their market to U.S. cigarettes. The decision did say that Thailand could maintain its ban on marketing.

The health exception in the Technical Barriers to Trade agreements are even narrower than the general exception. And there are effectively no public health exceptions in the intellectual property and investment agreements.

The Framework Convention on Tobacco Control will provide more latitude to countries than they would have in its absence, but it does not provide an absolute guarantee for countries, and certainly offers no safe haven in areas where its recommendations are not precise.

CONCLUSION: EXCLUDING TOBACCO FROM TRADE AGREEMENTS

There is a simple solution to the problems posed by trade agreements to tobacco control: tobacco products should be excluded from their purview.

There is no legitimate purpose for inclusion of tobacco products in trade agreements, which are designed to facilitate trade and remove tariff and nontariff barriers to commercial transactions — an inappropriate goal for tobacco products, consumption of which is harmful.

If tobacco products were excluded, countries would not need to ensure their rules were consistent with trade rules. Governments would not be chilled by threats trade challenges.

There is precedent for excluding certain products from trade agreements. For example, military products are not covered by the WTO agreements. The WTO’s intellectual property rules exempt surgical methods. And the U.S.-Vietnam free trade agreement excludes tobacco from its tariff regulation and reduction scheme.

There is no technical difficulty in exempting tobacco from trade agreements — a simple declaration that the agreement does not apply to tobacco products, in words no more complicated than those, would be sufficient.

All that is required is the political will.

While other countries could lead by example, it is the United States that establishes the framework for global trade policy. This is particularly true in the case of bilateral and regional agreements, since the United States is initiator and party to more of these agreements than any other country.

If the U.S. government adopts a position of excluding tobacco from trade agreements, such a policy will quickly become the global norm. There are few trading partners who would object, and a majority who would warmly welcome such a move by the United States.

Most countries, however, do not have a good record of prioritizing health concerns in trade negotiations. Countries that support excluding tobacco are not likely to advocate such a position if it will cost them other trade benefits. And even those countries willing to advance such a position are unlikely to defend it strongly if doing so will cost them other advantages.

The key to movement on this issue therefore rests with the U.S. public health community, which is uniquely positioned to defend and advance health principles in the U.S. political arena.