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EU has duty to protect public health from tobacco

Implementing the WHO’s framework convention on tobacco control is key to tackling the industry’s repeated legal challenges, says Nessa Childers.

As we recognise the European week against cancer, we are also marking the world health organisation’s (WHO) world no tobacco day 2015.

Because of the very much normalised existence it still enjoys in our societies, it is important to recall the WHO’s shockingly succinct description of tobacco as the only legal consumer product that kills when used exactly as intended by the manufacturer.

Past and present experience with the lobbying and litigious strategies deployed by the tobacco industry demonstrates the extreme importance of robust policymaking in the interests of public health.

Following the Irish government’s decision to introduce plain packaging legislation, which was passed this year in the face of big tobacco’s legal threats, Japan Tobacco Ireland has issued proceedings in the Irish commercial court to block the new law on the shaky grounds that it infringes the EU directive on the harmonisation of labelling and packaging.

While JTI and other major tobacco companies were unsuccessful in their prompt challenge to Australia’s 2011 pioneering plain packaging legislation in that jurisdiction’s high court, on the spurious grounds that it infringed their intellectual property rights, one of the challenging parties, Philip Morris, decided to wage battle on another front.

They took to shifting some assets around, seemingly for the express purpose of claiming grounds to challenge Australia, under an obscure investor-state arbitration clause in a trade agreement between Australia and Hong Kong.

This international arbitration challenge was launched in 2011, in parallel with the high court proceedings which proved unsuccessful under Australian law, and has locked Australia in a complex, protracted and expensive legal conflict with the tobacco company.

The current legal challenge brought by big tobacco to the Irish courts is being fought by the state on behalf of the Irish citizens in a proper court of law. The UK is likely to follow suit, as they decided to emulate the Australian and the Irish examples.

The ongoing trade negotiations between the EU and the US authorities may still result in a trade agreement with an investor-state dispute settlement clause, despite increasing public awareness and opposition to such private, parallel and pricy arbitration courts.

If the EU-US trade agreement is passed with such an arbitration clause, a new legal front is bound to open in a private arbitration forum, an opaque netherworld where the best paid legal suits stand an even better chance of ripping off the taxpayer as punishment for public interest policy that can cost big businesses big money.

The tobacco industry has demonstrated ample ability and willingness to aggressively make use of every conceivable instrument in the legal toolbox, together with the lobby firepower we witnessed during our work on the tobacco products directive in the previous legislature.

Their tactics raise disturbing questions, some of which remain unanswered and have taken on a legal life of their own in the EU court.

This why, in parliament’s environment, public health and food safety committee’s opinion for the upcoming report on transparency and integrity in the EU, I will be calling on the institutions to fully implement the WHO framework convention on tobacco control, so as to better protect public health policy from the vested interests of the tobacco industry.

About the author
Nessa Childers (S&D, IE) is a member of MEPs against cancer

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