The Obama Administration’s Proposal on Tobacco Regulation in the Trans-Pacific Partnership (Part 2)

In part 1 of our 2 part series about the Trans-Pacific Partnership (TPP) we highlighted how Obama’s new tobacco proposal for the Trans Pacific Partnership agreement has created turmoil. Instead of creating a “safe harbor” as originally planned to allow strong anti-smoking laws to remain in place, Obama’s new tobacco clause will allow for more corporate intervention.

What does this look like? Well, we are already seeing this being done in Australia. More trade agreements are including settlement clauses allowing investors to directly make claims against governments. According to this document, these “investor-state dispute settlements” have a “pro-business decision-making culture cultivated by arbitral rules and working practices.” These practices will allow for arbitral adjucators, who are normally lawyers without any public health knowledge, to bring claims against governments. This of course, leaves room for one to believe that these adjucators will have a bias toward tobacco corporations. Also, because disputes can be made directly to governments, no money and time needs to be spent on lobbying. Right now, Phillip Morris Asia (Hong Kong) is using this to their advantage to legally fight Australia’s plain packaging laws.

Another fear that stems from possible tobacco industry intervention through the TPP, are the challenges that will be brought against developing countries in this trade agreement. Some countries do not have the experience fighting for anti-smoking regulations or have the monetary funds necessary to go against Big Tobacco. This is a huge public health issue because we are seeing more and more smaller developing countries losing the lives of many of their citizens to tobacco related illnesses. Malaysia (a country in TPP talks) now has 10,000 people die from tobacco each year.

The safe harbor, initially proposed by Obama, would have made it so none of these challenges against nations’ anti-tobacco laws by the tobacco industry would have been possible, but that has been scrapped. On the bright side, the chief negotiator of Malaysia has proposed a solution to remove tobacco products from being covered by the TPP. This would eliminate the tobacco industry’s ground to challenge any measures.

In my opinion, it is important for the United States to take a strong stance against tobacco. Also, the language used in the trade agreement needs to make certain that it will not open up challenges against tobacco regulations in the countries involved. Therefore, following Malaysia’s chief negotiator’s proposal is ideal.

We will soon see what the outcome will be as countries in the TPP agreement met in Bali to try to reach an agreement, but Obama did not attend because he had to deal with domestic issues brought by the government shut down. Due to this issue, and many others, it seems that the TPP will not meet their end of the year deadline.


-Stacy Song


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