Safeguarding Tobacco Control Measures from the Tobacco Industryys Trade-Related Challenges Through Trade Treaty Design

Protecting noncommunicable disease prevention policy in trade and investment agreements

“…Analyses from the legal, public health and economic literature indicate that carefully drafting trade and investment agreements to explicitly articulate commitments to public health can help governments pursue public health objectives and create expectations among parties that health policy will be evidence-based, 23 , 30 thereby reconciling states’ trade and public health obligations. 9 In particular, careful drafting can provide explicit recognition that a state may need to impose trade barriers to protect and promote the human right to health.…”

“…Critical factors are evidence supporting the measure’s effectiveness and a determination that the measure does not unduly restrict trade (and that there are no viable alternatives that are less trade-distorting). 24 , 25 , 30 …”

“…Consequently, preambles can aid the interpretation of contentious provisions, even though these statements are not legally binding. 23 , 30 For example, the preamble to the 2018 Peru–Australia Free Trade Agreement recognizes the “right to regulate and… to set legislative and regulatory priorities… and protect legitimate public welfare objectives, such as public health….” 37 In addition, governments can enhance the effectiveness of such statements in preambles by ensuring they do not lead investors to expect that the public health regulatory environment will remain unchanged. 38 …”

“… 7 – 9 One strategy deployed to avoid or delay regulation has been to invoke legally-binding trade and investment agreements. 10 , 11 Recent high-profile disputes have drawn attention to the potential for these agreements to constrain governments’ efforts to prevent noncommunicable disease. For example, the tobacco company Philip Morris challenged innovative tobacco packaging legislation by the governments of Australia and Uruguay.…”

The Chilling Effect

“…Deborah Sy has provided a useful map of the options of full exclusions, partial exclusions, specific exceptions, and general exceptions. 138 The Trans-Pacific Partnership (TPP) created an ISDS exclusion in relation to tobacco control measures. 139 A number of other agreements seek to deal with the issue through general public health exceptions in ISDS.…”