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.
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.