The tobacco exception clause in the Trans-Pacific Partnership Agreement: A victory for public health?

On January 23, President Donald Trump signed the executive order withdrawing the United-States (U.S.) from the Trans-Pacific Partnership (TPP). This free-trade agreement would have included Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United-States, and Vietnam. Against all expectations, the U.S. repeal has not rung the death knell of this controversial free-trade treaty, negotiated over six years. Last November, the remaining 11 partners met in Da Nang, Vietnam. They agreed on the “core elements” of a new Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). During a series of meetings, ministers agreed to suspend negotiations on certain conflicting provisions and focus on consensual matters. This decision gave new life to the agreement. While several countries, such as Japan, New Zealand, and Australia are clearly showing their willingness to maintain the treaty without the U.S., Canada’s position remains more moderate. Nonetheless, it is undeniable that the Trump Administration’s “America first” political strategy is jeopardizing the international trade agreements system. This situation is reflected in the stalemate of the North American Free Trade Agreement (NAFTA) renegotiations. Therefore, the Trans-Pacific Partnership Agreement could be the keystone of the remaining 11 governments’ international trade strategy. This is especially true for Japan and Canada. Indeed, as now the first and second largest economies of the PTP11, these states are in a leading position. This situation places the Trans-Pacific Partnership back to the forefront of the international economic agenda.This article focuses on controversies concerning article 29.5 of chapter 9. Article 29.5 prevents tobacco companies from bringing lawsuits against governments’ tobacco control rules. This decision raises concerns on three matters. The first matter to consider is the tobacco epidemic. The second issue is the increasing number of complaints against the “investor-state dispute settlement” (ISDS) mechanism allowing foreign investors to receive compensation for commercial damages resulting from public health or environmental measures. This ISDS system allowance is considered as an infringement of state sovereignty. Claims filed by the powerful tobacco company—the Philip Morris International Group (PMI)—to many international arbitration tribunals to challenge government application of WHO Framework Convention on Tobacco Control (WHO FCTC) provisions are a meaningful example of this tendency. These litigations have sparked a widespread outcry. These issues led Malaysia to propose a carve-out on tobacco products in August 2013 at the TPP negotiating table. Civil society advocacy was crucial for the inclusion of this clause. Their involvement leads us to the third matter raised by a TPP tobacco carve-out: populations’ aspirations to adapt commercial trade agreements to societal stakes.This research sheds light on how the Trans-Pacific Partnership Agreement’s tobacco carve-out was adopted and whether this provision marks a precedence of public health issues over principles of international trade and investment law. To answer this question, particular attention is paid to the United States and the Philips Morris International Group’s influence peddling through negotiations.Conclusions highlighted two decisive points for understanding the adoption of the tobacco carve-out in the TPP. As a first consideration, civil society actions against tobacco turned this social matter into a key issue during the trade deal negotiations. The second point is related to the main role of this treaty. Seen as the new “gold standard of trade deals,” the TPP—mostly led by the United States’ vision—was created to regulate international trade standards for the rest of the twenty-first century. This is the reason why NGOs were very proactive during debates. It is also what has dissuaded the U.S. from accepting a total exclusion of tobacco products from the TPP. Considering the fact that tobacco is a key sector for this country, the risk of creating a “standard” that would penalize the tobacco industry in future agreements was too high. The addition of these two considerations led to a compromise: article 29.5.

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