Protecting the Autonomy of States to Enact Tobacco Control Measures Under Trade and Investment Agreements
(2014) Tobacco Control
8 Pages Posted: 14 Oct 2014 Last revised: 21 Apr 2015
Date Written: October 31, 2014
Since the adoption of the World Health Organization’s WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a twelve party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the United States (US) and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.
Keywords: Tobacco, Trade, Investment, Trans-Pacific Partnership, Transatlantic Trade and Investment Partnership, Public Health, Trade Agreements, Investment Agreements, Negotiation
JEL Classification: I18, K32, K33
Suggested Citation: Suggested Citation