Transatlantic Trade and Investment Partnership (TTIP)

Issues for Tobacco Control



Introduction

Tobacco products are unique: they cause chronic diseases for their active and passive consumers (cancer, cardio-vascular and respiratory diseases); they prematurely kill one in two loyal consumers (700 000 annual deaths in the European Union(1), 480 000 in the United States(2)); the cost of tobaccorelated diseases weighs considerably more than the tax revenues from tobacco products (in France, the annual tobacco tax revenues are 11 billion euros, tobacco-related health expenditure is 26 billion euros(3); productivity losses related to tobacco are far from negligible.

Faced with this public health scourge and despite intense lobbying by the tobacco industry, governments have reacted at the international (WHO Framework Convention on Tobacco Control – FCTC), European (Tobacco Products Directive – TPD) or national level by adopting tobacco control measures.

The tobacco industry is a highly concentrated economic player, with four multinationals (British American Tobacco, Imperial Tobacco, Japan Tobacco, Philip Morris International) dominating three quarters of the world market outside China(4). The global tobacco market is valued at near 570 billion euros(5). This very special industry uses all possible channels to keep its harmful business. Among these channels, trade or investment treaties are of particular interest to multinational tobacco companies. Among the draft treaties, they are particularly interested in the TTIP, which has the ambition to create a free-trade and free-investment zone between the United States (USA) and the European Union (EU). This ambition was recently reaffirmed by the European Council, which met on 20 and 21 October 2016, and “invites the Commission to continue the negotiations with the US authorities to be able to present an ambitious, balanced and comprehensive free trade agreement”(6).

Three central elements of the future TTIP, and more generally of new trade and investment agreements, are of potential concern for tobacco control and public health:

  • The regulatory pillar: In the name of regulatory coherence and living regulatory cooperation,
    there is a risk of weakening the right to regulate in the public interest, particularly in the
    area of health.
  • Investor-state dispute settlement (ISDS) or investment court system (ICS): In the name of investment protection, systems of divesting state courts are being put in place for the
    benefit of private international arbitral tribunals, a means of litigation favoured by the
    tobacco industry.
  • Market Access: By eliminating tariffs, without taking into account the specific nature of
    tobacco products, there is a risk of promoting accessibility to these harmful products.

Moreover, there is concern about the transparency of the negotiation process and the interference of tobacco industry. Recall the terms of Article 5.3 FCTC: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law”. But the United States is not a Party to the Convention and the European Ombudsman has heavily criticised the failure of the European Commission (except DG SANTE) to disclose proactively the contacts with tobacco lobbyists, especially in relation to the TTIP negotiations(7).

So TTIP is an issue for tobacco control and we must analyze this issue for a European Union based on treaties, including the Treaty on the Functioning of the European Union (TFEU), which contains a very ambitious article 168 on public health: “A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities”.

  1. Impact Assessment of the Tobacco Products Directive
  2. Tobacco Free Kids, Toll of Tobacco in the United States of America
  3. Pierre Kopp, Le coût social des drogues en France, Office Français des Drogues et de la Toxicomanie, Décembre 2015
  4. http://www.bat.com/ar/2011/business-review/global-market-overview/
  5. EPHA, Tobacco and public health in TTIP, June 2016
  6. European Council, European Council meeting (20 and 21 October 2016) – Conclusions

Submitted by: Andrea Glahn, 10 January 2017