The Politics of Trade and Tobacco Control

H. Jarman

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN: 9781137384157
• eBook ISBN: 9781137384164
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

This book uses the concept of political conflict to examine the effects of globalization on tobacco control policies. Analyzing a range of challenges to policies enacted by Australia, Canada, the United States, the European Union and Uruguay, the book examines how the global trading system has narrowed the scope of conflicts over tobacco control.

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Globalization, Tobacco Control, and Political Conflict

Abstract: Public health policies are increasingly the subject of global trade and investment disputes. What are the consequences of this trend for existing and future policies designed to protect the public interest? In this timely analysis, Jarman uses the concept of political conflict to examine the effects of globalization on tobacco control policies. Arguing that the scope of a political conflict –which voices can be heard in a particular debate, and which individuals or groups are excluded – has a significant effect on the outcome of that conflict, Jarman focuses on how globalization alters the scope of conflicts over tobacco control policies. She explains how this narrowed scope decreases the ability of the public, and public health advocates to present their views directly in trade and tobacco control debates.

Jarman, Holly. The Politics of Trade and Tobacco Control. Basingstoke: Palgrave Macmillan, 2015. DOI: 10.1057/9781137384164.0005.

There is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests.

– Framework Convention on Tobacco Control, Guidelines for Implementation of Art. 5.3

Tobacco use is a global problem that causes morbidity and mortality on a vast scale. According to the World Health Organization (WHO), tobacco is the ‘leading global cause of preventable death’ and kills approximately 6 million people per year, accounting for one in ten adult deaths worldwide. This includes more than 600,000 people per year who are not smokers but who die from the effects of secondhand smoke. WHO predicts that tobacco may kill as many as 1 billion people this century if current levels of usage are maintained (WHO 2013a).

Tobacco use is not just a problem in industrialized countries. Nearly 80 percent of the world’s 1 billion smokers now live in low- and middle-income countries, and global consumption of tobacco is still rising (WHO 2013a). Tobacco use is decreasing in some high- and middle-income countries but rapidly increasing in low-income countries as smokers in high- and middle-income states quit or die without being replaced by new smokers, and as tobacco firms increasingly target low-income markets (Giavino et al. 2012).

For every person who dies from tobacco use, there are many more who are living with the effects, which include cancer, heart disease, stroke, and lung diseases such as emphysema, bronchitis, and chronic airway obstruction (CDC 2010). Cigarette smoke contains more than 7,000 chemicals and compounds, hundreds of which are toxic and at least 69 of which cause cancer. Smoking increases the risk for adverse pregnancy outcomes such as ectopic pregnancy, miscarriage, and low birth weight. It increases the damage caused by diabetes and increases the risks of eye disease causing blindness, nerve damage, and poor circulation. Smoking is addictive, and particularly so for adolescents whose bodies are more vulnerable to nicotine (CDC 2010).

To tackle these problems, and the resulting demands placed upon health systems, governments around the world create policies to try to curb tobacco use, including adding tax to tobacco products, controlling tobacco advertising, prohibiting sales to minors, and prescribing certain elements of tobacco product packaging. But the formulation and implementation of these policies are complicated by existing constellations of powerful actors with a strong interest in the production, sale, marketing, and consumption of tobacco products. These actors’ preferences have little in common with those held by advocates of tobacco control. Political conflicts over tobacco control policies, clashes that occur when different groups within society disagree over core values, are consequently fierce and intractable. It is common for the industry to devote considerable resources to intense lobbying campaigns, for tobacco control policies to be the subject of high-profile public hearings, and for new tobacco regulations to be challenged in court as soon as they are introduced.

In the decades since the public first became aware of the dangers of tobacco products, the tobacco industry has globalized, with a small number of large multinational firms dominating manufacturing and production. Tobacco control conflicts have globalized, too; pro-tobacco actors have supplemented more traditional legal and political challenges with a series of high-profile trade and investment disputes. It has become impossible to understand political conflicts over tobacco control without also understanding the complex global trading system. Efforts to alter tobacco product packaging in Australia were challenged using World Trade Organization (WTO) agreements and a series of Bilateral Trade Agreements (BITs). A US ban on certain flavors of cigarettes was examined in the WTO and found to be inconsistent. Uruguay faced a challenge to its attempt to prevent misleading tobacco product packaging through a BIT between Uruguay and Switzerland. Tobacco firms have also used the threat of these disputes to exert a chilling effect on policies considering new tobacco control regulations, including Canada, New Zealand, the European Union (EU), and the United Kingdom.

These disputes, and the industry tactics that invoke them, concern public health advocates, who view them as undemocratic, secretive, costly to defend against, and a threat to public health. Understanding why these disputes were initiated and their likely effects is equally important for scholars of politics and the public policy process, with trade challenges to tobacco control regulations illustrating some broad, fundamental changes in how public policies are made.

This book focuses on the ways in which tobacco firms and their allies use trade policy to challenge existing tobacco control regulations and prevent the creation of new tobacco control policies. How and why have pro-tobacco actors leveraged trade agreements to undermine tobacco control policies? And what does this use of trade and investment agreements, and the dispute settlement mechanisms that accompany them, tell us about contemporary public policymaking?

I argue that the use of trade policy to challenge tobacco control regulations is symptomatic of a fundamental, global change in the way we make policy. Trade and investment disputes over tobacco control are cases of the progressive legalization of political decision making in evidence in countries throughout the world and at the international level (Hirschl 2009, Stone Sweet 2000). This steady legalization has changed the scope of political conflicts in public health, narrowing who can participate in them.

In tobacco control, the consequences of trade disputes are real, yet often obscured by the degree of secrecy in the global trading system. Trade and investment institutions do not strike down public health laws. But they do help to form, propagate, normalize, and enforce certain ideas about which policies are legitimate ways to protect the public interest and how scientific evidence must be marshaled to support a certain course of action. Many trade and investment institutions also offer ways for firms to challenge public policies outside of domestic settings, under lower levels of public scrutiny, accountability, and access than a national court might require. These factors combined narrow the scope of these political conflicts, with consequences for future policymaking – by shutting out dissenting voices, firms increase their ability to put pressure on governments. As classic political science theories show, the will of politicians to act (or fail to act) is strongly shaped by the scope of the conflict, in other words, which actors are able to have their views represented in the system, and which voices are excluded (Schattschneider 1975, Kingdon 2002, Galbraith 1993, Brown 2002, Baumgartner and Jones 2010).

Legalization has occurred in a couple of different ways, including increased regulatory review by bureaucratic agencies and increased judicial review both at and above the national level. Vitally, trade and tobacco control disputes are not always, or always entirely, about trade: the pattern of countries involved in trade and tobacco disputes does not correlate well with the pattern of trade in tobacco products or even the pattern of tobacco production. Rather, these are political conflicts about norms, about how states should regulate, and how ‘legitimate’ public policies, viewed as those acceptable to all parties, should be formed and implemented. This book examines what happens when these questions are debated under the influence of norms and procedures designed to ensure free commerce.

Conflicts over trade and tobacco control take place in a variety of arenas, discussed throughout the book. These include the invocation of trade law in domestic political conflicts (Chapter 2), the examination of tobacco control policies by international organizations such as the WTO (Chapter 3), international investor-state dispute resolution (Chapter 4), and debates over the future content of trade agreements (Chapter 5). Despite the distribution of conflicts across these distinct arenas, they retain many common features, and, ultimately, this volume aims to illustrate ways in which tobacco control policies can be made more ‘trade-proof’ (Chapter 6).

Before we can examine each of these arenas in detail, it is important to paint a more general picture of tobacco control politics globally. The next sections in this chapter characterize the challenges of regulating tobacco products, assessing the global trends that are changing the scope of conflict in tobacco control policy: the increase in cross-border trade and capital flows, the global diffusion of forums that conduct regulatory review, and the formalization of the power of capital in international legal agreements. The chapter concludes with a discussion of the modern characteristics of tobacco control policymaking: the framing of public health policies as exceptions to market rules and lobbying strategies which take advantage of multiple national and international legal forums.

Controlling tobacco products

Tobacco products can best be described as legacy products. They are freely available for legal purchase in markets around the world. But this availability is largely due to the history of tobacco as a traded commodity rather than any explicit legal choices made by governments.

Much of our relationship with tobacco, as a commodity and then as a branded product, pre-dates the idea of state as the guarantor of the public’s welfare. Humans have a very long history of using tobacco, starting in the Americas in the first century BC and spreading to Europe and other continents from the mid-1500s onwards as a result of international trade. Although the health effects of smoking tobacco were noted by several historical observers, it was not until the mid-20th century that a scientific consensus began to emerge around the damaging effects of smoking, decades after the invention of the modern, mass-market cigarette in 1913 (WHO 2002, Cairney et al. 2012, chapter 3).

Mass production and large-scale trade in branded tobacco products thus pre-date the 20th century expansion of state responsibilities to include a wide range of health and social programs. Consequently, there exists a tension between the ‘legacy’ status of tobacco products and the responsibilities of modern states to protect individual and collective health.

To illustrate this tension, imagine a hypothetical situation in which a cigarette is a brand new product but where we are fully aware of the harmful effects of tobacco. Today, that new product would have to be licensed for sale in different markets by government agencies and proven safe for use. Given the damaging effects of tobacco on health, it is likely that most countries would not allow these new products to be sold and would quickly move to ban them.

Tobacco control policies, however, are formulated and implemented in a world where tobacco products are already available for purchase, where smokers are already addicted to these products, where jobs depend on the tobacco industry, and where tobacco manufacturers, retailers, and growers who derive revenue from tobacco products form effective lobbies. Successful tobacco control policies must be sophisticated enough to consider these aspects.

Despite these inherent difficulties, the frequency and intensity with which states adopt and implement tobacco control policies has increased since the 1990s. With pressure on government budgets, rising costs of healthcare in almost all countries, and tobacco taxes forming an attractive revenue source, tobacco control policies are proving popular among governments. In the ten years since the adoption of the Framework Convention on Tobacco Control (FCTC) in 2003, an international agreement that commits signatory states to moving forward a set of tobacco control policies, the number of people covered by at least one tobacco control measure considered effective by the WHO has increased from 1 billion to 2.3 billion (WHO 2013b: 11). Given that the supply chains for tobacco products are truly global, involving almost every country in the world, the international consensus in support of tobacco control represented by the FCTC is very important.

The WHO uses the acronym MPOWER to highlight what public health researchers consider to be the most effective tobacco control policy solutions. States are advised to

Monitor tobacco use and prevention

Protect people from tobacco smoke

Offer help to quit tobacco use

Warn about the dangers of tobacco

Enforce bans on tobacco advertising, promotion and sponsorship, and

Raise taxes on tobacco. (WHO 2008: 23)

Recommended policy interventions, according to the MPOWER model, therefore include collecting key statistics on tobacco use, banning smoking in certain areas such as workplaces, public transport, and bars and restaurants, providing accessible smoking cessation services such as government-funded quitlines or free nicotine replacement therapies, conducting public education campaigns, mandating the display of warning labels and images on packaging that communicate the harmful effects of smoking, bans on tobacco advertising and tobacco company sponsorship of sports and cultural events, and higher levels of tobacco taxation.

Some of these interventions are currently more controversial than others. As the body of evidence regarding the harmful effects of tobacco has grown, the arguments made by tobacco companies that their products are safe and non-addictive have become more and more implausible. Over time, firms have been forced to dial back these claims, and few companies now publicly oppose attempts to monitor smoking or help smokers to quit.

Although false industry claims about the health risks of smoking have largely been discredited, there are many more economic claims made by the industry that are still the subject of political debate. The highest profile conflicts over tobacco control today are perhaps those where the industry claims economic rights or freedoms: conflicts over warning labels, advertising displays, and packaging. Because tobacco products are legacy products, distributed widely through global supply chains, there are many ways in which tobacco firms can contest these claims. Tobacco control has become a problem not just of national politics, but also of global governance.

In a series of high-profile cases, multinational tobacco companies have leveraged international trade and investment laws to challenge tobacco control policies. Key policy instruments designed to limit the availability of tobacco products and their appeal to new and existing smokers have been challenged, including laws requiring tobacco products to be sold in ‘plain packaging’ (standardized packaging designed to be unappealing to smokers and minimize the appeal of brands), regulations restricting advertising displays, bans on flavored cigarettes that appeal to children, and limits on the use of misleading descriptions such as ‘mild’, ‘light’, or ‘low tar’. A wide range of countries, including Australia, Uruguay, Norway, the Ukraine, Honduras, and the United States, have been drawn into these cases. Many more states are watching from the sidelines, anticipating the effect on their own existing and planned public health policies. The world is watching these cases, and understanding how they came about and what they mean for the future of public health is very important.

Economic and political globalization have significant implications for attempts by governments to control the sale and use of tobacco products. Globalization has altered the scope of political conflicts over tobacco control policies by increasing the number of legal forums available to companies wishing to challenge tobacco control regulations, by decreasing the ability of the public, and public health advocates, to present their views directly, and by framing tobacco control debates around economic principles rather than pub...

Table of contents

• Cover
• Title
• 1  Globalization, Tobacco Control, and Political Conflict
• 2  Trade Threats in Domestic Tobacco Control Debates
• 3  Tobacco at the World Trade Organization
• 4  Investors versus States
• 5  Changing the Rules of Trade and Investment
• Conclusion: Trade-Proofing Tobacco Control
• Bibliography
• Index