Recap: "The Future of Global Tobacco Control: Current Constitutional and Treaty-Based Challenges"
A conference hosted by the American Journal of Law & Medicine
Many countries have enacted dramatic tobacco control legislation in the past few years, but the industry is ﬁghting back. Battlegrounds include national constitutional laws, bilateral investment treaties, the WTO TRIPS Agreement and domestic IP laws. Recent examples abound, from plain-packaging legislation in Australia to the World Trade Organization’s ruling against the U.S. ban on clove cigarettes.
The nuanced geographic and legal contexts complicate global regulatory control, which plays an important role in advancing global public health in the face of trade-related objections. What are the current legal challenges to global tobacco control regulations, and what additional obstacles lay ahead?
Public health measures are being challenged with an ever-growing array of laws, but common themes emerge across the globe. “The Future of Global Tobacco Control,” a symposium hosted by Boston University School of Law’s American Journal of Law & Medicine on January 25, 2013, examined the common denominators faced by several countries with aggressive tobacco control legislation. Special attention was given to cigarette packaging litigation in the U.S. and Australia.
Panel 1: Domestic Legislation and Bilateral Agreements
- Jonathan Liberman (presented by Tania Voon): Plainly constitutional: The Upholding of Plain Tobacco Packaging by the High Court of Australia
- Jane Kelsey: The Trans-Pacific Partnership Agreement – A Gold-Plated Gift to the Global Tobacco Industry?
- Moderated by Prof. Alexandra Roberts
Tania Voon presented Jonathan Liberman’s paper concerning the ruling by the High Court of Australia on the plain tobacco-packing regime introduced by the Government of Australia. In December 2012, all tobacco packages in Australia were standardized to be a dark brown color with no promotional text or brand imagery. The paper explored the themes and analyzed the High Court’s decision in favor of the Australian government.
Jane Kelsey questioned the benefits of the Trans-Pacific Partnership Agreement to the global tobacco industry. She also used the lens of Australia’s plain-packaging policy to debate how free trade affects the tobacco industry by allowing for more opportunities of obstruction and diversion of resources by the tobacco industry, affecting tobacco control policy.
Panel 2: Multilateral Trade Agreements
- Benn McGrady & Alexandra Jones: Tobacco Control and Beyond: The Broader Implications of Trade and Investment Challenges for Tobacco Control and NCDs
- Robert Stumberg: Syntax for Safeguards: Options to protect tobacco control under the TPPA
- Tania Voon: Flexibilities in WTO Law to Support Tobacco Control Regulation
- Dr. Julien Chaisse: Investment or Health? Can Exception Clauses Play a Role In Balancing Foreign Investment Protection and Domestic Tobacco Control?
- Moderated by Prof. Wendy Mariner
Benn McGrady and Alexandra Jones focused on U.S. – Clove Cigarettes and the implications of the decision for tobacco control, stating that it could have consequences for the rules of domestic regulatory autonomy. The World Trade Organization stated the U.S.’s ban on the sale of clove-flavored cigarettes was unfair to Indonesia, who makes the clove-flavored cigarettes, as the policy favored menthol cigarettes made in the U.S.
Robert Stumberg spoke about the growth of smoking in Asian markets and how this affects and limits U.S. trade policy. Stumberg also looked at the Trans-Pacific Partnership Agreement, noting how it threatens WHO treaties such as the Framework Convention on Tobacco Control by expanding access or protecting the tobacco industry.
Tania Voon discussed how U.S. – Clove Cigarettes, along with Australia’s plain tobacco packaging standardization, might cause governments to fear that WTO prevents tobacco control measures. She argued that the WTO agreements regarding tobacco have enough flexibility to work with these objectives. She concluded that tobacco control measures that are supported by strong evidence in helping health objectives are probable to withstand a WTO challenge.
Julien Chaisse focused on the General Agreement on Tariffs and Trade’s (GATT) Article XX that provides greater flexibility in tobacco control. Chaisse argues that GATT allows for deviations from other rules such as the principle of national treatment and quantitative restrictions, balancing free trade agreements and health goals.
Panel 3: First Amendment Barriers
- Samantha Graff & Ted Mermin: The First Amendment and Public Health, At Odds
- Micah Berman: The First Amendment as a (Possible) Barrier to Importing Tobacco Control Measures from Abroad
- Scott Burris & Evan Anderson: Lobbying Restrictions and Public Health Speech
- Moderated by Prof. Leonard Glantz
Samantha Graff and Ted Mermin spoke about the problems with the Supreme Court’s approach to protecting commercial speech, highlighting those most important to public health—including assuming humans are rational economic actors, understanding children are susceptible to advertising, and the breadth of the commercial speech doctrine. They also warned how the industry has used the First Amendment to block regulation on commercial speech.
Micah Berman looked at the First Amendment as a barrier to tobacco control measures such as placing graphic health warnings on tobacco packages. Berman looked at a ruling from the District Court in 2011, comparing graphic warnings on packages in other countries, which stated those countries do not have comparable First Amendment protections. Berman argued that throwing out experiences in other countries eliminates a pertinent body of evidence and that most other countries have some form of constitutional protection to freedom of speech.
Scott Burris and Evan Anderson discussed the change in law in areas of expression by industry to exert political influence. For example they mentioned campaigns by industry to reduce action by public health groups on products that are detrimental to health outcomes. They used the lens of Citizens United, which suggests that speech is protected, not the speakers, and reducing deference to Congress when evaluating speech-restrictive laws.
Panel 4: Alternative Legal and Policy Responses
- Lara Khoury: The Use of Private Law as a Regulatory Tool in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience
- Mark Levin: Tobacco Control Lessons From the Higgs Boson: Tentatively Observing a Hidden Field Behind Changing Tobacco Control Norms in Japan
- Matthew Allen: Confronting the Vector of Tobacco-Related Disease
- Richard Daynard: Where Are We Going: Tobacco Control
- Moderated by Prof. George Annas
Lara Khoury looked at Canada’s handling of tobacco litigation and the use of lawsuits to control health risks of smoking. She commented on lawsuits brought against Canadian cigarette manufacturers and reflected on how the courts place responsibilities for risk assumption on smokers.
Mark Levin spoke about the control of the tobacco industry in Japan, specifically the idea that there is a change in norms such as consumption and prevelance despite the fact that political allies are preventing change in the formal legislative policy. Levin noted that policy change is not the end but a vehicle to achieve a change in norms and that hidden forces such as information, civic discourse and economic forces can help bring about change in norms as well.
Matthew Allen discussed the tobacco industry’s interference in countries and the imperative to remove such interference. He spoke about the tools, such as policies developed by the International Union Against Tuberculosis and Lung Disease and banning government partnership with the tobacco industry, to confront the tobacco industry. Allen also spoke about the responses to such efforts by the tobacco industry.
Richard Daynard focused on “endgame” strategies to reduce smoking rates in American adults to less than 10%. (Currently, about 19% of adults smoke.) Daynard remarked how public opinion supports banning cigarettes or taking out their addictive properties, yet policy does not reflect that ideal.
Thank you to all the participants and organizers for a highly successful conference.