The Framework Convention Alliance for Tobacco Control

Will Malaysia's tobacco 'carve out' be adopted in Pacific trade deal?

The Malaysian Government has proposed that tobacco be excluded, ('carved out') from the provisions of a massive trade and investment deal now being negotiated.

Malaysia's proposal must be supported to protect governments' ability to enact measures contained in the WHO Framework Convention on Tobacco Control (FCTC) and protect the public health of their people, says a brief from the South-East Asia Tobacco Control Alliance (SEATCA).

The Trans-Pacific Partnership Agreement (TPPA) is being negotiated among 12 countries bordering the Pacific. When completed, it will be the biggest regional trading bloc in the world, and other countries are expected to join.

During the 19th round of talks on the TPPA, Malaysia proposed that tobacco be excluded from the scope of the agreement.

This is important for a number of reasons, says the SEATCA brief:

  • The tobacco industry regularly uses trade and investment agreements to challenge government measures based on the WHO FCTC;
  • The legal costs to defend those measures drain government coffers;
  • The industry uses trade agreements to rally governments' support for challenges of tobacco control measures;
  • The industry lobbies for stronger rules that would protect its interests vis-à-vis tobacco.

Malaysia's proposal is superior to one from the United States that suggested adding an exception clause to the TPPA for tobacco control measures, according to SEATCA. "Analysts, medical associations, and public health advocates, have criticised this proposal as weak and recommended support for Malaysia's proposal to exclude tobacco completely from the trade agreement."

The outcome of TPPA negotiations will be extremely significant. First, the deal is being touted by the United States and other governments as the model free trade agreement for the 21st century. It is therefore likely to be the basis for future economic integration, including the Trans-Atlantic Trade and Investment Partnership (TTIP) between the US and the European Union.

Second, and more ominously, the TPPA includes what is called investor-state dispute settlement (ISDS) rights, allowing corporations to directly sue governments in international trade courts over legislation and regulations. These rights are similar to those allowing tobacco multinationals to sue Australia and Uruguay over packaging regulations.

According to SEATCA’s senior policy advisor, Dr. Mary Assunta, “Excluding tobacco from investment agreements will be a phenomenal change in how tobacco should be viewed – as a harmful product that kills its customers and should not be accorded the same privileges given to other products."

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