It’s been ten years since the FDA was given the mandate from Congress to fully regulate the tobacco industry and tasked with the critical responsibility of protecting the health of our nation. And still, the FDA has not fulfilled its mission to reduce the deadly toll of tobacco use.
Ruling Extinguishes Latest Industry Effort to Undermine Tobacco Control
The tobacco industry has long outspent public health advocates at staggering rates to undermine tobacco control here in the United States and around the globe. But the seemingly endless tobacco industry bank accounts aren't able to beat back strong public health policy the way they have in the past. Public health is prevailing with greater frequency in spite of a relentless industry foe.
The latest example of this David versus Goliath outcome will directly benefit the citizens of Uruguay, and have far reaching implications for other countries considering similar public health measures.
In a decision late last week, an arbitration tribunal of the World Bank ruled Uruguay can require graphic warning labels covering 80 percent of the front and back of cigarette packs. The tribunal also ruled Uruguay can limit cigarette pack design to prevent color schemes being used to deceive the public into thinking certain cigarettes are less dangerous than others based on pack color implicit claims that carry no scientific basis.
Phillip Morris International (PMI) initiated the dispute using a bilateral trade and investment treaty between Uruguay and Switzerland, where PMI is headquartered. PMI claimed these package restrictions resulted in $25 million in lost revenue.
Six years after the dispute was initiated, the arbitrators held that Uraguay's actions were a legitimate use of governmental powers to protect the public health and therefore the tobacco industry could not force Uruguay to pay the damages. In addition to losing the case, Philip Morris must reimburse Uruguay for $7 million of its legal expenses.
The outcome is a tremendous victory for public health and we're proud that Cliff Douglas, Vice President of Tobacco Control for ACS CAN's charitable nonprofit affiliate, the American Cancer Society, offered expert analysis on global activity by the industry to undermine tobacco control in a brief submitted for the tribunal's consideration. Reducing the tobacco burden and the resulting cancer burden around the world is a continued and high priority for the Society and ACS CAN.
The Uruguay victory follows a favorable ruling for Australia, winning a dispute filed in 2011 by Philip Morris Asia using an investment agreement between Hong Kong and Australia. The dispute claimed that Philip Morris was owed damages because Australia adopted a requirement that 75 percent of front and 90 percent of the back of cigarette packages contain graphic warning labels. Australia also banned tobacco industry use of colors, logos, symbols, or other images that may have the effect of advertising or promoting tobacco products. The Australia case was dismissed on procedural grounds but the defense in this dispute is reported to have cost $35 million.
While the victories are cause for celebration, the lengthy disputes have both direct economic costs for the countries involved and the chilling effect of dissuading other countries from engaging in lifesaving tobacco restrictions for fear of similar costly and protracted disputes by industry.
We have an unprecedented opportunity to prevent future disputes that take advantage of trade and investment agreements to undermine lifesaving tobacco control policies. The Trans-Pacific Partnership (TPP), a trade and investment agreement between the United States and 11 Pacific Rim countries, has an historic exception which would prevent tobacco industry use of the agreement to challenge tobacco control measures. The provision would enable countries to act to protect public health and reduce the disease and death caused by tobacco without facing the litigation nightmares that Uruguay and Australia faced.
It's time for Congress to take action. By approving the TPP, Congress has the historic opportunity to help save millions of lives rather than promoting the interests of the tobacco industry.
The world is turning a corner where public health wins and where the tobacco industry and its products are losing their status of being a business to be promoted around the globe. Uruguay and Australia had great days recently in beating back the challenges of the tobacco industry. The world is better for it and the TPP tobacco exception will help extend such public health victories to the countries that say, enough is enough.