Press Release – Professor Jane Kelsey

Groser must support Malaysias tobacco carveout at TPPA Ministerial on 22 Feb Trade Minister Tim Groser must support Malaysias proposals to carve tobacco out of the Trans-Pacific Partnership Agreement if the National government wants to …
Groser must support Malaysia’s tobacco carveout at TPPA Ministerial on 22 Feb

‘Trade Minister Tim Groser must support Malaysia’s proposals to carve tobacco out of the Trans-Pacific Partnership Agreement if the National government wants to be taken seriously as supporting the plain packaging tobacco law introduced today’, according to Auckland University Professor Jane Kelsey, who has written extensively on how free trade and investment treaties impede smokefree policies.

‘It must also reject the investor-state dispute settlement proposed in the deal’.

The tobacco industry has already threatened to follow the same path they did in Australia. Philip Morris has sued the Australian government directly under an investment treaty and the tobacco industry has backed a World Trade Organisation (WTO) dispute brought by member states against Australia.

New Zealand is already exposed to such claims at the WTO and through a small number of free trade and investment treaties. The proposed TPPA would provide much greater opportunities to the notoriously litigious tobacco firms.

Treasury has reportedly said an investment dispute over plain packaging would cost $3 to $6 million. Presumably, that is only the legal costs of arbitration in dubious offshore investment tribunals.

Professor Kelsey predicted that New Zealand would be looking at paying tobacco companies tens or even hundreds of millions of dollars if the plain packaging law was found to breach the pro-corporate rules in these agreements. ‘That would have to come from somewhere, presumably the health budget’, she said.

The threat of such litigation is intended to scare the government off pursuing the laws or implementing them even if they are passed.

The ministers from the TPPA countries will meet in Singapore from 22 to 25 February.

Malaysia has proposed a carveout to protect all tobacco-related health measures from the TPPA rules.

That would protect New Zealand from US investors suing the government for introducing plain packaging and similar laws under special investor protections written into these agreements.

The US has proposed a self-serving exception that would only protect certain US rules and would not affect the right of tobacco companies to sue.

New Zealand has not committed itself to either proposal. It is also supporting a weak version of a public health exception for the investment chapter, which would not apply to these special investor protections. The US had opposed any such exception for investment.

The only way for New Zealand to protect the smokefree 2025 policy from the TPPA is to support Malaysia’s position. To protect public health policy more generally, it must reject the investor-state dispute settlement process altogether – and preferably the entire TPPA.
Groser must support Malaysia’s tobacco carveout at TPPA Ministerial on 22 Feb

‘Trade Minister Tim Groser must support Malaysia’s proposals to carve tobacco out of the Trans-Pacific Partnership Agreement if the National government wants to be taken seriously as supporting the plain packaging tobacco law introduced today’, according to Auckland University Professor Jane Kelsey, who has written extensively on how free trade and investment treaties impede smokefree policies.

‘It must also reject the investor-state dispute settlement proposed in the deal’.

The tobacco industry has already threatened to follow the same path they did in Australia. Philip Morris has sued the Australian government directly under an investment treaty and the tobacco industry has backed a World Trade Organisation (WTO) dispute brought by member states against Australia.

New Zealand is already exposed to such claims at the WTO and through a small number of free trade and investment treaties. The proposed TPPA would provide much greater opportunities to the notoriously litigious tobacco firms.

Treasury has reportedly said an investment dispute over plain packaging would cost $3 to $6 million. Presumably, that is only the legal costs of arbitration in dubious offshore investment tribunals.

Professor Kelsey predicted that New Zealand would be looking at paying tobacco companies tens or even hundreds of millions of dollars if the plain packaging law was found to breach the pro-corporate rules in these agreements. ‘That would have to come from somewhere, presumably the health budget’, she said.

The threat of such litigation is intended to scare the government off pursuing the laws or implementing them even if they are passed.

The ministers from the TPPA countries will meet in Singapore from 22 to 25 February.

Malaysia has proposed a carveout to protect all tobacco-related health measures from the TPPA rules.

That would protect New Zealand from US investors suing the government for introducing plain packaging and similar laws under special investor protections written into these agreements.

The US has proposed a self-serving exception that would only protect certain US rules and would not affect the right of tobacco companies to sue.

New Zealand has not committed itself to either proposal. It is also supporting a weak version of a public health exception for the investment chapter, which would not apply to these special investor protections. The US had opposed any such exception for investment.

The only way for New Zealand to protect the smokefree 2025 policy from the TPPA is to support Malaysia’s position. To protect public health policy more generally, it must reject the investor-state dispute settlement process altogether – and preferably the entire TPPA.

ends

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