Farmer's Voice

The Transpacific Partnership Agreement text released on November 5th

Almost a month after 12 Pacific Rim nations agreed on the Trans-Pacific Partnership (TPP) provisions, they released on November 5th the treaty's full text, which includes explicit language on TPP countries' "right to regulate in the public interest, including to protect public health, safety, financial stability, and the environment," and a "separate, explicit recognition of health authorities' right to adopt tobacco control measures in order to protect public health," and contains in the Exceptions and General Provisions chapter (Chapter 29) an Article allowing each TPP Party to decide that its tobacco control measures for manufactured tobacco products cannot be challenged by private investors under the Investor-State Dispute Settlement provisions. Tobacco control measures concern the "production or consumption of manufactured tobacco products (including products made or derived from tobacco), their distribution, labeling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, recordkeeping, and reporting requirements," but exclude measures concerning "tobacco leaf that is not in the possession of a manufacturer of tobacco products or that is not part of a manufactured tobacco product." TPP also makes it harder for investors to bring lawsuits based on their "expectations" of profits they would have made under an investment. TPP would also ban the use of shell companies to file lawsuits, which is an issue that arose when Philip Morris International used a subsidiary based in Hong Kong to sue Australia for its plain packaging requirement. The measure exempts leaf tobacco. Although the TPP allows companies to seek monetary damages from governments for alleged violations of the deal, it includes caveats and exemptions that will complicate future lawsuits. Michael Smart, vice president at Rock Creek Global Advisors, said the deal "puts a thumb on the scale that will ease the way for governments to defend their actions." Todd Weiler, a Toronto lawyer who specializes in investment treaty arbitration, said the final draft includes "tweaks" that will make it far less likely to result in successful lawsuits and is "definitely a tightening of the legal standards that existed in NAFTA."

See: https://ustr.gov/trade-agreements/free-trade- agreements/trans-pacific-partnership/tpp-full-text (International Business Times 11/5).