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Crunch time for National - Jane Kelsey on TPPA

22 February 2014

For immediate release

Crunch time for National: support tobacco carveout from TPPA, resist rear-guard actions

‘The introduction of the plain packaging legislation this month highlighted the added risks that the proposed Trans-Pacific Partnership Agreement (TPPA) poses to New Zealand’s Smokefree 2025 strategy’, said Professor Jane Kelsey, who has written extensively on the impact of free trade and investment agreements on tobacco control policies.

The issue is expected to be on the agenda of the TPPA trade ministers at their four-day meeting that began this morning in Singapore.

‘It is deeply worrying that Associate Health Minister and sponsor of the smokefree policy, Tariana Turia, told TVNZ she has basically been quarantined, along with the rest of her parliamentary colleagues, from knowing the government’s position on the TPPA, despite the impact on her portfolio’, Professor Kelsey said.

Malaysia has reportedly proposed an effective way to protect smokefree policies from the added risks of the TPPA with a total carveout of tobacco control policies from all the rules in the agreement, except perhaps for the removal of tariffs.

That would insulate New Zealand’s Smokefree 2025 strategy from these additional challenges. The New Zealand government has been silent on whether it will support Malaysia.

States opposing Malaysia’s carveout seem likely to propose a diluted alternative, such as excluding tobacco policies from the controversial investor-state dispute settlement processes that give foreign investors the right to sue the government directly in offshore tribunals for compensation.

In a memorandum posted by Action on Smoking and Health today, Professor Kelsey explains why that would be insufficient to stave off challenges under the TPPA.

There would still be numerous new avenues to challenge the smokefree laws under the TPPA. ‘There are 10 or 11 chapters of the TPPA that are likely to hinder Smokefree policies. That alternative would provide a partial exception to half of one chapter’, she said.

Tobacco companies are known to provide legal support for states to bring such action, as is happening now in the WTO challenges to Australia’s plain packaging laws.

The supposed exceptions for public health may not apply to some of these rules, and are inadequate as a defence where they do.

‘There is a high risk that the National government would grasp any lesser option with alacrity. It does not like carve-outs because they set precedents for other products, such as agriculture, irrespective of the public health justifications for Malaysia’s proposal’, Kelsey observed.

‘Trade minister Groser also knows the right of Big Tobacco to challenge our sovereign right to pursue our Smokefree policy is politically damaging, because it shows New Zealanders why the TPPA is bad for New Zealand. It is much harder for people to understand the other ways that TPPA rules could tie the government’s hands’.

Professor Kelsey warned that any move by National to support a limited option would be motivated by politics, not by a commitment to protect public health and the Smokefree 2025 policy from the TPPA.


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