The Trans-Pacific Partnership Tobacco Carve-Out Precedent

Abstract

The Trans-Pacific Partnership (TPP) text includes an article allowing the parties’ ability to deny the possibility of challenges to their tobacco control measures under the Investor-State Dispute Settlement (ISDS) provisions. Several TPP parties as well as public health advocates had sought this “tobacco carve-out” to prevent transnational tobacco companies (TTCs) from using the TPP to challenge tobacco control laws, particularly cigarette plain packaging requirements, as they have done using bilateral investment treaties (BITs). TTCs had lobbied the negotiators not to include the tobacco carve-out in the TPP. Regardless if the TPP is ultimately ratified by the parties, the TPP tobacco carve-out will likely be precedent for the insertion of language protecting tobacco control measures in future bilateral and multilateral international trade and investment treaties. Moreover, the TPP tobacco carve-out is another in a growing list of legal and policy defeats for TTCs. This article summarises the state-TTC conflict that influenced and resulted in the TPP tobacco carve-out.