It’s a chilling prospect – the tobacco industry getting a green light to use its vast wealth to sue our Government for introducing health measures that reduce its profits.
But that is what is being proposed as part of a highly controversial new free trade agreement, being negotiated behind closed doors by the European Union and the United States.
It’s called TTIP (Transatlantic Trade and Investment Partnership) and raises the prospect of Big Tobacco and other corporations bringing legal actions against governments that prioritise the health of their citizens over the profits of these companies.
Traditional barriers to trade, such as tariffs, are already very low between the EU and US. TTIP instead focuses on domestic regulations, standards and policies which could be seen to hamper international investment and trading activity.
These challenges to regulations deemed to impact on industry profits would not be heard in the normal public courts but in secret tribunals known as investor-state dispute settlements (ISDS). Rulings would be made by trade lawyers rather than judges.
TTIP has caused concern among many, including the Scottish Government, which does not have a seat at the negotiating table in Europe. Other politicians and our partners in the health promotion community are deeply worried and TTIP has also sparked protests across Europe among members of the public who are fearful of the impact of ISDS and many of the other plans in the proposed agreement.
From ASH Scotland’s perspective, initiatives to reduce smoking could be a prime target of future legal challenges.
For example, if the Scottish Government were to adopt more stringent controls than the rest of the UK on some element of tobacco sales (as it has already done with, say, retail displays) a US firm could claim this was an unfair restriction on its freedom to sell its products and launch a legal challenge.
Any such assault on health measures here is a major concern and one that we and our supporters will fight against.
Cutting tobacco use has enormous health benefits and Scotland’s goal is to achieve a tobacco-free generation by 2034. That ambition should be a greater priority for politicians than defending the profits of the companies who sell a lethal, addictive product.
Tobacco companies are already using ISDS arrangements from other trade agreements to bully governments. Philip Morris is using ISDS to sue Uruguay for increasing the size of the health warnings on cigarette packs, and to bring a case against Australia over its introduction of plain, standardised tobacco packaging two years ago.
The UK Government is now moving forward with legislation for standardised tobacco packaging – a vital health measure that will deter young people from starting to smoke. Making it easier for Big Tobacco to challenge such initiatives should not be on the agenda.
Scotland has its own history of tobacco industry challenges to policies that affect their business. But these have been heard publicly in domestic courts, on the basis of domestic law.
Recent figures showed smoking among teenagers in Scotland is the lowest ever recorded – largely due to policy measures which have reduced smoking, and therefore tobacco company profits.
The TTIP negotiations threaten new powers, less accountability and a huge shift towards putting corporate profits before public health. Prime Minister David Cameron has explicitly ruled out excluding public services such as the NHS from its remit.
It’s a measure of the concern that the European Commission decided to hold a public consultation over the inclusion of ISDS in TTIP. There were 150,000 responses which the Commission is still analysing.
It is up to elected politicians as to whether they will agree to bind their own hands by giving over sweeping new powers to corporations. Any final TTIP agreement will go to both the European Parliament and to Westminster for approval.
We are urging our supporters to keep up the pressure and write to Scotland’s MEPs. We have a clear message for Europe – any trade treaty should make it clear that public health is a legitimate focus for government action and governments should not have to compensate tobacco companies for regulating the sale of an addictive product that kills half of its long-term users.
This article first appeared in Friends of The Scotsman