The Center for Policy Analysis on Trade and Health is hosting an event tomorrow in Washington DC on tobacco and trade. The specific focus will be on the tobacco specific exception the United States intends to propose in the Trans Pacific Partnership (TPP) negotiations. I have previously blogged about that here, here and here.
One of the issues discussed in those blog posts is the question of how reference to “science-based” regulation in the proposal might affect domestic regulatory autonomy. Yesterday, I was reviewing the proofs for a publication I have coming out and was reminded of the Philip Morris submission to USTR on the TPP. Among other things, PMI stated that it supports negotiations that foster harmonization of legitimate “science-based” regulations. The submission, which is now available here, goes on to argue that there is a lack of evidence to support the Australia’s move to plain packaging of tobacco products.
This argument about lack of evidence has been central to PMI’s criticism of Australia, despite the fact that Australia is implementing guidelines to Articles 11 and 13 of the WHO Framework Convention on Tobacco Control (available here). The guidelines were developed by Parties to the Convention and adopted unanimously by the Parties. The guidelines were also developed after consideration of available scientific evidence. For example, the WHO FCTC webpage on which the guidelines can be found lists 22 sources used as reference material in development of the guidelines. Many of these sources are peer-reviewed articles published in academic journals.
Despite how innocuous reference to science may appear at first glance, the term is a loaded one in the context of international trade law because it requires states to justify health measures by reference to a specific body of knowledge. Moreover, the Philip Morris submission provides an example of how tobacco companies may invoke any reference to science-based regulation if the language makes it into a tobacco specific exception.