As furious negotiations continue to try to complete a Trans-Pacific Partnership (TPP) trade agreement, for which Congress granted the Obama administration fast track authority a few months ago, a dispute has arisen over whether tobacco companies should be allowed to invoke the takings and other “investor protections” in the TPP to beat back efforts by developing countries to adopt regulations to protect their populations from the ravages of tobacco. The Coalition for Tobacco Free Kids has a done a nice job of documenting how tobacco companies have used international investor-state claims under international trade agreements to attack tobacco regulation. The Obama administration, under pressure from numerous public health groups, has proposed a provision in the TPP to protect member countries from “abusive” tobacco company investor-state claims
A major argument against this approach by the tobacco companies and their allies in Congress has been: “First they come for the tobacco companies . . . “ In other words, maybe tobacco will be denied the opportunity to exploit the investor-state process today, but who knows what other kinds of “abusive’ takings claims will be targeted next? Which is not a bad point. If tobacco companies should be denied the opportunity to exploit trade agreements to challenge tobacco regulations, why shouldn’t this good thinking be applied to protect all manner of lawful domestic environmental and social welfare legislation from abusive investor-state litigation?
Meanwhile, the Bloomberg and Bill and Melinda Gates foundations have set up a mufti-million dollar fund to provide advice to countries targeted by tobacco companies with investor-state litigation. Which is all well and good, but one would hope the foundations would also pay some attention to the root causes of this international litigation explosion in the out-of-control property rights ideology currently being promoted not only on the international scene but in our own domestic court system, including the U.S. Supreme Court.