President Obama has refused to tell one lawmaker if the Trans-Pacific Partnership will enable American tobacco companies to undermine public health regulations, he said.
Sen. Sherrod Brown (D-Ohio), a vociferous TPP opponent, claimed that the President and his lead negotiator, US Trade Representative Michael Froman, have maintained a wall of silence on the matter despite his repeated efforts to get a straight answer.
“Even something this is clearly violative of the public interest and of public health as the damage big tobacco inflicts on children—even that is not, to our knowledge being addressed,” Brown said.
Brown made the remarks from the Senate floor on Tuesday morning, just before a prerequisite to TPP passage—so-called “fast-track” trade promotion authority—cleared a crucial procedural hurdle in the Senate. With only a simple majority needed to send the legislation to the President, TPA looks all but certain to pass.
After the bill was approved by a 60-37 vote, Sen. Joe Manchin (D-W.Va.), a fellow “no,” echoed Brown’s criticism of administration opacity. He said that secrecy surrounding oversight of TPP talks has been more strict than that governing congressional reviews of the ongoing nuclear negotiations with Iran.
“My staff could go there. They could take notes. We got briefed. We were able to ask questions” Manchin said, of the administration’s approach to meetings on Iran talks. “We couldn’t even take a note or take a note out,” he said of TPP oversight stringency. “And they’re telling me, well, you know, we all depend on trade and the market’s shrinking.”
Although the USTR’s office routinely boasts of the fact that the US has never lost a case in investor-state dispute resolution tribunals that are routinely pilloried by critics of the administration’s trade agenda, the US has lost a state-state dispute resolution involving tobacco companies. In 2009, Congress and the President worked together to ban the marketing and sale of cloves and other flavored cigarettes. Indonesia (not a party to the TPP) subsequently filed a complaint against the US with the World Trade Organization claiming that the law discriminated against its commercial entities because it did not outlaw menthol cigarettes. Jakarta won the case in September 2011. Arbitration was put on hold after both parties agreed to settle the matter privately. The dispute was resolved last September.
Brown, however, in his floor speech, seemed more worried about the prospect of American companies undermining public health initiatives in other countries.
“If a small country wants to write a law to protect their children from the marketing of tobacco products, which what we’ve done in this country, a US tobacco company can threaten a lawsuit against those countries, and those countries are probably going to back off because they can’t afford to go to court with a big American tobacco company,” he said.
Corporations have increasingly sued governments through ISDS and regulatory ceilings written into free trade agreements.
“My office has repeatedly and I, personally, have repeatedly spoken to the President of the United States and United State Trade Rep, Ambassador Froman. And I have repeatedly asked them to fix some of the language on tobacco,” Brown also noted.
“But again, so much of this secretive we don’t even know that,” he later remarked.
