The secret Trans-Pacific Partnership (TPP) is about to become even more secret, perhaps seen as a necessity in light of plans to make it easier for tobacco companies to sue while making health care more difficult to obtain.
The governments negotiating the draconian TPP still don’t want you to know what’s in it. After the last round of negotiations over August 23-30 in Brunei, many cheery media releases congratulated themselves for the “progress” they made. But you will search in vain for any information on what TPP negotiators are up to. They will now end their practice of “consultation” — the Brunei negotiations were the 19th and final round scheduled. Instead, negotiators will begin to meet in unannounced meetings.
In other words, not only is the text of the TPP to remain a secret, the negotiations themselves are now to be secret.
Formal negotiating rounds had occurred about every three months, but now negotiators will meet “intersessionally in the coming weeks” before meeting again at an Asia-Pacific Economic Cooperation (APEC) meeting in Bali, Indonesia, in early October.
Although the good news is that, despite the efforts of several governments, most forcefully the US administration, it appears virtually certain there will be no deal to sign then.
The bad news is that obtaining details may become more difficult. The new, less formal format can reasonably be interpreted to mean that particularly harsh text is being discussed. Several of the 12 negotiating governments are balking at various proposals, but given that each remains inside the talks and issues content-free press releases, the secrecy shrouding the TPP text remains in place, with a stronger curtain apparently about to shut out any stray sunshine.
Yes to tobacco, no to medicine
The Obama administration has consistently pushed for the most draconian rules. Regulations on tobacco products are universally opposed by tobacco companies. Early drafts of the TPP included “safe harbour” provisions protecting national tobacco-control measures — such as package warnings and advertising and marketing restrictions — from corporate challenges. But the Obama administration has reversed course under tobacco industry and US Chamber of Commerce pressure, intending to severely limit the ability of signatory governments to maintain their laws.
The Office of the US Trade Representative said its counter-proposal would “contain a general exception for matters necessary to protect human life or health” and add a provision that a complaining “party” (that is, a corporation) must first meet with “health authorities … to discuss the measure”.
There is nothing in the proposal that prevents a complaining “party” from suing to overturn a regulation following a discussion. And the “general exception” is meaningless as the arbitration boards that hear investor complaints (controlled by entities such as the World Bank) consistently rule that any environmental or safety rule that reduces a corporation’s profits be overturned.
Canada was forced to pay Ethyl Corporation $13 million and issue an apology because it had banned a gasoline additive that causes neurological damage and contributes to air pollution. The chemical company claimed Canada’s ban “expropriated” its profits.
US trade negotiators say the proposals “work together to preserve the right to regulate tobacco products domestically”, but health advocates are worried.
The Campaign for Tobacco-Free Kids and four healthcare advocacy groups issued a joint statement condemning the cave-in to the tobacco industry: “[T]his language is far weaker than [the] original proposal, would not cover lawsuits initiated by tobacco companies and would not provide nations that adopt strong tobacco control measures with the protection they need from tobacco industry challenges.”
Trade agreements wielded as battering rams
Tobacco companies, which must continually create new smokers to replace those who die, are not shy about using existing trade agreements to knock down regulations.
The Campaign for Tobacco-Free Kids said: “The tobacco industry and its allies in government increasingly use trade and investment agreements to challenge legitimate tobacco control measures, and have done so specifically against laws adopted in the US, Australia, Uruguay, Ireland, Norway and Turkey …
“These costly challenges are aimed not only at defeating tobacco control measures, but also at discouraging governments from enacting them in the first place.”
Philip Morris is also suing Australia for damages because of tobacco regulations, despite the country’s High Court ruling that it has no right to sue. Philip Morris moved assets to Hong Kong to sue Australia under a bilateral trade agreement, and the TPP would open the floodgates to similar suits.
At the same time, US intellectual-property proposals would make medicines more expensive through rules that would extend patents and data exclusivity periods for brand-name drugs, impeding trade in generic medicines, and putting new limits on how drug prices are set or regulated, according to the Council of Canadians.
Already, Eli Lilly and Company, one of the world’s largest pharmaceutical companies, is suing Canada for C$500 million because Canada would not grant it two patents. Eli Lilly claims the denial is an illegal confiscation of profits under the North American Free Trade Agreement.
The Global Treatment Access Group, a coalition of Canadian civil society organisations, said the proposed TPP provisions concern public health policy and therefore do not belong in a trade agreement.
These provisions would “regulate countries’ drug pricing programs to the benefit of patented, brand-name pharmaceutical companies, undermining the ability of governments’ public insurance programs to negotiate reduced prices from manufacturers.”
What you don’t know can hurt you
Here’s a sampling of what governments had to say after last week’s Brunei round ended. The US Office of the Trade Representative said: “Buoyed by the ministerial engagement and their commitment to actively guide the negotiations, negotiators advanced their technical work this round on the texts covering market access, rules of origin, investment, financial services, intellectual property, competition, and environment.
“They also made progress on the packages providing access to each other’s markets for goods, services, investment, financial services, temporary entry, and government procurement.”
No details though. Apparently wishing to end any pretence of independence, the Australia Department of Foreign Affairs and Trade issued the same four-paragraph release, word for word.
The New Zealand Ministry of Foreign Affairs and Trade didn’t issue a report at all, merely publishing the chief negotiators’ joint statement.
The Canada Ministry of Foreign Affairs, Trade and Development did manage its own statement, but only said: “During the 19th round, negotiators built on the progress made to date in several areas, including on goods market access, rules of origin, investment, services, financial services, temporary entry, intellectual property, government procurement and environment.”
It said it saw no problem with the US reversal on tobacco.
Signs of resistance?
Thus far, the only sign of resistance among TPP negotiators comes from Malaysia, which reportedly will not sign anything this year as it conducts a “cost-benefit analysis”.
Malaysia has proposed to “carve out” tobacco regulations from the agreement. It is not known if any other countries have joined Malaysia in seeking to preserve tobacco regulations.
The Vietnamese newspaper Thanh Nien reports that the US is the only TPP negotiating country not a signatory to the World Health Organsation Framework Convention on Tobacco Control, which mandates policies to reduce tobacco usage. Passage of the US tobacco proposal would put Vietnam and the other countries in violation of their WHO obligations.
Legislators have demanded access to the secret TPP text. Two years ago, 13 New Zealand organizations were refused a hearing on the TPP. A Canadian opposition MP, Don Davies of the New Democratic Party, has asked the government “to give Canadian MPs the same information that US Members of Congress have about [the TPP].”
Malaysia and possibly New Zealand are balking at US demands aimed at dismantling state-owned enterprises.
New Zealand and Australia are resisting demands on dairy and sugar products, respectively. Japan is likely to resist US demands that it open its borders for automobiles. Chile’s former chief TPP negotiator recently resigned, expressing strong doubts about the wisdom of health-related proposals.
Another development that could delay agreement is if Obama fails to goad the US Congress into re-approving a “fast-track” trade authority. If such an authority is granted, Congress can only vote yes or no — no amendments allowed. If Congress does not vote to give away its authority, the process is significantly slowed down because amendments would require the text to go back to the negotiators. Activists believe Congress might vote on a fast-track authority next month.
However, stopping the TPP will happen in the streets, not in legislative bodies.
It is impossible to overstate the disaster that would occur from an implemented TPP. Labour and environment laws would be outlawed as fetters on the right to maximum profits, national sovereignty would be a relic of the past, and smaller countries would have no control over the plunder of their resources by the larger countries’ multinational corporations. Under the TPP, the task of governments, codified in law, would be to maximise corporate profits.