If you are interested in trade, tobacco and public health, as I am, law prof Sergio Puig has a new paper on tobacco litigation in international courts. There's a lot in there, and I couldn't possibly discuss everything in this blog post. I'm going to focus on just a couple points; I encourage everyone to read the whole paper.
I hope Sergio corrects me if I've gotten this wrong, but it seems to me that one of his general points is that anti-tobacco advocates shouldn't be so fearful of international economic law. In fact, he argues, IEL can help with their efforts, in the following two ways.
First, while international economic agreements may, in the past, have been about tobacco expansion, now they can actually help move away from this. In this regard, he says that "a policy import of the main conclusion involves delinking the interest in tobacco expansion from international economic agreements without eliminating the role of ICs. To that end, future agreements can start to exempt tobacco products from tariff cuts and to mandate the elimination of subsidies." (p. 62)
Second, he argues that international economic courts can play an important role in supporting effective anti-tobacco policies. For example, he says, "[international courts] can positively contribute to tobacco control by acknowledging, endorsing, and legitimizing sensible regulatory efforts and by evidencing how domestic politics and interest groups can shape regulations to meet their needs. Arguing for complete, unfettered deference to government regulators and defending any regulatory initiatives at all costs can be problematic for different reasons." (p. 64)
On both of these points, I am not convinced. With regard to tariffs, if I were a government health official regulating tobacco, my biggest concern would be the influence of protected domestic monopolies, state-owned or otherwise. These are the kinds of institutions who can push back most effectively against stronger tobacco regulation, for example with arguments about lost domestic jobs. Thus, as a health official, I would argue for removing all tariffs, in order to increase competition and limit the power of domestic tobacco interests. That could be done unilaterally, of course, but it could also be done through reciprocal tariff elimination in a trade agreement. In today's world, removing tariffs is not about tobacco expansion (although three decades ago it may have been), but rather about undermining domestic monopolies. In the current environment, I would think that the tariffs would almost certainly be replaced by higher sales taxes, so tobacco expansion is highly unlikely.
As for the role of international courts, I guess I kind of see what he means. If an international court says something like, "this particular regulation was discriminatory, but in general your goal of tobacco reduction is permissible," maybe that could be seen as an affirmation by an international court of the legitimacy of anti-tobacco policies. I suppose that if anti-tobacco groups saw language like that in an opinion, they would use it to their advantage. But my sense is that, on balance, they don't want international courts interfering with domestic tobacco regulation in the ways they do now. They see much more downside then upside.
Finally, I think there is another key point worth exploring. Sergio talks about the principle of discrimination as the basis for international legal claims, as follows (p. 22):
3. Claims over Discrimination
More prevalent are claims involving disparate effects, discriminatory intent, or violations of due process that provide an advantage to certain tobacco products or producers over others. These include claims under the umbrella of nondiscrimination provisions (for example, most-favored-nation (“MFN”) status and national treatment), proportionality standards, or “fair-and-equitable treatment” clauses.
To me, this explanation of the legal principles at issue groups together some very different obligations, and, in fact, "discrimination" is not the general category here. Rather, the obligations he mentions should be broken down into two categories.
First, there are obligations that prohibit nationality-based discrimination (NT and MFN). These should have virtually no impact on the ability of states to regulate. I say "should have" because there are broad interpretations of these obligations out there, but generally speaking, these obligations will not interfere with tobacco regulation that is done for public health reasons. Many public health folks that I've talked to see this point, and are not worried about these obligations (if interpreted properly). They have no desire to discriminate against foreign producers; they just want strong domestic regulations.
And second, there are obligations such as fair and equitable treatment, which are about much more than discrimination, and serve as the basis for broad constitutional-type review of domestic measures. It's the latter that anti-tobacco campaigners should be -- and I think are -- worried about. I think Sergio may see this type of review as having the ability to shape regulation for the better. Maybe. But the anti-tobacco folks who read the Gary Born dissent in the Philip Morris v. Uruguay case are probably not going to be convinced that international courts are so positive.
To be honest, I only skimmed through this paper quickly, so I may have missed some things, or misunderstood some of Sergio's arguments. I am counting on him to show up in the comments with any corrections or further thoughts.