Inside U.S. Trade reports that some agriculture groups are upset with the idea of creating a special exception for tobacco products in the TPP, as has been proposed, because of the precedent it might set in other policy areas. They argue:
unlike health-related exceptions consistently included in trade agreements going back to the General Agreement on Tariffs and Trade of 1947, the clause now being proposed would not require that a regulation be “necessary” to achieve a legitimate health policy objective in order to be shielded by the safe harbor. Thus, based on nothing more than a subjective belief that a regulation might achieve the desired health objective, a country could take action in breach of the ordinary trade agreement obligations, potentially doing great harm to producers and exporters in the United States.
That last sentence sounds wrong to me. I haven't seen the text of the proposal, but it's hard to imagine it would have the impact of allowing "subjective beliefs" to justify exceptions. I assume it would use language like "related to", as in GATT Article XX(g), and also have something equivalent to the Article XX chapeau. There would still have to be an objectively demonstrated link between the measure and the policy being pursued. But maybe they have seen something in the proposed text to the contrary.
I think it's definitely worth having a discussion of what the precise scope of the various trade law exceptions should be. But I'm not sure we should be worried that losing the necessity language will open the door to protectionism.