Whether or not the TPP ever gets ratified, the idea for a tobacco carveout seems to have taken hold. Via Tania Voon on twitter, I see that Australia and Singapore have agreed to amend their FTA to include a tobacco carveout. Here's the added text (p. 97)
Tobacco Control Measures
No claim may be brought under this Section in respect of a tobacco control measure19 of a Party.
19 “Tobacco control measure” means a measure of a Party related to tobacco products (including products made or derived from tobacco), such as for their production, consumption, distribution, labelling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as fiscal measures such as internal taxes and excise taxes, and enforcement measures, such as inspection, recordkeeping, and reporting requirements. “Tobacco products” means products under Chapter 24 of the Harmonised System, including processed tobacco, or any product that contains tobacco, that is manufactured to be used for smoking, sucking, chewing or snuffing.
Here are a few thoughts.
First off, let me ask this question: How often are there formal amendments to FTAs? There can't be too many, so the amendment in and of itself is interesting. The DFAT press release is here.
Second, as Tania pointed out on twitter, this provision is broader than the TPP one, in the sense that there is no need to elect to use it. It just applies generally.
Third, is the use of this provision going to keep spreading? Will other agreements incorporate it?
And finally, this all seems odd to me. I don't find the case for ISDS very convincing, but if we have ISDS, I don't see the need for a tobacco carveout from it. If there are regulatory autonomy concerns, tobacco control is far from the only issue, and a general exception provision makes a lot more sense. It's not clear to me why we don't have such a provision in most investment treaties/FTA investment chapters. Who is objecting to a general exception provision and why?