Normalizing Tobacco? The Politics of Trade, Investment, and Tobacco Control

May 2019 | Holly Jarman | Original Scholarship

Policy Points:

  •  Tobacco industry denormalization is a key strategy for tobacco control that has been formalized in the WHO Framework Convention on Tobacco Control.
  • International trade and investment laws are a potential threat to tobacco industry denormalization because they do not automatically incorporate denormalization and, in theory, treat tobacco firms like other commercial interests.
  • Countries that seek to defend tobacco control policies against international trade and investment challenges need to have good governance in two senses: good governance as understood by tribunals and good‐enough governance to manage the processes and requirements that enable policies to survive international challenges.

Context: Tobacco industry denormalization (TID), portraying tobacco product manufacturers as a deadly industry, is a major strategy for public health advocates. Using this strategy, activists around the world have successfully pushed for governments to enact tobacco control regulations, including the unprecedented international Framework Convention on Tobacco Control (FCTC). TID has been a distinctive legal and political strategy that has affected the place of tobacco in law and has both inspired and constrained those who would imitate the strategy in other areas of regulation, such as diet or alcohol. It is therefore a case study in the creation of a distinctive legal approach and of threats to that approach from the changing role of world trade and investment law, which creates a new set of venues that tobacco industry advocates can use to redefine tobacco as a normal good and to seek out “fair and equitable treatment” for their industry.

Methods: I review legal and policy documents pertaining to two major challenges to tobacco control policies in Australia and Uruguay aimed at controlling industry branding.

Findings: International trade and investment law challenges TID and raises fundamental questions about the role of the state in protecting public health. Recent trade disputes involving Uruguay and Australia illustrate this dynamic. Despite losing high‐court challenges against packaging regulations in both countries, tobacco firms were still able to challenge states in a different way, through international trade and investment agreements. This article identifies the industry’s strategies and the responses of those seeking to avoid renormalizing tobacco as a part of world trade. In particular, states must demonstrate that their tobacco control policies satisfy standards set by tribunals, which include standards of good governance, and they must prepare their policies in a way that reduces legal risk and requires good governance.

Conclusions: Although TID has strengthened the hand of tobacco control advocates, TID strategies alone are not sufficient to defend public regulations against extraterritorial legal challenges in an arena that resists the basic TID technique of singling out a particular industry. Public health advocates might also note the FCTC’s aid in helping governments defend themselves against these challenges and consider similar international instruments for other areas.

Keywords: governance, tobacco control, trade, investment.

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DOI: 10.1111/1468-0009.12393
Published in 2019