Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements

Since the adoption of the WHO's WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a 12 party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the USA and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.