Tobacco ‘Carve Out’ Proposal Shows How TPP Hurts Us

Dave Johnson

In democracies government is supposed to protect regular people from being taken advantage of or harmed by large, powerful interests. Democracies are like a big, national union – the people band together so that the power of numbers protects them and helps them do things to make their lives better.

In the U.S., We the People have laws, regulations, standards and enforcement agencies to protect us. And we all (supposedly) have the right to turn to a modern, well-developed court system for recourse when scammed or harmed by powerful interests.

Big corporations that like to use their size, wealth and power instead of honest, clean competition to get what they want don’t like that. Being told they can’t pollute, run scams, sell dangerous or useless products or harm people, have to pay employees and protect their safety, things like that can get in the way of profits. Being forced to pay damages when they get caught scamming or cause harm can definitely interfere with a quarter’s profits. (Who do these people and their governments think they are, getting in the way of profits?)

Corporations have repeatedly tried to find ways around governments that hold them back, limit their power, give regular people access to the legal system, and interfere with unlimited profits. They’ve funded a decades-long propaganda campaign demanding “limited government” and complaining about the “regulatory burden.” They’ve tried (with some success) to keep people from being able to sue them, using so-called “tort reform.” They’ve even set up a campaign-finance system that amounts to little more than flat-out bribery to get and keep people in office who are willing to do their bidding against the interests of regular people.

Corporations are flat-out tired of that whole democratic-governments-protect-their-citizens-from-corporate-harm thing. If only there could be another way around it… If only…

What if there were a way to get governments and their pesky citizens out of the way of profits? What if there were even a way to be able to turn things around and sue governments for things that they do that limit profits? If only…

TPP: A So-Called “Trade” Deal

The Trans-Pacific Partnership (TPP), currently in the final stages of negotiations in Atlanta, is the largest “trade” deal in history. TPP is being negotiated in secret but we know from leaks that only some of it is actually about what people would consider to be “trade.” For example, TPP extends patents, copyrights and other monopolies so investors can collect “rents.”

One of the leaked provisions that people find most alarming involves corporate/investor rights and the relationship between corporations and governments. Leaks indicate that the investor-state dispute settlement (ISDS) provisions in TPP elevate corporate profits over the decisions citizens make through their governments.

ISDS actually lets corporations sue governments for laws and regulations that might cause them to be less profitable. These suits would not be heard in legitimate, legally constituted courts set up by and located within the countries involved. They would instead be presented before corporate arbitrators. The arbitrators would be corporate attorneys who on other days want to be hired by the corporations they would be ruling for or against.

Tobacco Companies Suing Governments For Protecting Health Of Citizens

One example of what this would allow: tobacco companies could (and already do under similar provisions in other agreements) sue governments for launching programs that help citizens quit smoking – and prevent kids from starting.

The thing is, the harm done by tobacco (480,000 Americans are killed by tobacco each year) is so egregious that allowing these companies to sue governments risks alerting the public to other ways that TPP will allow corporations to sue governments when they try to protect their citizens. And this is happening.

Word is getting out about these corporations-over-governments provisions in TPP. An agreement that actually lets tobacco companies sue governments is so shocking that it is providing a tip-off to the public about what is in TPP. Citizens in several countries have organized to demand their governments not allow this.

So corporations need a way to head this off before it alerts the public to the full extent of what is going on with TPP.

“Tobacco Carve-Out”

There are reports that the U.S. Trade Representative is proposing a “tobacco carve-out” for the Trans-Pacific Partnership (TPP). This would remove tobacco companies from provisions allowing corporations to sue governments when laws and regulations to protect citizens interfere with corporate profits.

But it would leave in place the rest of the things companies can sue governments over.

Maybe there will be a “tobacco carve-out.” Maybe not. Here is the take-away from this. If this ISDS provision in TPP is so bad that it potentially lets tobacco companies sue governments for trying to protect citizens health, what else does it let corporations sue governments for? The need for a “tobacco carve-out” shows that there are few, if any, limits. It begs the question: what else can corporations get away with if TPP is approved?

The U.S. has (or used to have, anyway) a democratic system for determining its own laws and regulations. It still has a well-developed legal system that (still, to some degree) allows citizens access and justice. This is the reason the corporations want TPP so much – to bypass it. And this is the reasons we have to stop TPP.

Call your member of Congress and let them know if you want to approve a supposed “trade” agreement to let corporations sue governments.

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