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April 25, 2016
Posted by Melinda Kuritzky, JD’13 and Nick Renzler, JD’12
When it comes to tobacco, twenty-first century America is very different from the smoke-filled haze that seemed to define much of the twentieth. In today’s United States, smoking rates are at an all-time low, teenagers are no longer confronted with positive messaging about smoking from the adults or advertisements around them, and “smoking sections” at restaurants are all but obsolete.
As millennials growing up in this era, and in this country, we thought the war against tobacco was won, thanks to the tireless efforts of activists, lawyers and public health experts who came before us.
Then we joined a team of lawyers led by Paul Reichler at Foley Hoag LLP seeking to defend Uruguay’s tobacco control regulations against claims brought by Philip Morris International, a multinational tobacco company. That’s when we realized tobacco companies were active as ever: they had simply shifted their marketing focus away from the U.S. and toward exporting the addiction elsewhere—primarily to low and middle-income countries.
To a certain extent, they have succeeded: tobacco consumption kills roughly six million people every year. It remains one of the biggest threats to global public health. But the public health community has fought back, most visibly with a 2003 global tobacco control treaty passed under the auspices of the World Health Organization (WHO). The treaty encourages countries to enact tough new tobacco control measures to protect their citizens’ right to health—measures the tobacco industry has challenged at every turn, using international trade and investment law to sue governments that seek to limit their marketing power.
Such is the case with Uruguay, which historically has struggled with some of the highest smoking rates in South America. After it ratified the WHO treaty, Uruguay became one of the most progressive governments in the tobacco control arena, instituting a marketing ban on brand variants, a deceptive tool used by tobacco companies to falsely suggest that certain variants are less harmful than others. The government also required large, graphic warning labels on every package—80% of the front and back of the package.
True to form, Philip Morris hit back hard with a claim against the government, arguing that Uruguay’s ban on brand variants and its requirement of larger warning labels violated a 1991 treaty that provides certain protections for investments between Uruguay and Switzerland, where the company is headquartered. Philip Morris also claimed that, in cases related to tobacco control measures, Uruguay has denied the company justice in its domestic courts.
After a lengthy exchange of written pleadings and documents, Uruguay presented its oral arguments in this bellwether case last October during a two-week arbitral hearing. Responding to Philip Morris’ claims, we argued, among other points, that there is a human right to health, enshrined in instruments to which both Uruguay and Switzerland are party, and that Uruguay, as a sovereign State, has both the right and duty, in the exercise of its police powers, to protect public health by adoption of reasonable regulatory measures, like the ones challenged by Philip Morris.
From our perspective, the right to protect public health argument seemed uncontestable: tobacco is the only legal consumer product that kills half of its regular users when used exactly as intended by the manufacturer. Indeed, we asserted, it is Uruguay’s duty to enact bona fide, non-discriminatory measures to protect the public against these harms. Given the tobacco epidemic and its damage, it would be irresponsible for governments to do otherwise.
Moreover, because of Big Tobacco’s well-known tactics to obstruct meaningful and effective tobacco regulation (including pursuing the very case we are defending, and others like it), governments should take this right and duty seriously, enacting strong regulation that untangles the web of harm created by decades of tobacco industry deceit.
As Harold Hongju Koh, a member of our legal team, made clear in a recent Harvard Law School talk with his brother, Dr. Howard Kyongju Koh, tobacco control must be viewed as a public health and human rights imperative. Now it is up to the World Bank ICSID Tribunal, which is expected to release its decision in the Uruguay case later this year, to weigh in.
VIDEO BELOW: The Koh brothers’ talk, “Global Tobacco Control as a Public Health and Human Rights Imperative,” on April 4, 2016 at Harvard Law School. For an incisive take on the Uruguay case, and others like it, see comedian John Oliver’s segment on tobacco industry tactics using international trade and investment law that aired last year.
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