Health

The investor-to-state dispute settlement (ISDS) provisions proposed in trade agreements give pharmaceutical corporations the right to sue governments for compensation if domestic laws negatively affect future earnings on their intellectual property or investments, and even if these laws are in accordance with public interests. Better access to medicines or preventing unsafe or ineffective medicines from entering the market could prove problematic.

Major US, Canadian and French pharmaceutical companies have recently challenged pro-public health measures through ISDS disputes brought under ISDS provisions.

Chemical corporations have also used ISDS in numerous occasions to challenge national bans on hazardous substances.

Most well-known cases include:

• Ethyl (US) vs. Canada: following Canada’s ban on the toxic petrol additive MMT, the US producer sued for US$201 million in compensation. In 1998, Canada agreed in a settlement to pay US$13 million and withdrew the ban (NAFTA invoked).

• Philip Morris Asia (Hong Kong) vs. Australia: When Australia introduced plain packaging for all tobacco products in 2011, Philip Morris sued Australia before an arbitral tribunal. In its December 2015 decision, the tribunal dismissed the case, albeit on legal grounds only. Australia spent A$39 million in legal costs (this figure might include a related World Trade Organization case) but Philip Morris only paid half, leaving the Australian taxpayers to pay the other half. As a consequence of this case, countries ranging from Namibia, Togo to New Zealand decided to wait to introduce their own plain packaging for tobacco products. (Australia-Hong Kong BIT invoked)

• Dow Chemical (US) vs. Canada: the chemical corporation initiated a dispute for losses it alleged were caused by a Quebec provincial ban on lawn pesticides containing the active ingredient 2,4-D, classified as a possible carcinogen and one of the ingredients in Agent Orange, the herbicide widely used during the Vietnam war. In a settlement in 2011, the ban was sustained but Quebec was required to state that “products containing 2,4-D do not pose an unacceptable risk to human health or the environment provided that the instructions on their label are followed.” (NAFTA invoked.)

(March 2020)

Scoop | 30-Jun-2015
The Australian government misrepresents the claims of critics and fails to address substantial criticisms of the Trans Pacific Partnership, says civil society network AFTINET.
Australia Broadcasting Corporation | 19-Mar-2015
Australia’s primary negotiator on medicines for the US-Australia FTA, Dr Ruth Lopert, warns that the TPP could force the Australian Government to spend hundreds of millions of dollars to subsidise medicines.
The Guardian | 10-Mar-2015
A major free trade deal should not allow US companies to sue European nations when they pass environmental laws that hurt their profits, MPs in the UK said on Tuesday.
La Croix | 27-Feb-2015
Alors que l’Organisation mondiale de la santé célèbre vendredi 27 février les dix ans de la Convention-cadre pour la lutte antitabac, l’Uruguay, pionnier dans ce combat, fait l’objet d’une plainte déposée il y a cinq ans par le cigarettier Philip Morris.
Last Week Tonight | 16-Feb-2015
Thanks to tobacco industry regulations and marketing restrictions in the US, smoking rates have dropped dramatically. John Oliver explains how tobacco companies are keeping their business strong overseas.
Scoop | 13-Feb-2015
This week’s edition of world-leading medical journal The Lancet includes a call by 27 health experts from New Zealand, Australia, Canada, Chile, Malaysia, the USA, and Vietnam for the TPPA to be made public so its overall health impacts can be assessed.
Reuters | 22-Jan-2015
Cigarette sales have dropped in Australia since plain packaging was introduced on Dec. 1, 2012, prompting Britain to act before its national election in May even as Australia battles international legal challenges from other countries and manufacturers.
Central Telegraph | 22-Oct-2014
Uruguay files its defence against Philip Morris, a test case for big business lawsuits that could hit the EU through the transatlantic trade and investment deal with the US.
Politico | 11-Oct-2014
US trade officials have denied they plan to offer a new tobacco proposal in the Trans-Pacific Partnership talks in Australia later this month.

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