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).

• Eli Lilly (US) vs. Canada: the pharmaceutical corporation challenged Canada’s patent standards after Canadian courts invalidated the company’s supplementary patents for Strattera and Zyprexa, claiming the drugs were not sufficiently innovative. The investor is claiming C$500 million. Case pending (NAFTA 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.)

(October 2015)

Sydney Morning Herald | 3-Jul-2014
The Permanent Court of Arbitration has ordered that Australia will be allowed to challenge Philip Morris Asia’s right to contest Australia’s plain packaging laws, on the grounds that the company only bought shares in its Australian arm so that it could launch the case.
| 11-May-2014
While Uruguay has been celebrated by liberals around the world for its bold steps to regulate cannabis, with new rules taking effect this week, its similarly pioneering attempts to control smoking of another, legal plant – tobacco – has earned it powerful enemies.
Global Policy Forum | 30-Jan-2014
Chemical firm uses trade pact to contest Environmental Law
| 9-Nov-2013
Since announcing the Comprehensive Economic and Trade Agreement (CETA) two weeks ago Harper’s Conservatives have repeatedly labelled those questioning the deal as “anti-trade”. But this Canada-European Union accord is one part trade and four parts ‘corporate bill of rights’.
| 25-Aug-2013
Fast-moving trade talks aimed at reaching an ambitious Trans-Pacific Partnership trade deal have hit a major snag over anti-smoking policies, as divisions emerged over a proposal critics say would expose governments to lawsuits from tobacco companies.
Tobacco Reporter | 19-Jun-2013
Philip Morris International expects a decision to be made this month or next on a challenge by Uruguay as to whether an international tribunal set to hear bilateral investment treaty complaints has jurisdiction over the matter.
Bloomberg | 28-May-2013
Most of La Oroya’s children suffer elevated lead levels, according to the Peruvian government. Parents say some have symptoms — consistent with lead poisoning — that include anemia, convulsions, stunted growth, mental retardation.
New Zealand Government | 26-Mar-2013
There is a risk that tobacco companies will try and mount legal challenges against any legislation, as we have seen in Australia. The Government will wait and see what happens with Australia’s legal cases, making it a possibility that if necessary, enactment of New Zealand legislation and/or regulations could be delayed pending those outcomes.
| 18-Feb-2013
Lawsuits are seen as the inevitable next step if plain packaging of cigarettes is brought in. The government will announce a decision on the matter in the next few days.
| 11-Feb-2013
Uruguay faces its first hearings in the French capital this week in a lawsuit filed by US tobacco giant Philip Morris International against its anti-smoking laws, an official said on Monday.

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