Philip Morris leaks reveal use of trade deals to undermine tobacco control

July 17, 2017: Leaked Philip Morris documents for the years 2009-2016 reveal its massive effort to neutralise the United Nations Framework Convention on Tobacco Control, as well as Australia’s plain packaging law.

The documents shed light on one key objective in Philip Morris' FCTC campaign: Keep tobacco within the ambit of international trade deals, so that the company has a way to mount legal campaigns against tobacco regulations. The company lobbied both governments and individual delegates to UN conferences.

At the 2014 biennial conference of the FCTC in Moscow, one proposal initially called for carving out tobacco from trade deals. Trade deals include provisions like protection of trademarks that Philip Morris has used to challenge anti-smoking measures. If tobacco were taken out of the treaties Philip Morris could be deprived of many such legal arguments.

An early draft asked parties to support efforts to exclude tobacco from trade pacts and to prevent the industry from "abusing" trade and investment rules. After frantic lobbying, the final decision only reminded parties of "the possibility to take into account their public health objectives in their negotiation of trade and investment agreements." There was no mention of excluding tobacco.

Philip Morris executive Chris Koddermann, in his email to colleagues on the last day of the conference, declared victory, describing the change as "a tremendous outcome." Overall, the company achieved its "trade-related campaign objectives," including "avoiding a declaration of health over trade" and "avoiding the recognition of the FCTC as an international standard," he wrote.

The win was significant. A former Philip Morris employee said the company has routinely used trade treaties to challenge tobacco control laws. The aim, he said, was "to scare governments away from doing regulatory changes." Even though the tobacco industry has lost a series of major legal battles, its suits have served to delay regulation and yield years of unimpeded sales.

Philip Morris lost its ISDS case against Australia’s 2011 plain packaging law after almost five years, but not before five countries, encouraged and funded by tobacco companies, filed complaints against Australia on the same subject at the World Trade Organization. The WTO has yet to announce a decision in the matter.

The Australian case had a chilling effect in New Zealand. The government announced in 2013 that it was postponing the move and waiting to "see what happens with Australia's legal cases." The New Zealand legislation is now scheduled to go into effect next year.