Dear Commissioner Malmström, We are writing as EU and US

January 28, 2015
Ms. Cecilia Malmström
European Commission
Rue de la Loi/Wetstraat 200
1049 Brussels
Dear Commissioner Malmström,
We are writing as EU and US based public health organisations dedicated to ending the global tobacco
epidemic. We warmly congratulate you on your recent appointment as Trade Commissioner.
As you know, the recent public debate about investment protections in trade agreements, most notably
the investor-state dispute settlement (ISDS) mechanism, has particular relevance for tobacco control.
We strongly support steps recently taken by the European Commission to address concerns with the
ISDS mechanism in the Trans-Atlantic Trade and Investment Partnership (TTIP). We are deeply
concerned about the potential for the tobacco industry to misuse international trade and investment
agreements to infringe on the ability of sovereign governments to enact effective non-discriminatory
tobacco control policies, including those related to packaging, to protect the health of their citizens.
Without such policies, tobacco will kill one billion people in this century.
We write specifically to address statements made by Philip Morris International (PMI) in its December 8,
2014 letter on ISDS and its use of this mechanism to challenge tobacco control measures. PMI’s letter
seeks to diminish its abuse of trade and investment agreements, with reference to its proceedings
against Uruguay and Australia. While PMI makes only passing reference to its case against Uruguay, it
makes misleading statements about the Australian case, and seeks to obscure the chilling effect of these
cases on efforts by nations to reduce the number of their citizens who die from tobacco use and the
number of their youth who become addicted to tobacco, issues that directly impact public health.
First, PMI asserts that its unsuccessful constitutional challenge to Australia’s law in the High Court
somehow supports its subsequent ISDS challenge under the Hong Kong – Australia bilateral investment
treaty. It does not. The Australian government comprehensively won the High Court case. PMI brought
the ISDS challenge against the government notwithstanding its loss in a robust, respected and
independent judicial system.
Secondly, PMI seeks to evade legitimate public criticism of its treaty shopping to bring its ISDS case
against Australia. In its letter, PMI states that its subsidiary, Philip Morris Asia (PM Asia) made its socalled ‘investment’ in Australia in 2011, pre-dating the passage of the plain packaging law through
Parliament. The fact is that prior to its ‘investment’ in February 2011, PM Asia had no interest in
Australia; rather, a Swiss company, Philip Morris Brands Sàrl, owned the relevant shares. The
‘investment’ was made after Australia’s announcement on 29 April 2010 of its decision to implement
plain packaging, and in the context of a pre-existing debate between PM Asia and the Australian
Government about the merits of the policy.
Finally, PMI cannot escape from the fact that these cases, in addition to threats to use ISDS against
countries seeking to implement non-discriminatory tobacco control policies, cause regulatory chill and
harm public health. For example, New Zealand has expressly announced that it will defer plain packaging
until the Australian case is resolved, while many other countries closely watch the proceedings and may
not be acting due to PMI’s pending litigation. Further, tobacco companies and their allies send bullying
letters to countries where they aim to grow their market, like Namibia, successfully delaying and/or
weakening tobacco control efforts. Even delay is a benefit to the tobacco industry, giving it additional
time to recruit a new generation to its addictive and deadly product.
We welcomed your recent statements regarding ISDS and the need to address weaknesses to prevent
cases like those against tobacco plain packaging.i More generally, we urge the Commission to protect
efforts to improve public health and to ensure that the TTIP cannot be used to challenge nondiscriminatory policies, including those aimed at tackling the significant harms caused by tobacco.
Mervie Hara, Executive Director
ASH Finland
Dr. Wendy Yared, Director
Association of European Cancer Leagues
Dr. Ross Morgan, Chairperson
ASH Ireland
Georges C. Benjamin, MD, Executive Director
American Public Health Association
Sheila Duffy, Chief Executive Officer
ASH Scotland
Dr. Janet Atherton, President
Association of Directors of Public Health
Deborah Arnott, Chief Executive Officer
Action on Smoking & Health - UK
Luk Joosens, Tobacco Control Advocacy Officer
Association of European Cancer Leagues
Laurent Huber, Executive Director
Action on Smoking & Health - US
Sharon Cosgrove, Chief Executive Officer
Asthma Society of Ireland
Elen de Lacy, Chief Executive Officer
ASH Wales
Luc Van Haute, General Director
Foundation Against Cancer, Belgium
Sandra G. Hassink, MD, FAAP, President
American Academy of Pediatrics
Matthew L. Myers, President
Campaign for Tobacco-Free Kids
Christopher W. Hansen, President
American Cancer Society Cancer Action Network
Gerry McElwee, Head of Cancer Prevention
Cancer Focus Northern Ireland
Nancy A. Brown, Chief Executive Officer
American Heart Association
Harold Wimmer, National President and CEO
American Lung Association
Alison Cox, Director
Cancer Research UK
Yves Martinet, President
Comité National Contre le Tabagisme
French National Committee for Tobacco Control
Leif Vestergaard Pedersen, Managing Director
Danish Cancer Society
Francis Grogna, Secretary General
European Network for Smoking and Tobacco Prevention
Kim Høgh, Chief Executive Officer
Danish Heart Foundation
Peggy Maguire, President
European Public Health Alliance
Michael Rudolphie, Chief Executive Officer
KWF Kanker Bestrijding
Dutch Cancer Society
Floris Ialianer, Chief Executive Officer
Dutch Heart Foundation
Michael Rutgers, Chief Executive Officer
Dutch Lung Foundation
Jean Baptiste Mollet, Director
La Fondation du Souffle
The Foundation of the Breath
M. Yves Bur, President
L'Alliance Contre le Tabac
French Alliance against Tobacco
Lisa Surtees, Acting Director
John McCormack, Chief Executive Officer
Irish Cancer Society
Caroline Costongs, Managing Director
Prof. Aurelijus Veryga, President
Lithuanian Tobacco and Alcohol Control Coalition
Paul De Raeve, Secretary General
European Federation of Nurses
Susanne Løgstrup, Director
European Heart Network
Gérald Audureau, President
Les Droits des Non-Fumeurs
Non-Smokers Rights Association
Nicola Wilson, Senior EU Health Specialist
North of England EU Health Partnership
Peggy Maguire, Director General
European Institute of Women’s Health
Andrew Dougal, Chief Executive Officer
Northern Ireland Chest, Heart and Stroke
Anne Lise Ryel, Secretary General
Norwegian Cancer Society
Christine Cars-Ingels, General Manager
Riksforbundet HjartLung
The Swedish Heart and Lung Association
Kristina Sparreljung, Secretary General
Swedish Heart Lung Foundation
Sofia Belo Ravara, MD
ONG portuguesas
Pelo controlo do tabagismo
Portuguese Tobacco Control Movement
Derek Bell, President
Royal College of Physicians of Edinburgh
Secretary General
Tobaksfakta Independent Think Tank, Sweden
Andrea Crossfield, Chief Executive Officer
Tobacco-Free Futures
Florence Berteletti, Director
Smoke Free Partnership
John Britton, Director
UK Centre for Tobacco and Alcohol Studies
Scott Crosby, Regional Tobacco Policy Manager
Smoke-Free Yorkshire and Humber
Jan Peloza, President
Youth Network No Excuse Slovenia
Dr. Leandro Plaz Celemin, President
Fundacion Espanola del Orazon
Spanish Heart Foundation
Cecilia Malmström, “Debating TTIP”, Speech at Open Europe & Friedrich Naumann Stiftung, Brussels, 11 December