September 17, 2013

T obacco sickens and, eventually, can kill if consumed as intended. Every country, the United States included, should be taking every effective step to prevent smoking.

The costs and benefits of free trade are clear, but, as recent presidents, Republican and Democratic, have recognized, the long-term gains to society outweigh the short-term losses to particular groups. Thus, the United States has wisely pursued pacts to expand free trade with partners around the world.

What to do, however, when free trade and tobacco control seem to be in tension? The question arises in the context of the Trans-Pacific Partnership (TPP), a proposed trade agreement that would link the United States, Canada, Mexico, Japan, Australia, South Korea, Vietnam and five other countries as never before — spurring global growth and bolstering the United States geopolitically.

Initially, the Obama administration favored a TPP provision exempting individual nations’ tobacco regulations — such as those banning advertising or requiring warning labels — from legal attack as “non-tariff barriers” to the free flow of goods. The idea was that, when it comes to controlling a uniquely dangerous product, there’s no such thing as “protectionism.”

Alas, the United States softened its position at a public meeting of TPP negotiators last month. The new proposal simply specifies that tobacco is included in an existing exemption for policies necessary to protect human life or health, and requires governments to consult before challenging each other’s tobacco rules.

While better than the status quo, in that it might constrain governments from going to bat for domestic tobacco producers, this suggestion would leave tobacco companies free to mount legal challenges to various nations’ policies.

The office of U.S. Trade Representative Michael Froman explained the new stance reflected “consultations with Congress and with a wide range of American stakeholders” — a polite reference to pushback from farm-state legislators, farm lobbies and other interest groups that feared a tobacco exception would expand to a health-related excuse for protectionism against many other products.

Though Asian countries have, in the past, discriminated against U.S. beef on trumped-up health grounds, U.S. agriculture’s fears this time are overblown. Tobacco is unique, and everyone knows it. Surely that can be enshrined in an enforceable agreement — which would be easier if all “stakeholders” worked toward an effective compromise instead of attacking Mr. Froman’s attempt as insufficiently protective of U.S. interests, as business interests continue to do.

Tom Bollyky of the Council on Foreign Relations suggests that the office of the trade representative could formally reassure U.S. businesses that supporting tobacco control in the TPP cannot serve as precedent under other circumstances. It could also make an exemption from legal challenge for tobacco-control measures applicable only to those measures that treat domestic and imported products equally. All concerned should strive for a TPP that addresses legitimate concerns of U.S. business — but reflects the unique dangers of smoking both here and abroad.