If we really wanted to tackle drug problems, we might want to try alternatives to alcohol that might have antidotes. However, we've tried to outlaw alcohol before, and it didn't turn out too well. Marijuana is beginning to become slightly less illegal (not on the federal level), and some studies show it's not nearly as harmful a drug as some folks believe it is. Put down your bongs, stop giggling at that cartoon you've been watching all day, and check out some of these links on the effects of marijuana.
Okay, I know that it's become something of a cliche for blogs and news sites to repost John Oliver clips, but dammit, if the guy doesn't keep on covering the types of stories that we normally cover around here. I mean, Stephen Colbert and Jon Stewart used to touch on related topics maybe once every six months or so, whereas Oliver seems to hit on a Techdirt-worthy topic basically every other week (so often we don't get to all of them!). This past week, he did his big segment on the nasty games that Big Tobacco plays around the globe to market its products to just about everyone. Yes, in the US, most cigarette advertising is blocked, but Big Tobacco has just shifted to more vulnerable populations around the globe. That topic, by itself, isn't directly in Techdirt's wheelhouse -- but in the middle of the segment, there's a discussion about corporate sovereignty, and specifically the use by Big Tobacco of "investor state dispute settlement" (ISDS) provisions to allow the big tobacco companies to sue countries for daring to try to regulate cigarettes, advertising or packaging.
The segment on corporate sovereignty starts at around 6 minutes, right after showing examples of ridiculous tobacco commercials that are shown around the globe:
Now countries can try to counteract the influence of that kind of marketing, but if tobacco companies feel threatened, they'll put them through legal hell. Let me take you on a world tour of how they attack laws intended to protect public health, because it's kind of amazing.
Let's start in Australia. In 2011, they passed a plain packaging law, and what that means is this. [Shows (fair use!) news clip describing required packaging of cigarettes with no branding, and scary health pictures]. Australia's plain packaging law bans tobacco company branding from packaging and replaced it with upsetting photos, such as the toe tag on a corpse, the cancerous mouth, the nightmarish eyeball, or the diseased lung. Now, yes, I'm pretty sure I'd find a healthy lung disgusting, but, that thing does look like you're trying to breathe through baked ziti, so [instructing staff] take it down! Just take it down!
Perhaps unsurprisingly, since this law was implemented, total consumption of tobacco cigarettes in Australia fell to record lows and... nightmares about eyeballs have risen to record highs. [Instructing staff] Take it down! Take down the demon eye!
To get these laws, though, Australia has had to run a gamut of lawsuits. First, two tobacco companies sued Australia in its highest court to stop them. The result, was a little surprising, as Australia's attorney general let everyone know. [Shows clip of AG announcing not just the victory, but Big Tobacco having to pay the government's legal fees.] Yes! Score one for the little guy! Even if that little guy is the sixth largest country in the world by landmass.
And the tobacco companies didn't just lose. The judges called their case "delusive," "unreal and synthetic" and said their case had "fatal defects." ....
But Australia's legal troubles were just beginning. Because then, Philip Morris Asia got involved. [Shows clips of a news report saying Philip Morris considering using ISDS provisions to take the Australian government to a tribunal claiming it lowered the value of the company's trademarks].
That's right. A company was able to sue a country over a public health measure, through an international court. How the fuck is that possible? Well, it's really a simple explanation. They did it by digging up a 1993 trade agreement between Australia and Hong Kong which had a provision that said Australia couldn't seize Hong Kong-based companies' property. So, nine months before the lawsuits started, PMI put its Australian business in the hands of its Hong Kong-based Philip Morris Asia division, and then they sued, claiming that the "seized property" in question, were the trademarks on their cigarette packages.
And you've got to give it to them: that's impressive. Someone should really give those lawyers a pat on the back... and a punch in the face. But, a pat on the back first. Pat, then punch. Pat, punch....
He then goes on to point out how Big Tobacco further got three other countries to file complaints with the World Trade Organization (WTO) against Australia, claiming the plain packaging law violates trade agreements: Honduras, Dominican Republic and Ukraine. Oliver then shows a clip noting that Ukraine does not have any tobacco trade at all with Australia, showing how ridiculous the WTO claim is.
Next, he shows how Big Tobacco is sending threatening letters to other countries, like Uruguay, Togo and Namibia for considering health regulations around tobacco products, even going so far as to totally misrepresent the total loss of its lawsuit in Australia, pretending that it was a victory. Oliver's researchers got letters that Big Tobacco sent these countries, threatening "an incalculable amount of international trade litigation."
There's even more in the video -- though it would be great if Oliver also took on the fact that these kinds of ISDS/corporate sovereignty agreements are at the heart of key trade agreements currently being negotiated today by the US and much of the rest of the world in both the TPP agreement and the TTIP agreement.
It's because of stories like this that we're so concerned about these corporate sovereignty provisions. Defenders insist they're necessary to stop countries from absconding with assets built by foreign companies and investors, but that risk tends to be fairly limited, compared to how these agreements are actually being used: to allow corporations to effectively step in and block regulations designed to protect the public.
We've been quite critical of so-called corporate sovereignty provisions in various trade agreements. These provisions -- which trade negotiators prefer to call "investor state dispute settlement" (ISDS) rules (in part because they're so boring when called that, no one pays attention to how pernicious they are) -- basically allow companies to take governments to special tribunals, if new laws and regulations somehow interfere with their attempts to profit. A key example of how this is used under existing (via NAFTA) corporate sovereignty provisions is Eli Lilly demanding $500 million from Canada for daring to reject two of its patents because the drug in question didn't actually prove to be useful. Eli Lilly claims that this undermined the company's "expected future profits" and thus filed this suit, undermining the sovereignty of the country of Canada to determine what is, and what is not, patentable.
Another popular use of corporate sovereignty claims is the tobacco industry, going after countries that pass "plain packaging" laws (which say that all cigarette packaging needs to be without logos and trademarks and such). Whether or not you agree with such laws, the idea that big tobacco companies can take entire countries to these tribunals, demanding many millions of dollars based on laws those countries decided to pass, seems troubling. It's especially been concerning to health officials who have long favored plain packaging regulations.
Apparently, the latest move to salvage corporate sovereignty provisions in the Trans Pacific Partnership (TPP) agreement has the USTR attempting to throw Big Tobacco under the bus by removing tobacco from the ISDS provisions. This is an incredibly cynical and political move, designed to try to quiet some of the health activists' talking points about the plain packaging fights -- while leaving the overall basis of these corporate sovereignty provisions wholly in place.
Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision.
In fact, the cheap attempt by the USTR to toss Big Tobacco under the bus to get a deal done really does more to underline the problems of corporate sovereignty positions, rather than to help smooth things over. If ISDS isn't appropriate for Big Tobacco, why is it appropriate for Big Pharma? Or big mining companies?
The USTR has continued to push out-of-date regulatory concepts into modern trade agreements. These are clearly designed not with the public interest in mind, but with a focus on what's best for the representatives of a few giant companies who are close to the USTR. Helping a few giant multinationals undermine regulations around the globe may be good for future job prospects in the industry, but it's hardly the incentives we should want for public servants.
The last flu season was pretty rough, but there's a new H7N9 strain that has no vaccine (yet!) and is starting to infect and kill people (instead of sticking to birds). We're just about coming to the tenth anniversary of SARS, and we're still creating over 100 million flu vaccines every year using egg embryos -- a process that takes months, time that we might not have if a really serious flu strain spreads quickly across the globe. Here are a few projects that are making vaccines more quickly.
People have been smoking tobacco for centuries (if not longer), but the health problems associated with tobacco have only been shifting from correlation to causation over the last decade or so. As usual, technology might be able to help... by improving how tobacco is used -- with various kinds of smokeless delivery mechanisms or with better treatments for addiction/cancer/etc. So the trend of a shrinking population of smokers might slow down or reverse course if there's a breakthrough in tobacco tech someday. But don't hold your breath.
Back in January of this year, Techdirt reported on tobacco companies suing a local Australian importer of their products for covering up part of their logos with a mandatory health warning. At the time, a spokeswoman for the company involved, British American Tobacco, said:
As the matter is currently before the Court, BAT is unable to comment other than to say that this is a further demonstration that we will take all necessary steps to protect our valuable intellectual property.
EU Health Commissioner John Dalli will face legal action if he tries to reproduce Australia's plain-packaging proposals for cigarettes in Europe, a tobacco industry representative warned this week.
The approach is the same as in Australia:
One likely focus of attack is intellectual property rights, since plain packaging has a smothering effect on companies' logos and trademarks.
I'd like to think that the word "smothering" was taken verbatim from some tobacco company representative, because it sums up nicely the industry's attitude: that any breathing difficulties or respiratory diseases that you may develop as the result of smoking pale into insignificance compared with the outrageous "smothering" of their logos and trademarks.
That's a particularly callous attitude, because those logos and trademarks are only valuable to the degree they have been attached to products that have caused death and disease: the "best" brands are those with a track record of selling – and hence killing – more people than rival products. In effect, the tobacco companies are complaining that all their hard work getting people addicted and smoking themselves to death will be wasted if the plain-packaging proposals for cigarettes are implemented.
The cynical posturing of tobacco firms as the victims in these continuing attempts to undo and avoid the social harm they cause underlines once more how easily intellectual monopolies can be twisted for purposes far from any original justification they may once have had. Patents can kill: so, it seems will trademarks, if tobacco companies get their way.