[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 13501-13503]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          TPP TRADE AGREEMENT

  Mr. BROWN. I appreciate my colleague's words and his work with 
Senator Shaheen on a very important energy bill.
  I rise today to speak about how our Nation's efforts to combat 
tobacco products--the No. 1 preventable cause of death--are being 
threatened by a pending trade bill.
  Next week the Obama administration will continue negotiations on the 
Trans-Pacific Partnership called TPP. The TPP is a proposed trade 
agreement that currently includes the United States and about a dozen 
other countries. It would create a free-trade zone among the member 
countries. Sounds good. Maybe it will create jobs, although trade 
agreements in the past have always been overpromised.
  There are real opportunities for workers and businesses in this trade 
deal if done right, but, like any agreement of this size, there are 
many challenges, many issues that will require a close examination by 
Congress and the American people.
  This sort of one-size-fits-all type deal with a broad set of 
countries--from rich countries, such as the United States and 
Australia, to poorer developing countries, such as Malaysia, to 
communist countries, such as Vietnam--it is a challenging undertaking 
to integrate these economies in a way that works for us.
  Congress will have time to examine the details of the TPP as it moves 
along, but today I would like to talk about one specific part of this 
agreement that hasn't gotten the attention it deserves. In fact, the 
text of the TPP has not been widely available--except more to interest 
groups than it has to the American public. I wish to talk about the 
U.S. proposal on tobacco products and how tobacco companies could 
challenge anti-tobacco efforts in the United States and abroad under 
this Trans-Pacific Partnership.
  We know Big Tobacco will stop at nothing to replace the thousands of 
customers they lose each year to lung disease.
  I remember many years ago--and I will talk a little more about this 
in committee later--we did a number of tobacco hearings when I was in 
the House of Representatives. One thing that was clear that we talked 
about in those days was that I believe the number--350,000, 400,000 
Americans died from tobacco use every year.
  When tobacco executives came and talked to us, one thing was very 
clear: They understood that 350,000 of their customers were dying every 
year, so they had to find 350,000 new customers every year. Where did 
they go? They didn't go to people of the age of the Presiding Officer, 
me, or the Members of the Senate; they went to the people of the age of 
the pages sitting on the steps next to the chair of the Presiding 
Officer. They went after the 14-year-olds, 15-year-olds, and 16-year-
olds because that is how they were going to replenish their customer 
base. Any business has a business plan to attract new customers, but 
when your business actually kills people, as tobacco does--350,000 to 
400,000 a year, and the estimates right now are slightly in excess of 
that--that business has to figure out creative and in this case immoral 
ways of getting young people to start smoking cigarettes.
  More than 440,000 Americans die yearly from tobacco-related 
illnesses, making it the leading cause of death in this country. This 
now includes 50,000 deaths--something we weren't so sure of 20 years 
ago--attributable to secondhand smoke.
  In Ohio each year 20,000 people die from smoking and 2,100 adults die 
from exposure to secondhand smoke. Smoking kills more people in Ohio 
than alcohol, AIDS, car cashes, illegal drugs,

[[Page 13502]]

murders, and suicides combined. This means that 20 percent of deaths in 
Ohio are attributable to smoking.
  Each year 17,000 Ohioans start smoking. By the time they leave high 
school, many are addicted. Ninety percent of adult smokers started 
before their 18th birthday. Of course they did. Not many people start 
smoking when they are 25, 35, or 40.
  Tragically, around 293,000 Ohio children under the age of 18 who are 
alive today will ultimately die prematurely because of their smoking 
addiction. And with the rise in electronic cigarette use among American 
teens, it is not a stretch that deaths of young people who use tobacco 
products may, in fact, increase. Last week the Centers for Disease 
Control and Prevention reported that the percentage of middle school 
and high school Americans who use e-cigarettes doubled from 2011 to 
2012, from 4.7 percent to 10 percent. I have no doubt that we will find 
these devices to have their own negative health effects and that they 
will be serving as gateway devices to conventional tobacco products. 
You have to figure that is the hope of the tobacco companies.
  We know that tobacco-related deaths represent the No. 1 preventable 
cause of death in the world. Thankfully, we are making progress. We 
passed and President Obama signed into law the Family Smoking 
Prevention and Tobacco Control Act 4 years ago, which empowers the FDA 
to regulate the manufacturing and the sale of tobacco products. The 
Family Smoking Prevention and Tobacco Control Act will finally take 
action to curb tobacco use and increase regulation of these deadly 
products.
  This law though, don't forget, was decades in the making. Two decades 
ago--I mentioned this hearing--in my first or second year in Congress, 
I sat on the House Energy and Commerce Committee. Chairman Henry Waxman 
of California, a Democrat, first brought the leaders from the seven big 
tobacco companies to testify about whether tobacco is addictive and 
whether its marketing targeted children. These seven tobacco executives 
raised their right hands--a famous picture, front page amongst 
newspapers in the country--and they pledged to tell the whole truth and 
nothing but the truth to this committee. Then they lied. Under oath, 
they said nicotine is not addictive. They knew nicotine was addictive. 
Their own tests showed nicotine was addictive. But they lied to the 
American people. Their testimony strained the imagination.
  By enacting stronger regulations of the tobacco industry, we helped 
decrease the rates of respiratory and cardiovascular disease and 
cancer. We reduced the risks associated with tobacco use. For example, 
smoking rates in the United States are down from 25 percent of the 
population in 1990 to 19 percent today--from 25 percent to 19 percent. 
That is a huge public health victory. It is not good enough, but it is 
a huge public health victory. Other countries with strong anti-tobacco 
laws, such as England, Canada, and Australia, are seeing similar 
successes. Currently, of the world's 1.3 billion smokers, 83 percent 
live in low- or middle-income countries.
  It is proven that anti-tobacco laws actually help curb this epidemic. 
America has a moral imperative to stand for global public health. 
Besides the 1 billion people in the world predicted by the World Health 
Organization to die this century from smoking, there are secondary 
costs, including agriculture for food being diverted for tobacco fields 
and money spent by often malnourished people on tobacco rather than the 
staples they need.
  It is no accident that tobacco's predatory marketing strategies 
involve appealing to citizens who can least afford to waste tight 
family funds on a preventable addiction to tobacco. In Ohio health care 
costs directly caused by smoking are more than $4 billion--$1.3 billion 
of that paid by Medicaid, by taxpayers. Our overburdened Medicaid 
Program simply can't continue to bear the brunt of these costs.
  We are all affected by tobacco use. Consider this: In Ohio the costs 
to taxpayers of government-related tobacco expenses add up to a virtual 
``tobacco tax'' of each Ohioan of about $600 per household. How does 
that work? People who smoke end up spending more time in the hospital. 
They end up with more diseases and illnesses that are expensive to 
treat. That comes out to about $600 per household, whether you smoke or 
not, paying for that cost. We can't afford those costs in human life 
and society if tobacco companies have the ability to challenge public 
health efforts under trade laws.
  As we have made headway against this plague in America, Big Tobacco 
has turned to trade deals. Amazingly enough, we wouldn't have predicted 
this 30 years ago. Big Tobacco typically has lost fights in the 
Congress. Big Tobacco used to be like the NRA. They used to be like 
Wall Street. Then, they rarely lost any big fight in the Congress. But 
they have in the last 20 years because increasing numbers of Americans 
have understood how Big Tobacco plays, how hard, the way they lobby, 
the underhanded way they market, how they have marketed to children. We 
have stopped a lot of that. What does Big Tobacco do? Now they have 
turned to trade deals as the most fertile avenues for defeating 
international public health efforts. Understand this: The tobacco 
industry has deliberately made big trade laws its new potent and legal 
weapon.
  Last year the U.S. Trade Representative--the key part of this--
proposed a safe harbor provision that would have significantly limited 
efforts by Big Tobacco to challenge anti-tobacco efforts under trade 
rules created by the Trans-Pacific Partnership. They created a safe 
harbor provision.
  The right thing to do was the administration was standing up to Big 
Tobacco against the wishes and lobbying efforts of Big Tobacco. 
However, last month the administration changed course, arguing that the 
United States can best balance the priorities of public health 
advocates and business by not excluding any one product, including 
tobacco, from rules of the trade agreement. Rather than giving tobacco 
safe harbor, they said: We are not going to do it for anybody--the safe 
harbor to protect public health.
  In my view, this desire to strike a balance on a public health issue 
like tobacco is questionable, particularly when there is clear evidence 
that tobacco causes cancer, heart disease, and lung disease. As we have 
said, tobacco use is the world's leading preventable cause of death.
  My concerns are shared by leading public health advocates, such as 
the American Cancer Society Cancer Action Network, the American Academy 
of Pediatrics, and the Campaign for Tobacco-Free Kids, as well as 
longtime anti-tobacco voices such as New York mayor Michael Bloomberg.
  Some will say the current U.S. tobacco proposal recognizes the unique 
nature of tobacco products, but neither the current nor the original 
U.S. proposal would prevent the most serious threat posed to global 
public health--the tobacco industry's ever-growing use of something 
called investor-state disputes or country-to-country dispute cases 
arising over tobacco product measures.
  In other words, since NAFTA--and I was talking to the Presiding 
Officer from Delaware about this a minute ago--the North American Free 
Trade Agreement, companies have been empowered to be able to go to a 
trade court and challenge public health law. If there is a strong 
environmental law, as there was in Canada about additives in gasoline--
a company that made those additives in Richmond, VA, sued the Canadian 
Government, saying that their public health law banning this substance 
in gasoline,--their public health law--hurt their business and was, 
therefore, an unfair trade practice. That is an example of what 
investor-state lawsuits allow in provisions of these trade agreements. 
We are afraid tobacco companies would do the same.
  For example, Australia's Tobacco Plain Packaging Act of 2011 is 
already under challenge under both the Australia-Hong Kong bilateral 
investment treaty and in a separate World Trade Organization dispute 
settlement proceeding. These cases are pending despite the fact that 
Australian courts--

[[Page 13503]]

locally controlled laws, determined laws, locally controlled courts all 
in Australia--that Australian courts already held in favor of the plain 
packaging law.
  What we are allowing is when a country has a strong public health 
law, if we in the United States write a strong public health law in 
tobacco, on clean air, on safe drinking water, the courts of the United 
States said this is constitutional and should stay in effect--what this 
trade agreement would do is allow companies in other countries to sue 
the U.S. Government to undermine and weaken our public health laws.
  There are similar cases launched against Uruguay over its proposed 
graphic warnings proposal on cigarette packages and advertisements. 
Uruguay has passed strong warning signs, warning labels on packages of 
cigarettes, but they have been challenged by tobacco companies in other 
countries. Why should a tobacco company be able to tell the people of 
Uruguay that their law shouldn't stand in a trade court? I mean, what 
is sovereignty all about?
  The bottom line is that the tobacco industry will use every weapon in 
its arsenal. They did it in the House of Representatives, the Senate, 
HHS, and the FDA. They have done it wherever they can. It will use 
every weapon in its arsenal, fortunately unsuccessfully recently--much 
more successfully two decades ago--they will use every weapon in their 
arsenal to protect their packaging and advertising, which is seen by 
millions around the world each day. It is used to attract new 
customers, replacing those who inevitably lose.
  Unfortunately, these investor-state challenges are being used by 
companies around the world more frequently.
  The U.N. Conference on Trade and Development notes that the 62 cases 
initiated in 2012 are the highest number of cases ever filed in 1 year. 
Allowing private enforcement of investment rights outside of domestic 
legal systems can undermine and pose serious threats to public health, 
the environment, and consumer efforts taken by our trading partners, as 
well as our own agencies.
  Americans are willing to support international trade agreements when 
there is a clear public good, but public confidence in the 
international institutions and agreements is quickly diminished when we 
so clearly elevate corporate interests ahead of public health, ahead of 
the environment, ahead of protection for workers, and ahead of public 
safety. In the case of tobacco, of all things, such an upside-down 
approach will lead to greater global public health risk, disease, and 
premature death. Americans don't expect our trade negotiations to 
result in a situation that makes tobacco regulation in the United 
States and around the world more vulnerable to challenges.
  I hope the Obama administration will put forward a new proposal and 
will give favorable consideration to proposals of other trade partners 
that reflect not only the American but the global consensus on tobacco 
priorities as they relate to protecting public health and the common 
good.
  Let me close with repeating something I think is particularly 
important. I remember my first understanding of this in the mid-1990s 
when we were told that 350,000 to 400,000 people died from tobacco use 
every year. We then examined and listened to the tobacco companies talk 
and originally deny their knowledge and their efforts to sell to 
children 12 and 14 and 16 years old with very sophisticated, high-
powered marketing techniques--with mailings--television and radio 
initially, but mailings and other ways--handing out cigarettes and 
billboards near playgrounds and high schools. You can fully understand 
the way tobacco marketing works when you realize they lose 400,000 
customers a year and they have to find 400,000 new customers a year. 
And they will do anything to find those new customers. They will aim at 
children--they will aim at 16- and 17-year-olds, they will aim at the 
poorest people in the world.
  If you are an Indian public health official or a Chinese public 
health official or a public health official in Bangladesh, you have 
lots of problems stemming from cholera and typhoid, malaria, AIDS, and 
tuberculosis, and so you probably don't have the ability to fight back 
against Big Tobacco. We in this country have put a premium on public 
health efforts against Big Tobacco. In those countries their efforts 
have to be against these terrible infectious diseases of tuberculosis 
and malaria and AIDS and cholera and typhoid and all those things, so 
they simply can't fight back on tobacco.
  That is why it is up to us, in our efforts in these trade agreements, 
to stand for something--to stand for public health and fairness and to 
stand up against Big Tobacco and to do the right thing.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Markey). Without objection, it is so 
ordered.

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