Journal of Public Health | 3 September 2015
Warning: TTIP could be hazardous to your health
Mark Weiss, John Middleton and Ted Schrecker
The Transatlantic Trade and Investment Partnership (TTIP) is a comprehensive trade and investment agreement (TIA) now under negotiation between the European Union and the USA. The nature of TIAs is changing. Earlier stages of trade liberalization mainly involved reductions in tariffs—customs duties that operate at the border, figuratively if not literally. However, the World Trade Organization (WTO) agreements that came into force in 1995, and a proliferation of bilateral and regional agreements, some of which predate the WTO, involve behind-the-border measures that reduce governments’ policy space: ‘the freedom, scope, and mechanisms that governments have to choose, design, and implement public policies to fulfill their aims’. (p. 105) In the case of TTIP, the Faculty of Public Health (FPH) has identified numerous risks to public health and potential conflicts with the policies called for in its recent manifesto. Here, we outline a few of these.
Four-fifths of TTIP’s claimed benefits in terms of economic growth are derived from EU-US regulatory ‘harmonization’ and elimination of ‘non-tariff barriers’. The 1995 Sanitary and Phytosanitary Standards (SPS) Agreement, a key element of the WTO regime, has already been used to challenge European health and safety regulations, notably in the area of hormone-treated meat for human consumption. The European Commission, which negotiates TTIP on behalf of EU member countries, is promoting ‘SPS-plus’ provisions that go far beyond those in the 1995 agreement. Industry has recently mounted a concerted political attack on the precautionary principle, which is currently entrenched in EU law, as applied to regulating endocrine-disrupting chemicals. TTIP might also give large corporations the opportunity to launch legal challenges, claiming that proposed regulations are not based on scientific risk assessments or that they are ‘unnecessarily trade restrictive’. The latter category is extremely broad, and the USA and other exporting countries have indicated that they consider national policies to reduce medicine costs, tax sugary drinks and junk foods, require nutritional labelling of foods, and protect personal data to fall into that category.2 (p. 27–8)
The National Health Service
The European Commission’s and UK government’s reassurances that the NHS will not be threatened by TTIP ring hollow in light of careful analysis of the language of the European Commission’s position and of the experience (for example) of Slovakia under the provisions of an investment agreement negotiated in 1990. Critically, the UK government has not called for the NHS explicitly to be exempted from TTIP, although they could easily do so. Consequently, in a worst case scenario, commercialization of the NHS could be ‘locked in’ against any future effort to take contracted-out services back into the public sector by the threat of huge compensation claims by foreign investors under the European Commission’s proposed investor-state dispute settlement (ISDS) mechanism, as noted below.
Access to essential medicines
One of the most contentious aspects of the WTO regime has been the restriction on access to essential medicines associated with harmonization of intellectual property protection under the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs). Far from challenging these impacts, the European Commission is continuing its policy of prioritizing the commercial interests of the pharmaceutical industry by promoting ‘TRIPS-plus’ provisions in TTIP. The effect may be to raise the costs of medicines in the EU, restrict access to the clinical data essential for effective regulation of safety and efficacy and for policy assessments of cost-effectiveness, and to stifle vital innovation.
Economic inequalities and health inequalities
Locked-in commercialization is only one way TTIP might increase health inequalities. Economic inequality within (most) national borders has been growing, at least partly as a consequence of the economic integration (globalization) for which TIAs provide key legal infrastructure. Economic inequalities drive many forms of health inequality, and more unequal societies tend to generate poorer health outcomes overall. Yet the European Union’s own economic assessment of TTIP mentions ‘GDP’ 40 times, but makes no reference to ‘inequity’, ‘inequality’ or ‘inequalities’. (p. 11)
ISDS provides another route for corporations to challenge public policies that protect health. ISDS provisions in TIAs offer foreign investors access to mechanisms of arbitration that operate separately from domestic courts, although awards are enforceable through them, in cases where it is claimed that the actions of a host country government have deprived them of profits, ‘usually including future or anticipated profits’. (p. 137–40) Neither domestic firms nor citizens of the countries in question have access to these mechanisms, which are dominated by a small, tightly knit community of law firms and arbitrators, operating with a high degree of secrecy and with few or no restrictions on conflicts of interest. ISDS provisions in bilateral investment agreements are being used with increasing frequency; they have recently been used (for example) by the tobacco transnational Philip Morris to challenge tobacco packaging policies in Australia and Uruguay, (p. 643–4) and by the French corporation Veolia to challenge Egyptian minimum wage laws. (p. 53) TTIP threatens dramatically to expand the reach of such provisions, since on the best available evidence far stronger legal protections are to be accorded to US investors than those for EU States to make policy in the public interest.16
‘Health in all policies’ and free trade and investment agreements
Under the Finnish EU Presidency, a ‘Health in All Policies’ approach was adopted by the EU. The EU embedded health across the breadth of its policy competencies at ‘all levels of governance’ covering social, economic and environmental determinants of health. However, no formal procedures for assessing the health impacts of TTIP are in place. This is of particular concern, because a health impact assessment of a similar mega-agreement, the Trans-Pacific Partnership (TPP), identified risks including limits to regulation of alcohol and tobacco advertising, availability and marketing; restrictions on health-related food labels; and increased costs for medicines.
Many of the evidence-based public health measures recommended in the FPH’s manifesto could run afoul of TTIP—for example, a sugar tax, minimum unit price for alcohol, restrictions on junk food marketing, a living wage and a zero carbon energy policy. Against this background, FPH has called on the UK to reject the European Commission’s mandate to negotiate TTIP on behalf of member states4 in its entirety and reject several key elements of the proposed agreement in anything like their present form (Panel 1). Perhaps the most fundamental question is: what is the underlying rationale for TTIP and similar mega-agreements? And should there be a deal at all?
Panel 1: FPH recommendations on TTIP
FPH proposes that the UK should:
– Reject in its entirety the negotiating mandate of the European Commission for TTIP;
– Reject in its entirety the proposed (and any alternative) investor-state dispute settlement mechanism provisions from TTIP;
– Reject in their entirety the proposed (and any alternative) investment protection standards from TTIP;
– Explicitly exclude the NHS from TTIP (and any wider health and related services—including those at local authority and equivalent level);
– Reject in their entirety any proposed (and any alternative) intellectual property protections from TTIP;
– Reject any proposed (and any alternative) provision that liberalizes the public procurement markets or those in trade in goods and services.