Should Tobacco be Included in Free Trade Agreement?

By: Joe Schuler, Staff Member

In November 2011, leaders from nine countries reached an agreement on a broad outline for a Trans-Pacific Partnership.[1] The announced purpose of the agreement was to enhance trade between the partner countries, promote innovation, economic growth, and retain and create jobs.[2] The countries involved are Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States.[3]

Because the agreement was in the form of a broad outline, it necessarily left details open to further negotiation. One such detail is the scope of the agreement, namely whether tobacco will be covered or excluded. This issue has led to a sharp debate among tobacco farmers and manufacturers, and public health advocates. 

Organizations like the Campaign for Tobacco-Free Kids and the American Medical Association argue that tobacco should not be included in the ban, meaning member nations would remain free to impose tariffs on tobacco imports.[4] They argue that exclusion would support the worldwide campaign to reduce smoking.[5]  On the other hand are tobacco farmers who fear the economic consequences of being left out.[6]

Today’s tobacco farmers rely more heavily on exports than ever before, selling the majority of their crop overseas.[7] More than 80% of Kentucky’s tobacco crop is exported to other countries, which the U.S. Department of Agriculture estimates amounted to more than $238 million in 2010.[8] It seems clear that growers and manufacturers alike are fearful that, as tobacco use continues to decline domestically, they must increasingly rely on exports.

The issue has received the attention of more than 50 U.S. Senators and Representatives of tobacco-producing states, who signed letters expressing their concerns to U.S. Trade Representative Ron Kirk.[9] Senate Minority Leader Mitch McConnell, R-Ky., urged Kirk to consider the economic impact an exclusion would have on the state and national economies, citing Kentucky’s 9.5 percent unemployment rate.[10] The Kentucky General Assembly has also weighed in, with both the Republican led Senate and Democrat led House approving a resolution supporting the inclusion of tobacco and tobacco products.[11]

The General Assembly, and others, argue that the U.S. should abide by its long-held policy of comprehensive trade agreements, and that no agricultural products or commodities should be removed due to public policy.[12] Health groups have countered that the U.S. has signed onto an international treaty to reduce tobacco use.[13] That means that this debate is likely to continue to heat up until the full terms of the agreement are announced, and when that happens it is sure to have major policy implications.

[1] Press Release, Office of the US Trade Representative, Trans-Pacific Partnership Agreement (November, 2011), available at http://www.ustr.gov/about-us/press-office/press-releases/2011/november/trans-pacific-partnership-leaders-statement.
[2] Id.
[3] Id.
[4] James R. Carroll, Tobaccos status in trade deal contested; Kentucky growers urge crops inclusion, Courier-Journal, March 14, 2012, available at http://www.courier-journal.com/article/20120313/NEWS01/303090146/Tobacco-s-status-in-trade-deal-contested-Kentucky-growers-urge-crop-s-inclusion?odyssey=tab%7Cmostpopular%7Ctext%7CFRONTPAGE
[5] Id.
[6] Franco Ordonez, Tobacco Growers fear trade deal will harm exports, Sacramento Bee, Feb 28, 2012, available at http://www.sacbee.com/2012/02/28/4297695/tobacco-growers-fear-trade-deal.html.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Supra, note 4.
[12] Id.
[13] Id.

Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.