UNIVERSITY OF CALIFORNIA SANTA CRUZ CONSTRAINING GOVERNMENT REGULATORY AUTHORITY: TOBACCO INDUSTRY TRADE THREATS AND CHALLENGES TO CIGARETTE PACKAGE HEALTH WARNING LABELS A dissertation submitted in partial satisfaction of the requirements for the degree of DOCTOR OF PHILOSOPHY in POLITICS by Eric Crosbie June 2016 The Dissertation of Eric Crosbie is approved: Professor Roger Schoenman, chair Professor Kent Eaton Professor Eleonora Pasotti _________________________________ Tyrus Miller Vice Provost and Dean of Graduate Studies Table of Contents List of Tables and Figures Abstract Acknowledgements Acronyms and Abbreviations Chapter 1: Introduction Chapter 2: History of Tobacco Industry Trade Arbitration Threats and Challenges Chapter 3: A Chilling Example? Testing Awareness and Applicability of International Trade Law Among Policymakers in Australia and New Zealand Chapter 4: Defending a Strong Legislative Bill to Overcome Regulatory Chill: A Deeper Examination of Plain Packaging in Australia and New Zealand Chapter 5: The Strength of Transnational Tobacco Control Advocacy: The Case of Uruguay Chapter 6: The Vigorous Struggle Between TNCs and NGOs to Shape Global Trade governance in the 21 st century: An Examination of the Trans-Pacific Partnership Agreement Chapter 7: Conclusion Appendices Bibliography iii List of Tables and Figures Table 1:1 Table 1:1 Impact of trade threats on regulatory process of HWLs Table 1:2 International trade agreement components and dispute settlement procedures Table 1:3 Evolution of cigarette package HWLs (1960-2015) Table 2:1 Tobacco industry trade threats and challenges to HWL proposals (1989-2015) Table 2:2 Qualifying tobacco industry trade threats and challenges to HWL proposals Table 3:1 Tobacco industry general trade threats Table 3:2 Australian House second reading MP speeches addressing tobacco trade threats Table 3:3 Australian Senate second reading MP speeches addressing tobacco trade threats Table 3:4 New Zealand Senate first reading MP speeches addressing tobacco trade threats Table 4:1 Plain packaging regulatory process timeframe in Australia and New Zealand Table 4:2 The significance of delaying plain packaging Table 4:3 Australia and New Zealand similarities Table 4:4 Plain packaging regulatory development process in Australia Table 4:5 Plain packaging regulatory development process in New Zealand Table 5:1 Australia and Uruguay differences Table 5:2 Comparison of Uruguay, Australia and New Zealand Table 6:1 Revolving door of USTR and tobacco industry executives and consultants Table 6:2 History of fast track authority and implementation of U.S. free trade agreements Figure 3:1 Proposed plain packaging of cigarette packages in Australia Figure 3:2 British American Tobacco plain packaging media campaign in Australia Figure 3:3 British American Tobacco “agree-disagree” campaign in New Zealand Figure 4:1 Australia and New Zealand independent and dependent variable chart Figure 5:1 Philip Morris brand variants for Marlboro cigarettes Figure 5:2 Australia and Uruguay independent and dependent variable chart iv Abstract Constraining Government Regulatory Authority: Tobacco Industry Trade Threats and Challenges and Cigarette Package Health Warning Labels By Eric Crosbie This dissertation investigates the rising authority of non-state actors vis-à-vis the state by examining how tobacco companies are using trade agreements to constrain governments from implementing progressive public health policies that require placing pictorial health warning labels (HWLs) on cigarette packages. In particular, the dissertation seeks to address two different but related puzzles. First, despite being developed countries and global health leaders, it is unclear why Australia has implemented strong HWLs on cigarette packages while New Zealand has delayed its HWL proposal. Second, it is unknown why Uruguay, a developing country, has implemented strong HWLs while New Zealand, a developed country, has delayed its proposal. Informed by archival research of previously secret tobacco industry documents, interviews conducted with policymakers and health advocates closely involved in the policymaking process, and applying a most-similar and most-different systems design, this research demonstrates that tobacco industry trade threats are causing a chilling effect by delaying strong HWLs in New Zealand, but not in Australia and Uruguay and that the key factor in determining the implementation of strong HWLs lies in the governments’ reception to these trade threats. The findings suggest that leftist governments, continued bureaucratic leadership and capacity in the Health Ministry, and independent and confident tobacco control and trade advocacy are necessary conditions in explaining how governments can shape the reception of tobacco industry trade threats and properly implement progressive HWL policies without being weakened or delayed. v Given the limitations of using existing trade agreements to globally preempt strong HWLs in Australia and Uruguay, this analysis also examines the evolving nature of global trade and health governance to demonstrate how tobacco companies are aggressively attempting to shape the pending Trans-Pacific Partnership Agreement (TPP) to further distance decision-making authority away from governments. These efforts have succeeded in securing trade mechanisms, including trade promotion authority, aimed at eliminating the policy space for health advocates to lobby for public health exemptions in trade agreements, but have failed to secure the investor-state dispute settlement (ISDS) mechanism in the TPP to directly challenge tobacco control policies in TPP member states. The results of this research will assist governments to properly implement strong HWLs without being weakened or delayed, which will dramatically help reduce smoking initiation and cessation rates, lower government health expenditures and tobacco industry profits, and help accelerate the global diffusion of strong HWLs. These results also have important implications for future regulations of alcohol, food, and medicine, which are increasingly being targeted through trade agreements. vi Acknowledgements I am extremely grateful for the support I have received throughout the development of this dissertation project. Over the past four years during my time at UC Santa Cruz, I have had the privilege of working with many dedicated and encouraging scholars who have greatly influenced my development in writing, researching and teaching. My advisor, Roger Schoenman, has from the beginning encouraged me to think deeper about my research in the larger debates of international political economy and to continuously adopt a multi- disciplinary approach to help frame my project. This research would not have developed and succeeded in this fashion without him, and I am extremely thankful for all of his advice and support. I am also incredibly grateful to the assistance I have received over the past four years from Kent Eaton. Kent, much like Roger, has from the beginning encouraged me to think more critically about my research project. I truly appreciate the time, effort and most importantly the enthusiasm Kent has provided, which has inspired me throughout the process, reminding me the significance of my project in various areas of study. I also truly appreciate the guidance I have received from Eleonora Pasotti. Eleonora has continuously encouraged me to think more broadly about the impact of my research. During my oral exams there was some doubt that my project was too ambitious, but Eleonora had the vision and understanding to see the bigger picture and the political as well as the policy impact my project could have globally. This guidance provided the right kind of reassurance that propelled me to continue working on my ambitious task of studying multiple country case studies so I thank her immensely for that support. Several other professors, administrative staff, and students have also helped contribute directly or indirectly to this project. I would like to thank Ben Read, Ronnie Lipschutz, Mark Massoud, and Julie Guthman for their willingness to engage and assist me vii by providing timely feedback in developing my project. I would also like to thank Cindy Morris and Sarah Amador for all of their administrative assistance during my time at UC Santa Cruz. I would also like to extend my gratitude to my former mentor and colleagues at UC San Francisco. To Stan Glantz, I am thankful for your continued support over the last four years, especially with grant writing, which truly helped me secure external funding to achieve my goal of completing my dissertation in a productive manner. To Mariaelena Gonzalez, I am also grateful for your continued support in helping shape my research project. Finally, to all of my close family members and friends who have assisted me over the last four years, I thank you for helping me relieve several burdens of stress that made it possible for me graduate. To my wife Nina, I am extremely thankful for all of your love and support and allowing me to pursue my passion, as it is not easy to pay a mortgage bill and raise a young boy when your spouse is trying to complete a doctorate degree. To Jeff Sherman and Martin Ordóñez, I am indebted to you for life for your warm hospitality and the gracious support you provided. My gratitude is also extended to every individual who assisted me over the past four years in helping me achieve my goal of completing my dissertation project. viii Acronyms and Abbreviations