Mr. Eoin Bradley:

I am pleased to be here today on behalf of the Irish Cancer Society to present our concerns, as well as those of the public health community, on the current negotiations on the TTIP. The Irish Cancer Society is not anti-trade, anti-EU or anti-US. We are for fewer people getting cancer and those who get cancer to have the best chance of survival after treatment. We want to see a trade agreement which protects the right of the Government to produce and implement public health policies without the interference of multinational corporations. We should know about such interference. As a country which is fighting global tobacco companies in the domestic courts, we consider it important that no additional opportunity be given to such companies to block, amend and delay public policies that will reduce the cancer rate.

In July 2015, the Irish Cancer Society commissioned Dr. Joshua Curtis of the London School of Economics and Dr. John Reynolds of Maynooth university to examine the potential impact of the investor state dispute settlement or ISDS on Irish public health policy. In their conclusion, they state that public health policies such as plain packaging could be under serious threat if an ISDS is included in the final agreement. Ireland is well used to battling with tobacco companies in the Four Courts, however, ISDS allows these companies to bypass the domestic court system. It is a tactic that the tobacco industry is increasingly using.

In 2012, global tobacco companies sued Australia for its introduction of plain packaging on the grounds that it infringed on intellectual property. The domestic courts found in favour of the Australian Government because, and this is important, public health trumps the rights of the tobacco industry. The tobacco companies lost, and lost spectacularly, and they were even forced to pay the costs to the Australian Government. However, having lost this case, Philip Morris International – which manufactures brands such as Marlboro – used an ISDS mechanism in a little known bilateral investment treaty between Australia and Hong Kong in order to sue the Australian Government. The company even deliberately restructured its Asian business in order to justify the case. The case took three years and cost the Australian Government an estimated AU$50 million, or €30 million.

The Irish Cancer Society report on the TTIP makes a number of recommendations and is designed to offer constructive suggestions in regard to the final agreement, one of which is that ISDS be taken out of it. Ireland is currently subject to just one minor ISDS clause within an energy charter and the fact that we are the fourth largest destination for US foreign direct investment questions the argument that this is essential to trade and development in this country.

The Irish Cancer Society commissioned research on 1,000 adults prior to Christmas and it found that fewer than one in five Irish people are aware of the TTIP while 46% agreed, in principle, with a deal that sought to boost trade but when they were informed that, under a similar trade agreement, Australia was sued by a tobacco company, 47% were concerned it could prevent Ireland from introducing its own new public health measures. This figure rose to 70% among those who were initially aware of the TTIP. One in three people surveyed also believe that the TTIP definitely needs to be reformed in order to limit the opportunities for multinational companies to sue the Irish Government. Again, this rises to 55% among those who were initially aware of the TTIP.

The society has had fruitful discussions with the Department of Jobs, Enterprise and Innovation as well as the European Commission. While we welcome the plans by Commissioner Cecilia Malmström to replace ISDS, and her comments that cases such as the Australian case on plain packaging will not happen under the TTIP, the society wants to see this made explicitly clear in any final agreement. If there is any element of the TTIP that is subject to interpretation or allows public health law to be challenged, big industry will seize upon it.

Should the investment court system go ahead, the society is asking for public health laws to be excluded from the threat of ISDS. This idea is not without precedent. The Trans-Pacific Partnership, or TPP, negotiations, concluded in November 2015, include a specific carve-out that stops the global tobacco industry from suing countries for introducing measures to curb smoking. The significance of the inclusion of this provision in the TPP cannot be overstated and we believe that this now sets the minimum benchmark for the final TTIP agreement. Ultimately, we believe the Irish Government should be seeking, as a minimum, a carve-out for all public health policies. We believe this is a proactive approach that reflects our position as a global leader in public health initiatives. To offer on a plate the opportunity to sue the Irish Government for introducing policies that will save lives is very short-sighted.