On January 27, 2014, the National Association of Attorney Generals (“NAAG”) sent a letter, signed by 45 state attorneys general, to the United States Trade Representative (the “USTR”), requesting that all future United States trade agreements explicitly provide that they do not apply to tobacco or tobacco products. 

The letter points out that existing state and local laws and regulations already cover nearly all aspects of tobacco, including marketing, licensing, sales, advertising, fire safety and public smoking.

The attorneys general are concerned that tobacco companies may use international trade agreements to challenge their authority to enforce these laws and regulations.  Such challenges may be brought in forums, such as international arbitration panels, that are not as favorable to state and local laws as the United States courts that traditionally decide such cases.

In the letter, NAAG offers as examples of such challenges international arbitrations involving MSA-related laws, flavoring bans and package warnings.

NAAG says that its January 27 letter was prompted by the current draft of the Trans-Pacific Partnership agreement which, according to NAAG, “would not adequately protect state and local regulation.”  NAAG’s request for a blanket carve-out for all tobacco and tobacco products is not limited to the Trans-Pacific Partnership, however; instead, it is aimed at all future international trade agreements.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders Tobacco practice partner, at 804.697.1420 or by email.