Veni, Vidi, Vici: Puig and Welker on Big Tobacco Litigation, Culture, and Regulation

For the third session of the guest speaker series, two scholars presented on the topic of international tobacco corporations tangling with national populations and international regulation. Sergio Puig shared accounts of recent legal developments in national tobacco litigation and international health regulation, while Marina Welker presented an anthropological piece on cigarette culture in Indonesia.

Puig ended his presentation with a tongue-in-cheek Photoshop mash-up of a Philip Morris International (PMI) emblem. The backdrop consisted of part of the Chinese, Polish, and Ukranian flags. In Puig’s words, “I joke right now that Philip Morris is partially a Chinese company, partially a Polish company, and a Ukrainian company.”[1] Directly under the PMI emblem are the words “veni, vidi, vici”—I came, I saw, I conquered. This is not photoshopped, but part of the original PMI emblem.

In popular culture, this Latin phrase alludes to Julius Caesar’s report to the Senate of his swift and conclusive victory abroad. But PMI’s “takeover” of national cigarette markets is anything but conclusive, as both Puig and Welker point out. Tobacco corporations’ means of conquering markets includes litigation or arbitration. Corporate plaintiffs utilize jurisdiction and forum rules, as well as BIT discrimination language, and regional harmonization principles in the EU. PMI also acts as sponsor to individuals who litigate on its behalf. Puig argues that tobacco companies are “abusing” their rights under international relations. “Carve-outs” of state sovereignty doctrines, as in investment treaties, have been used for “socially excessive litigation”. PMI may even have a stake on both sides of the same transnational lawsuit, to craft a careful strategy for maximum market access.

On the opposite end, national and international regulations attempt to stem cigarette sales and use. In particular, international regulations like the Framework Convention on Tobacco Control are of interest to both speakers. The United States has signed but not ratified the FCTC; Indonesia has done neither. According to Puig, PMI has a significant political and economic presence in both these nations. Welker notes that the FCTC has been criticized by Indonesian national groups as “anti-Indonesian”, and by anthropologists as “neo-liberal”. Both speakers draw comparisons to NAFTA’s reception in the US, where the political response it incites may be greater than its actual impact on labor.

Attempts to curb tobacco are not limited to top-down regulation. Grassroots organizations battle other community voices in Indonesia, Welker explained. Civic efforts to educate about the risks of smoking have yielded results like cigarette ad-free cities (ex: Jakarta). Religious groups too, like the Muhammadiya fatwa, state that smoking is haram (prohibited) under Islam. But criticisms of smoking culture are often dismissed due to inconsistent messaging, and skepticism as to the motives of anti-smoking groups (are they being funded by foreigners?). Smoking in Indonesia is still widespread, even among youth. Embedded in Indonesia’s culture, as well as its economy, is the company Sampoerna, which was later purchased by Philip Morris.

94% of smokers in Indonesia use clove-laced tobacco cigarettes: kretek. What Welker calls “Kretek Capitalism” (kretek is the ubiquitous term for clove cigarettes, as a Kleenex may be for a tissue) starts with national tobacco agriculture and moves all the way to consumption. Sampoerna encourages individual “entrepreneurism” to market and sell (for example, cigarette kiosks at a rental unit). Sponsored community events include ziplining and concerts. Museum and live factory exhibits offer idealized and historical nationalist imagery of the handrolled kretek. Ironically, handrolled cigarette market share going down, and machine rolled going up. Currently, four giant corporations control 40% of the market.

But perhaps, as Welker notes, this is a case of the tail wagging the dog. PMI is fragmented into many subsidiaries while showing unity in its successful litigation strategy. But the global company attends to local culture. Strong national culture exemplified in branding and image within Indonesia belies foreign ownership. Welker recounted an anecdote where PMI executives wore traditional Indonesian uniforms of Sampoerna, in a corporate meeting after PMI bought Sampoerna. In Welker’s experience in Indonesia, few Indonesians know that an international company is making their nationally beloved kretek.

 

 

 

 

[1] As noted later, PMI and its subsidiaries use their presence in various nations to gain jurisdiction in their choice of litigation fora.

Leave a Reply

Your email address will not be published. Required fields are marked *