Kretek Capitalism & Tobacco Litigation: Welker & Puig on how Tobacco’s Proponents Attempt to Defeat Tobacco Control Measures

On October 20th the third iteration of the Seminar on Corporations & International Law’s Guest Speaker Series welcomed Professor Marina Welker of Cornell University and Professor Sergio Puig of the University of Arizona to present on the topic of tobacco control measures.

Professor Welker, an anthropologist, detailed her experiences studying the role of tobacco in Indonesian culture, with an eye towards explaining why Indonesia has become regarded a laggard on the topic of tobacco control in the eyes of the international community. Showing the audience personally taken photographs and packs of Indonesian cigarettes to detail her points, Welker outlined the extensive influence of tobacco in Indonesian society, as borne out by the fact that seventy percent of Indonesian men smoke. Welker also illustrated the lengths tobacco companies go to build and maintain both brand loyalty and a positive image for tobacco consumption, specifically focusing on Sampoerna, a leading producer of tobacco with approximately a one third market share.

The efforts of these companies range from sponsoring camps and concerts, to creating tobacco sponsorships at universities, to engaging in omnipresent marketing campaigns via both simple displays and (perversely) clever television campaigns. These campaigns are clever, in that they find innovative, some might say mocking, ways to minimize the impact of graphic anti-tobacco images placed on packages of cigarettes. They are also far bolder than their, comparatively rare, American counterparts. One tobacco advertisement Welker showed contained bold and colorful text simply reading “DON’T QUIT” (with DO and IT highlighted in each word) – a stunningly audacious message.

The ability of tobacco’s proponents to dovetail these efforts with powerful economic and cultural forces was a key point of Welker’s discussion. Welker showed how groups opposing tobacco control measures make use of the purported importance of tobacco to the Indonesian economy, pointing to the industry as a key source of jobs and government revenue. The idea of what Welker calls “kretek capitalism” (after the locally grown popular variety of clove cigarette) has proved an important barrier to anti-tobacco regulatory measures. Perhaps even more important was Welker’s description of how many Indonesians have come to view tobacco, and especially kretek, as a point of national pride and an important facet of Indonesian culture. By evoking nationalist figures like Indonesia’s former President Suharto, proponents of tobacco have tied the industry to Indonesia’s sovereignty. This has, per Welker, allowed the characterization of anti-tobacco measures like the Framework Convention on Tobacco Control as foreign meddling.[1]

Welker also noted that for all the nationalist posturing surround the Indonesian tobacco industry, Sampoerna is foreign owned, as a subsidiary of Phillip Morris International (or PMI). Professor Sergio Puig’s presentation largely focused on the efforts of PMI to use international law to combat tobacco control efforts. Drawing on his experience in international arbitration, Puig detailed the wide-ranging efforts of PMI to use international law and international treaty obligations to, as he put it, “Chill, Preempt, or Harmonize” tobacco control measures. As Puig mentioned, PMI’s actions have engendered serious sovereignty concerns and, as a result, led to efforts to carve losses resulting from tobacco control measures out of the protections of international treaties. Puig indicated while fielding questions that he is supportive of these measures and supports broader blanket exemptions for government measures tied to the promotion of public health.

Puig also detailed the remarkable dexterity PMI has demonstrated in bringing these actions, which have relied on norms and treaties as varied as international investment law, trade law, and even human rights law. PMI’s ability to bring these actions has often required, as Puig showed, that the company locate suitable plaintiffs. In international trade law, these plaintiffs are nation states. [2] In international human rights law, a small business owner. Puig stated that PMI flatly admits paying the legal fees incurred in bringing these cases. With great relish, Puig also used “LinkedIn” to show that a family member of the plaintiff in Vekony v. Hungary, a human-rights based claim against tobacco control measures adapted in the European Union, is an executive of PMI.

When considered together, it becomes clear that both Professors work illustrates the remarkable flexibility of tobacco’s proponents, and the diversity of steps taken by those groups to defeat measures intended to abate the harm tobacco inflicts on public health.

[1] This characterization has become so powerful that even a declaration that smoking is “haram” (or forbidden) by Indonesian clerics has attracted scorn as the purported product of foreigners like Michael Bloomberg.

[2] As, for instance, only nation states enjoy standing before the World Trade Organization.

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