Puig & Welker: Navigating International Tobacco Regulation

Sergio Puig and Marina Welker were the guests of the Mellon Sawyer Seminar on Corporations and International Law speaker series on Friday, October 20. Members of the seminar course and faculty from the university convened in Smith Warehouse, a former tobacco warehouse, to discuss international tobacco regulation. In fact, the location of the meeting came up several times during the discussion, as those in attendance, as well as Puig and Welker, commented on the appropriate location for which such a discussion to take place.

Puig framed his presentation by posing the question, “What are tobacco companies trying to do by triggering litigation in international tribunes?” He proceeded to answer this question by examining several cases in which Philip Morris International has navigated international courts, including the World Trade Organization and the European Court of Human Rights. Welker, on the other hand, explored the culture of kretek capitalism in Indonesia within the context of three regulatory frameworks: the WHO’s Framework Convention on Tobacco Control, National Law PP 109, and the Muhammadiyah fatwa prohibiting smoking.

Puig and Welker’s brief presentations created a framework within which members of the seminar asked a range of questions prompting discussion ranging from the specific tobacco carve-out in the Trans-Pacific Partnership to the implications of Komtek’s nationalist approach to tobacco advertising in Indonesia given the present global nationalist moment.

As the conversation unfolded in Smith Warehouse, several members of the seminar returned to the idea of applying a carve-out similar to that of the TPP’s tobacco carve-out to future multilateral treaties. In the context of global health, Puig commented that such a carve-out might extend to sodas or other junk foods. He also noted that as countries navigate future carve-outs, their choice of form of carve-out would be a major variable. In the case of the tobacco carve-out, he was able to examine the carve-out in such detail because of the excessive litigation that has already been produced by international tobacco companies and their subsidiaries.

Another seminar member questioned the potential danger of applying such broad carve-outs to future multilateral treaties, asking if there was a risk in creating a destabilizing influence by providing carve-outs that are too large. Puig responded that different countries would face different risks under these circumstances, leaving individuals in the room to think about these implications as they left the conversation.

Towards the end of the session, a seminar member asked how long Komtek had been employing a nationalist approach to combat tobacco regulation activists, given the present nationalist moment that is occurring on the global stage. Komtek has long utilized this approach, appealing to the cultural identity of the Indonesian population in order to promote a strong culture surrounding kretek, responded Welker.

This question, posed at the end of the seminar, shed light upon an important contrast in the work of Puig and Welker: the ways in which corporations operate deftly between the national and international worlds. While they are not states themselves, they often operate within states and through states in the name of their own best interests. Puig and Welker’s discussion allowed the seminar to look at an area in which tobacco corporations in particular have engaged with this intersection.

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