THE tobacco industry has launched a backdoor attack on legislation to make plain packaging of cigarettes compulsory, using a regional free trade agreement to which Australia is expected to become a signatory.

Philip Morris has used Australia's plain-packaging laws, scheduled to come into effect next year, to argue the need for ''investor state'' provisions in the upcoming Trans-Pacific Partnership Agreement.

This would allow companies to sue member governments if they pass legislation curtailing business activities.

Thomas Faunce, an Australian Research Council future fellow at the Australian National University, called on the federal government to resist the inclusion of investor state provisions in the agreement. He said the provisions duplicated ground that had already been covered in the 2005 Australia-US free trade pact.

''Australia can rebut such attempts on the basis that they reopen the [free trade agreement] negotiations where an investor-state clause was expressly excluded,'' Associate Professor Faunce wrote in a critique published today in the Medical Journal of Australia.

Negotiations on the trade agreement - between the US, Australia, New Zealand and six South American and south-east Asian countries - intensified last year and are expected to be completed in September.

In a submission on the proposed trade agreement to the US trade representative, Philip Morris cited Australia's plain-packaging laws among ''initiatives of concern''.

The company said it supported laws to reduce any harm caused by tobacco, but opposed ''extreme and disproportionate regulation … which has the effect of violating international law and expropriating intellectual property rights''.

Simon Chapman, a professor of public health at the University of Sydney, said the company's stance was consistent with the tobacco industry's history of attempting to use trade agreements to defeat individual countries' health laws.

''It's yet another sign of the degree to which the industry will go to to defeat and delay any measure that will actually work [to cut smoking rates]'', he said.

The World Trade Organisation's Uruguay Round had established the right of countries ''to put health considerations above international trade considerations''.

Patricia Ranald, of the Australian Fair Trade and Investment Network, which advises on human rights, and the environment, said Australia would receive little export benefit from the treaty because the free trade agreement was already in place.

''What we want to say to our government is that we should negotiate about trade issues but not about social policies,'' Dr Ranald said.

Craig Emerson, the Minister for Trade, would not commit on excluding investor-state provisions from the trade pact, saying he was not prepared to make policy on the run.

But he said Philip Morris would be ''whistling in the wind'' if it tried to undermine national anti-tobacco laws.

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http://www.smh.com.au/lifestyle/wellbeing/fresh-assault-on-antismoking-laws-20110116-19slv.html