APART from its prowess at football, we hear little about Uruguay, a small South American country with a population of about three million. Last Friday, Uruguay was handed a monumental victory after a six-year legal battle brought against it by Philip Morris International (PMI).
Uruguay’s victory against the world’s largest transnational tobacco company offers hope to countries, especially developing countries.
To protect public health, Uruguay passed legislation requiring tobacco companies to apply 80 per cent pictorial health warnings to cover cigarette packs and limit the sale of cigarettes to only one variant per brand to prevent smokers from being misled into thinking one variant was safer than another.
At that time, Uruguay’s 80 per cent pictorial warnings were the largest in the world and welcomed as a bold step by a small developing country.
PMI, a multibillion-dollar company, responded to this public health measure by launching a legal challenge against the government in 2010 at the World Bank’s International Centre for Settlement of Investment Disputes
in Washington DC, the United States.
Based on an obscure 1991 Switzerland-Uruguay bilateral investment treaty, PMI claimed its intellectual property rights had been violated and sales had been hurt.
Uruguay’s cigarette market is not big, and it has fewer smokers than Malaysia.
However, using the trade platform to challenge Uruguay, PMI was sending a message to the rest of the world: be ready to be sued if you strengthen tobacco control measures, such as enlarged pictorial warnings on cigarette packs or plain packaging.
While Uruguay did not have the finances nor the technical expertise to fight this challenge, it did have an oncologist for a president, who was committed to protecting his people from the ravages of smoking and who spearheaded the anti-smoking campaign.
Fortunately for Uruguay, a private American philanthropist provided funds and technical support for its defence through the six years until its victory against the tobacco giant.
Uruguay did not back off nor suspend its strong tobacco control measures.
Last Friday, it was vindicated for exercising its sovereign right to protect public health. The tribunal ordered PMI to pay Uruguay US$7 million (RM27.6 million) and reimburse other costs associated with the case.
Uruguayan President Tabaré Vázquez said: “The health measures that we have imposed to control tobacco and protect the health of our people have been recognised as legitimate and adopted as a sovereign function of our republic.”
In Malaysia, ever since the Health Ministry announced plans for plain packaging in February, there have been protests from the tobacco industry and its sympathisers with similar arguments: how this will violate intellectual property rights, even violate human rights, warning the government of repercussions.
Suing a government is a well-known intimidation tactic because most developing countries do not have the funds for protracted legal challenges.
Previously, Philip Morris has sued the Malaysian and Thai governments on other tobacco control measures. These cases delayed government efforts in reducing tobacco use.
Recently, Australia won a similar challenge brought against it by Philip Morris Asia, which again used a bilateral trade agreement to challenge Australia’s plain packaging laws.
The Malaysian government can take heart from the victories of Uruguay and Australia that adopting stringent tobacco control measures is the sovereign right of the government. The government must protect public health from a harmful business, which causes 20,000 deaths in Malaysia every year.
If Uruguay can prevail against the tobacco giant and win, so, too, can Malaysia. The government should proceed with its plans for plain packaging and ban cigarette pack display in retail outlets.
MARY ASSUNTA, Senior policy adviser, Southeast Asia Tobacco Control Alliance