by Nick Florko and Valerie
November 05, 2015
It's Worse than We
with Limits on Food Safety and
Controversial Investor-State System Expanded,
Rollback of Bush-Era Medicine
Access and Environmental Terms.
Pact's Fate in Congress Uncertain at Best;
Long-Awaited Text Reveals Gaps
between Administration Claims
and Actual TPP Terms
on Key Congressional, Public
Today's long-awaited release of the text
the Trans-Pacific Partnership (TPP)
reveals that the pact replicates many of the most controversial
terms of past pacts that promote job offshoring and push down U.S.
wages while further expanding the scope of the controversial
investor-state system and rolling back improvements on access to
affordable medicines and environmental standards that congressional
Democrats forced on the
George W. Bush
administration in 2007.
"Apparently, the TPP's proponents
resorted to such extreme secrecy during negotiations because the
text shows that the TPP would offshore more American jobs, lower
our wages, flood us with unsafe imported food and expose our
laws to attack in foreign tribunals," said Lori Wallach,
director of Public Citizen's Global Trade Watch.
"When the administration says it
used the TPP to renegotiate NAFTA, few expected that meant
doubling down on the worst job-killing, wage-suppressing NAFTA
terms, expanding limits on food safety and rolling back past
reforms on environmental standards and access to affordable
On some key issues, the text reveals
provisions that will cost TPP support from members of Congress who
supported the narrow passage of
Fast Track trade authority this
summer, and affirm for the many members of Congress who backed past
trade deals but opposed Fast Track that the TPP must be stopped.
"Many in Congress said they would
support the TPP only if, at a minimum, it included past reforms
made to trade pact intellectual property rules affecting access
to affordable medicines.
But the TPP rolls back that past
progress by requiring new marketing exclusivities and patent
term extensions, and provides pharmaceutical firms with new
monopoly rights for biotech drugs, including many new and
forthcoming cancer treatments," said Peter Maybarduk, director
of Public Citizen's Access to Medicines program.
"The terms in this final TPP text
will contribute to preventable suffering and death abroad, and
may constrain the reforms that Congress can consider to reduce
Americans' medicine prices at home."
The text also confirms that demands made
by Congress and key constituencies were not fulfilled.
"From leaks, we knew quite a bit
about the agreement, but in chapter after chapter, the final
text is worse than we expected with the demands of the 500
official U.S. trade advisers representing corporate interests
satisfied to the detriment of the public interest," said
Today's text release confirms concerns
about the TPP that were based on earlier leaks and reveals ways in
which the TPP rolls back past public interest reforms to the U.S.
trade model and expands anti-public interest provisions demanded by
the hundreds of official U.S. corporate trade advisers:
anti-public-interest provisions relative to past U.S. trade pacts
The TPP Intellectual Property
Chapter would roll back the "May 2007" reforms for access to
The TPP Environment Chapter
would roll back the "May 2007" reforms by eliminating most
of the seven Multilateral Environmental Agreements that past
pacts have enforced.
The TPP Investment Chapter would
expand the scope of policies that can be challenged and the
basis for such challenges, including for the first time ever
allowing investor-state dispute settlement (ISDS)
enforcement of World Trade Organization intellectual
property terms and new challenges to financial regulations.
With Japanese, Australian and
other firms newly empowered to launch ISDS attacks against
the United States, the TPP would double U.S. ISDS exposure
with more than 9,200 additional subsidiaries operating here
of corporations from TPP nations newly empowered to launch
ISDS cases against the U.S. government. (About 9,500 U.S.
subsidiaries have ISDS rights under ALL existing U.S.
TPP E-Commerce chapter
would undermine consumer privacy protections for sensitive
personal health, financial and other data when it crosses
borders by exposing such policies to challenge as a
violation of the TPP limits on regulation of data flows.
TPP "Sanitary and Phytosanitary"
chapter terms would impose new limits on imported food
safety relative to past pacts. This includes new challenges
to U.S. border inspection systems that can be launched based
on extremely subjective requirements that inspections must
"limited to what is reasonable and necessary" as determine
by a TPP tribunal.
New language that replicates the
industry demand for a so-called Rapid Response Mechanism
that requires border inspectors to notify exporters for
every food safety check that finds a problem and give the
exporter the right to bring a challenge to that port
inspection determinations - meaning new rights to bring a
trade challenge to individual border inspection decisions
(including, potentially, laboratory or other testing) that
second-guesses U.S. inspectors and creates a chilling effect
that would deter rigorous oversight of imported foods.
interest provisions that are the same as past U.S. pacts
The TPP Investment Chapter would
eliminate many of the risks and costs of relocating American
jobs to low-wage countries, incentivizing more American job
The TPP procurement chapter
would offshore our tax dollars to create jobs overseas
instead of at home by giving firms operating in any TPP
nation equal access to many U.S. government procurement
contracts, rather than us continuing to give preference to
local firms to build and maintain our public libraries,
parks, post offices and universities.
Contrary to Fast Track
negotiating objectives, the TPP would grant foreign firms
greater rights than domestic firms enjoy under U.S. law and
in U.S. courts.
One class of interests - foreign
firms - could privately enforce this public treaty by
skirting domestic laws and courts to challenge U.S. federal,
state and local decisions and policies on grounds not
available in U.S. law and do so before extrajudicial ISDS
tribunals authorized to order payment of unlimited sums of
There are no new safeguards that
limit ISDS tribunals' discretion to issue ever-expanding
interpretations of governments' obligations to investors and
order compensation on that basis.
The text reveals the same
"safeguard" Annexes and terms that were included in U.S.
pacts since the 2005 Central America Free Trade Agreement (CAFTA)
that have failed to rein in ISDS tribunals. CAFTA tribunals
have simply ignored the "safeguard" provisions that are
replicated in the TPP, and as with past pacts, in the TPP
such tribunal, conduct is not subject to appeal.
The TPP would ban the use of
capital controls and other macroprudential financial
regulations used to prevent speculative bubbles and
a bullet point analysis of key TPP
investment, food safety, labor and environmental, market access,
rules of origin, procurement and other provisions prepared by labor
and public interest experts for more details.
More detailed analyses of each chapter
will be available next week.
The TPP can take effect only if the U.S. Congress approves it, given
the rules specifying the conditions that must be met for the TPP to
go into effect. The TPP's fate in Congress is uncertain at best
given that since the trade authority vote, the small bloc of members
of the U.S. House of Representatives who made the narrow margin of
passage possible have expressed concerns that the text release shows
were not addressed.
Ten U.S. presidential candidates have pushed anti-TPP messages in
their campaigning, stoking U.S. voters' ire about the pact.
An unprecedented number and wide array of organizations oppose any
attempt to railroad the TPP through Congress by using the Fast Track
Groups united on this extend well beyond
labor unions and include consumer, Internet freedom, senior, health,
food safety, environmental, human rights, faith, LGBTQ, student and
civil rights organizations.
"Now that Congress and the public
can scrutinize the actual text, the reality that it fails to
meet Congress' demands and its terms would be harmful to most
Americans will replace the administration's myth-based sales job
for the TPP, further dimming the TPP's prospects in Congress,"