The Internationalization of Tobacco Tactics

Recently, public health advocates struck a blow against tobacco companies by barring them from bringing challenges under some international trade deals. In this Article, I explain why other governments should adopt similar tobacco “carve-outs.” Specifically, I argue that it is mainly the industry’s aggressive litigation tactics—not the hazardous nature of this consumer product—that justifies treating it in an exceptional manner for the purposes of international litigation. To illustrate my point, first, I explain the nature of the carve-out in relation to a topology of legal forms used to exclude policy areas, economic sectors, and particular industries from obligations stipulated in international economic agreements. I follow with a case study of Phillip Morris International to explain how the industry, by relying on litigation before international courts and tribunals, has aimed at delaying, preempting, and weakening harmonized anti-smoking regulations. I finish by proposing modest ways to refine “Multinational Enterprise or MNE theory,” which aims at understanding the choices of extending control over subsidiaries operating abroad. In particular, I argue for increasing the recognition of international legal capacity and adjudicatory options in conceptualizing ownership, location, and internalization advantages