Pushing Pesticides

On June 1, the Philippine Fertilizer and Pesticide Authority (FPA) declared a ban and placed severe restrictions on the use of five toxic pesticides sold and distributed in the Philippines. The ban - the third attempt in less than three years to stem the proliferation of pesticides throughout the country - was enacted despite intense efforts by the German- based chemical company Hoechst-AG to keep two harmful company products on the market.

Since 1992, Hoechst has sought and obtained injunctions following two attempts by the FPA to ban the Hoechst pesticides Brestan (triphenyltin acetate) and Thiodan (Hoechst's brand name for endosulfan). In a May 31, 1994 article in the Philippine Daily Inquirer, FPA administrator Francisco Cornejo said that, of 11 pesticide companies affected by the June 1 ban, Hoechst is the only one which has resisted it.

Philippine environmentalists, physicians, farmer and citizens' groups and government regulators have charged Hoechst with attempting to silence and intimidate organizations opposed to the use of Thiodan and Brestan. While Hoechst has waged its battles with the FPA in the regulatory arena, using the courts to nullify FPA bans, it has also filed lawsuits against a doctor and a news agency that reported on the negative effects of Thiodan.

In April 1992, the FPA declared a ban on two pesticides and placed severe restrictions on two others, including endosulfan. The FPA said these chemicals pose unacceptable risks to human health and the environment. Hoechst, facing a ban on its Thiodan 35EC pesticide, argued that the government did not follow correct regulatory procedures in implementing the ban and won an injunction to keep on selling the pesticide.

Then, in November 1993, after the Philippine government issued a second order banning compounds such as Brestan and the use of endosulfan in rice, Hoechst filed contempt proceedings against the FPA.

At an April 1993 Conference on the Effects of Pesticides on Women, Dr. Romy Quijano, a toxicologist and member of the Pesticide Technical Advisory Committee (PTAC), a technical advisory body created by the FPA, reportedly stated that endosul fan "may cause cancer." After Quijano's remarks were reported in the Philippine press, Hoechst filed a libel suit against

Quijano and two Philippine News and Feature journalists who reported the doctor's remarks, demanding $800,000 in damages.

Jo Joson, a member of the Pesticide Action Group, an international coalition of farmers' organizations and citizens' groups including the Philippine-based Sibol ng Agham at Teknololohiya (SIBAT) and the Pesticide Action Network Asia and the Pacific (PANAP), charges that the Hoechst action is a strategic lawsuit against public participation (SLAPP), an increasingly popular tool among corporations worldwide. Joson says Hoechst sued Quijano "to regulate his activities and silence his criticisms, to put him in a position where he could be neutralized."

Dr. Gerhard Waitz, a spokesperson for Hoechst, staunchly defends the company's suit, however. He says "unjustified allegations" such as Quijano's "have to be opposed ... in the strongest possible form." Waitz claims the company sent Quijano a letter asking the doctor to rectify his statements on the carcinogenicity of Thiodan. When Quijano didn't reply - "even to the extent of denying that he made the statement," Waitz says - Hoechst filed its petition in court.

In recent years, scientists and critics like Quijano have argued that thiodan, or endosulfan, besides killing ticks and snails in rice crops, can also cause serious harm to human beings and the environment.

Waitz responds, "Any chemical product can cause harm to humans or the environment if not used according to label instructions." He adds, "Up to now, we have received no evidence from the Philippine authorities in support of the allegations of the [endosulfan] critics."

Barbara Dinham, of the London-based environmental group The Pesticides Trust, challenges the sort of defense Waitz makes of endosulfan. She says the "corporate response is to constantly [reiterate] that there are no adverse effects from their products if used according to label instructions." Then, she says, "they go on to characterize use contrary to label instructions as misuse or abuse." But, says Dinham, "use as per label instructions is simply not possible under the general conditions of use in the Third World. Use in this manner depends on availability of protective clothes, laundry and washing facilities for workers, good literacy and ability to interpret all label instructions, spray equipment which does not leak and is in good condition ... and so on."

According to Howie Severino, a reporter for the Philippine Center for Investigative journalism who has followed Hoechst's involvement in the Philippines, Hoechst wrote Philippine President Fidel Ramos on January 18, 1994 and on May 15, 1994. "Our survival as a multinational company and our decision to remain in the Philippines is at stake," wrote Hoechst Gennan Agricultural Decision Manager Dieter Jarosch in the first letter. Jarosch warned that the ban would have "undesirable consequences for the Philippine government policy of attracting foreign investors to come to the Philippines."

The Pesticide Action Group's Joson dismisses Hoechst's threat to leave the country as "a bluff designed to scare a government that has been very acquiescent to multinationals' wishes, so that it can have its way." Hoechst has been operating in the Philippines for 35 years. Waitz has since said that the company "intends to stay" in the Philippines.

According to Severino, sales of Thiodan and Brestan in the Philippines dwarf those of all other Hoechst agrochemical products; Thiodan alone accounts for $11 million, or 52 percent of Hoechst's annual agrochemical sales in the Philippines.

Philippine Agriculture Secretary Roberto Sebastian has characterized Hoechst's attempts to resist the ban as "a classic case of corporate arrogance, playing around with our system to suit its interests."

Philippine citizen groups have not backed down in the face of Hoechst's bullying tactics. Instead, in conjunction with other citizen organizations around the world, they have escalated their campaign against the company. On June 16, the Pesticide Action Group launched a worldwide citizens' campaign to boycott Hoechst products and the production and distribution o: Thiodan and Brestan.

PANAP marked the announcement with the release of a new book entitled Citizen _ Pesticides, Hoechst. Ronald McFarland, the author of the book, writes that "the slapping of a suit by a large and wealthy company onto public interest activists and journalists with much fewer resources ... creates a climate of fear and intimidation that is contrary to the pursuit of knowledge."

Joson says, "This is power versus people, and Hoechst has no qualms about wielding its power to pursue its interests against the poor and powerless."

- Billy Treger

Tobacco Puffery

Former top U.S. Trade officials turned tobacco industry advocates Carla A. Hills and Julius L. Katz are holding the latest smoking guns in the battle between national sovereignty and the new world trade order.

The two warned Canadian officials in May 1994 that their country, will be exceeding its authority under international trade agreements if Parliament approves proposed legislation ordering cigarette companies to use plain packaging for cigarettes sold in Canada_

Stripping cigarette wrappers of their eye-catching and distinctive colors and trademarks and instead requiring white packaging and black lettering has been suggested as away of further reducing cigarette smoking in Canada, which has some of the world's toughest anti-smoking laws.

Katz, deputy U.S. trade representative under President Bush, told a parliamentary committee in Ottawa on May 10 that the proposal would rob cigarette makers of one of their most valuable assets - their trademarks. Under a variety of international trade agreements, passage of such legislation could lead to the imposition of trade sanctions or fines costing the country hundreds of millions of dollars.

"Investors will lose highly valuable as sets as a result of plain packaging, since by its very nature such a requirement prevents the use of essential design, color and lettering that are used to create a distinctive product package," Katz told the committee.

Hills, U.S. Trade Representative under Bush, wrote in a legal opinion for R.J. Reynolds and Philip Morris that the Canadian proposal would be "a blatant violation" of the terms of the North American Free Trade Agreement (NAFTA), the new General Agreement on Tariffs and Trade (GATT) and the Paris Convention for the Protection of Industrial Property.

In her written opinion, Hills said that cigarette packaging qualifies as a trademark and that, under those agreements, it could not be infringed upon without compensation. Generic packaging also presents its own problems, Hills wrote, because that would make it very hard to tell cigarette packages apart.

"The proposal would seriously diminish the integrity of the trademark and substantially degrade the value of the distinctive packaging, or trade dress, in which the companies have invested heavily over the years," Hills wrote.

Proponents of the tobacco control measure have lined up some legal experts to challenge Hills and Katz's views. Professor Jean-Gabriel Castel of the Osgoode Hall Law School at Canada's York University said that Canada would be within its legal rights to try to reduce smoking by mandating plain packaging. "Canada would be justified in adopting plain packaging legislation developed to protect the life and health of its citizens and would not violate her international obligations in doing so," Castel wrote in a May legal opinion for the Non-Smokers' Fights Association. Castel's argument centers on the health aspects of the plan, saying "it is only incidentally that the proposed legislation is related to the use of a trademark."

Castel said in his opinion that the trade agreements allow nations to adopt such packaging legislation as a health measure, not as a trade matter. Canada has the authority to ban cigarettes, a step that would eliminate the value of a trademark, he said. Since such a step is not considered expropriation, requiring plain cigarette packages for health reasons wouldn't be either, he argued,

Roger Simmons, chairperson of the Commons Standing Committee on Health, the body that will likely handle Canada's plain packaging legislation, condemns Hills and Katz as "hired guns" who refused to address issues relating to the hazards posed by cigarettes.

Simmons says he is not persuaded by the two former trade officials. "I frankly don't make a lot of the submission," Simmons says. "It was much too self-serving. I understand the companies would try to drag out this one, but I'd be much more impressed if they came in and talked candidly about the impact on their sales, rather than using an intimidation approach."

GATT, a 100-plus nation trade pact, has already been approved in Canada, and Simmons claims that the tobacco advocates are mistaken in thinking that Canada cannot take steps to improve public health because of the world trade agreement. "The intention of GATT was never to let the tail wag the dog, never to let the corporations dominate the governments," said Simmons, who voted for Canada to approve GATT.

But the new GATT is so thoroughly oriented to promoting commercial over non-commercial values that the potential outcome of a formal dispute, were one lodged with the new GATT against Canada, is unclear. The new GATT requires member countries to show that a regulation or law is the "least trade restrictive" means to achieve a particular environmental or consumer goal, or risk having it declared "GATT-illegal" by an international dispute settlement panel.

Under the new GATT's rules on technical barriers to trade, Hills noted in her opinion, Canada could only preserve its plain-packaging anti-smoking initiative by showing that there are no alternative ways to reduce child smoking rates without affecting the tobacco companies 'trademark rights.

And Katz argues that trademarks are inviolable under the GATT and other trade agreements. The new General Agreement on Tariffs and Trade (GATT) and other international trade agreements require that "once granted, [trademarks) may not be encumbered," he told Multinational Monitor. "The reason for that is that the trademarks serve as an information point for consumers. If you encumber the trademark, you are preventing people from knowing what's inside the package."

Katz emphasizes that there is no public health exception to trademark protection. "People who reacted saying surely it's unreasonable not to be able to take measures for health reasons, didn't read the agreement," he says.

The governing Liberal Party has not yet submitted cigarette wrapper legislation to Parliament for consideration, and it may be several months before the measure is formally introduced. In its June, 1994 report, the Standing Committee on Health expressed its support for the concept of generic packaging. But it recommended waiting for the results of additional studies on the potential impact of the legislation before proceeding.

Heather Selin, a spokesperson for the Canadian Council on Smoking and Health, says that she remains convinced that Parliament would support the legislation, though a vote may not come until next winter. "They haven't suggested inaction," Selin says of the legislators' report. "I believe the evidence is sufficient, but there is still a lot of skepticism on the part of some committee members."

Selin's group recently gave the committee its own version of generic packaging. It would involve print describing the dangers of smoking that is larger than the print used for cigarette's brand name.

"These are powerful companies with a hell of a lot at stake, and of course they are going to go down fighting," Selin says. But, she adds, "In the end, it is the government that sets health policy and any government that negotiates that ability isn't going to stay in power very long,"

The Standing Committee on Health report said a generic packaging law would make smoking less appealing to non-smokers, particularly youngsters who are thinking about starting to smoke.

The tobacco industry has frequently been criticized by politicians and smoking activists for targeting, its advertising toward youngsters, for example through the "Joe Camel" cartoon character.

The cigarette packaging dispute is not the first argument arising from the reduced ability of nations to Control their own markets under international trade agreements. A Danish recycling program, a U.S ban on asbestos, a Canadian reforestation program, U.S. and Indonesian restrictions on the export of raw logs and U.S. fuel efficiency laws have all been attacked as non-tariff trade barriers under existing trade agreements.

The proposed new GATT, scheduled to soon be introduced for approval in the U.S Congress, would reduce even further the ability of nations to set their own health, safety and environ mental standards, experts say. The pact calls for the creation of a World Trade Organization (WTO), which activists say will be biased in favor of multinational corporate interests and against consumer and environmental concerns.

"The result [of adoption of the new GATT-WTO] would be expanded control by multinational corporations over the international economy and an increased capacity to undo the most vital health, safety and environmental protections won by citizen movements across the globe, or at the least, to keep future advances at bay," consumer advocate Ralph Nader warned in recent Congressional testimony.

- Steve Farnsworth