Could the Commission’s ambition to make the TTIP trade deal between the EU and USA a ‘living agreement’ come with harmful side effects? An analysis of the European Commission’s revised proposals for Regulatory Cooperation and Good Regulatory Practices suggests serious impacts for democratic decision-making.

By Zoltán Massay-Kosubek, Policy Coordinator for Health Promotion and Disease Prevention, EPHA.
Giulia Vettore, Communications Coordinator, EPHA.

The European Commission tabled a revised proposal on regulatory cooperation during the last round of TTIP negotiations in Brussels in February 2016. The new proposal aims to broaden the scope to additional legislative areas not yet listed in TTIP, to leave the door open for future changes as part of the ‘living’ trade agreement. At the same time, the Commission’s proposal on Good Regulatory Practices would create barriers to future public interest policies by further institutionalising the US ‘notice and comment’ system, widening windows of influence for professional lobbyists representing vested interests.

The Commission attempts to sweeten the pill to concerned civil society groups by mentioning the right to regulate in the public interest in the core text and noting public health among the public policy objectives. Although NGOs – including EPHA, EHN and EASL – recognise the positive effort, we remain concerned about the serious risk of ‘regulatory chill’. The proposed institutional practices would make it more difficult, time-consuming and costly for governments to present legislative proposals to respond to health threats. Although the Commission claims that the proposals are voluntary, the text would in practice affect the work of regulators on both sides of the Atlantic if and when TTIP is approved.

The proposals do not address the fundamental concerns of public health groups that trade deals are not the appropriate tools to influence or decide on principles of law-making for the public interest. The proposal remains silent on the Regulatory Cooperation Body (RCB), neither confirming nor denying the intention to create a new transatlantic institution (and additional layer of bureaucracy), which might happen at a later stage of the negotiations.

A joint analysis of the draft proposals by public interest members of the TTIP Advisory Group to the European Commission sent to the TTIP negotiators highlighted that some elements have even worsened to an alarming degree.

The analysis points out that the scope of regulatory cooperation is still too broad, and that previous recommendations to secure an exchange of information between regulators on a voluntary basis has only been partially taken into account. In addition to that, the trade agreement – instead of democratic decision-making – is used as a platform to decide on principles of law-making; and the proposal partially aims at regulating impact assessments through TTIP.

Nina Renshaw, EPHA Secretary-General and Member of the TTIP Advisory Group points out, “This proposal leaves the door open to come back to extremely sensitive and controversial issues later, such as trade in health services or pharmaceuticals, perhaps when there is less public scrutiny”. Susanne Løgstrup, Director of the European Heart Network (EHN) and TTIP Advisory Group member also expressed concern over the de-democratising tone of the proposal, “Regulatory cooperation should never be mandatory, as it is vital that the EU and its member states as well as the US remain free to go ahead with regulation to promote public health in their territories irrespective of the other’s views.”

The risk of fundamentally undermining national governments’ and the EU’s ability to regulate to protect or improve public health must be ruled out by the trade negotiators. As the proposals stand, TTIP would create even more opportunities for health-harmful industries to challenge public health protections. “The tobacco lobby would be one of the biggest winners,” stated Renshaw, “The TTIP negotiators have a lot more to do to show that our health is not for trade.”

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