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Cadernos de Saúde Pública

On-line version ISSN 1678-4464

Cad. Saúde Pública vol.33  supl.3 Rio de Janeiro  2017  Epub Oct 19, 2017

http://dx.doi.org/10.1590/0102-311x00168515 

ARTICLE

Conceptualizing threats to tobacco control from international economic agreements: the Brazilian experience

Jeffrey Drope1 

Benn McGrady2 

Stella Aguinaga Bialous3  * 

Raphael Lencucha4 

Vera Luiza da Costa e Silva5 

1 American Cancer Society, Atlanta, U.S.A.

2 World Health Organization, Geneva, Switzerland.

3 University of California, San Francisco, U.S.A.

4 School of Physical and Occupational Therapy, McGill University, Quebec, Canada.

5 Escola Nacional de Saúde Pública Sergio Arouca, Fundação Oswaldo Cruz, Rio de Janeiro, Brasil.


Abstract:

Using the results of dozens of interviews with key actors involved in tobacco control policymaking, we examine these actors’ perceptions of threats to tobacco control policy efforts from international economic policies on trade and investment. We also evaluate, from a legal perspective, the genuine threats that exist or potential challenges that economic policies may pose to the Brazilian government’s public health efforts. We find that most actors did not perceive these economic policies as a major threat to tobacco control. Objectively, we found that some threats do exist. For example, Brazil’s attempt to ban most tobacco additives and flavorings continues to met resistance at the World Trade Organization.

Keywords: Tobacco; International Agreements; Tobacco Industry

Resumo:

Com base nos resultados de dezenas de entrevistas com atores-chave envolvidos na formulação de políticas de controle do tabaco, examinamos as percepções desses atores em relação a ameaças ao controle do tabaco provenientes de políticas econômicas internacionais (comerciais e de investimento). Adotando uma perspectiva jurídica, avaliamos também as ameaças existentes e desafios potenciais que as políticas econômicas podem apresentar para os esforços do governo brasileiro na defesa da saúde pública. Segundo nossos achados, a maioria dos atores não percebe tais políticas econômicas como uma grande ameaça ao controle do tabaco. Objetivamente, de fato existem algumas ameaças. Por exemplo, a tentativa do Brasil de proibir a maioria dos aditivos e saborizantes do tabaco ainda enfrenta resistência na Organização Mundial do Comércio.

Palavras-chave: Tabaco; Convênios Internacionais; Indústria do Tabaco

Resumen:

En base a los resultados de decenas de entrevistas con actores-clave, involucrados en la formulación de políticas de control al tabaco, examinamos las percepciones de estos actores, en relación con las amenazas al control del tabaco, provenientes de políticas económicas internacionales (comerciales y de inversión). Adoptando una perspectiva jurídica, evaluamos también las amenazas existentes y desafíos potenciales que las políticas económicas pueden presentar para los esfuerzos del gobierno brasileño en la defensa de la salud pública. Según nuestros hallazgos, la mayoría de los actores no percibe tales políticas económicas como una gran amenaza al control del tabaco. Objetivamente, de hecho, existen algunas amenazas. Por ejemplo, la tentativa de Brasil de prohibir la mayoría de los aditivos y saborizantes del tabaco enfrenta incluso resistencia en el seno de la Organización Mundial del Comercio.

Palabras-clave: Tabaco; Convenios Internacionais; Industria del Tabaco

Introduction

Recent decades have witnessed growing concern in the public health community that international economic agreements, particularly those focused on trade and/or investment policies, pose threats, or potential threats, to public health policies generally and tobacco control policies specifically 1,2. Opponents of tobacco control continue to claim vociferously that many tobacco control policies violate states’ commitments to these agreements 3,4,5,6,7,8. Other researchers and observers have taken a more measured approach to these issues and have often focused on the opportunities to integrate the two policy areas successfully 9,10,11,12. The highest profile recent disagreement has arguably been in regards to Australia’s plain, standardized packaging of tobacco products, with formal disputes in both the World Trade Organization (WTO), the world’s overarching economic treaty that governs international trade, and within international investment arbitration. Brazil is not new to tension at the intersection of international trade policy and public health the project, having been in the middle of a major WTO dispute in the 2000s over importation of retreaded car tires 13,14. However, tobacco control and trade policy in Brazil have not collided thus far in a formal international dispute. But Brazil is widely seen as a global leader in tobacco control over the last 20 years - with innovation and success in multiple key policy areas including graphic warning labels, smoke-free policies, bans on additives, and taxation, to name a few 15,16,17,18 - and as an important, highly globalized economy. In the interest of protecting both public health and Brazil’s economic growth, it is worth understanding how economic and health policies interact and managing such complexities effectively in the specific context of Brazil.

This study examines two distinct but related dynamics at this nexus of public health and international economic policymaking. First, we examine key tobacco control stakeholders’ perceptions of the threats posed to tobacco control policy by Brazil’s commitments to international economic agreements. Second, from a legal-institutional perspective, we evaluate the actual challenges that the country is either facing or may potentially face as a result of its integration in the international economic system, including participation in major trade and investment agreements.

Methodology

In order to evaluate the perceptions of threat, we completed 25 semi-structured key informant interviews across a wide range of tobacco control stakeholders selected on the basis of their active involvement in tobacco control policymaking and knowledge of its intersection with economic policies. Beginning in late 2013, we used purposive sampling to identify informants identified by the public record as participating directly in activities at the intersection of these two policy areas, particularly those who had testified on these issues in international fora such as the WTO 19. This group included a senior official from each of the following ministries, agencies, or organizations: Anvisa (Brazilian Health Regulatory Agency), health, foreign affairs, civil society, and the World Bank. Over the next 11 months, we used a snowball sampling technique where informants named other important individuals with whom we should speak on these topics 20,21. The subsequent informants included individuals from the following ministries or agencies: Anvisa (3 individuals), health (3), agrarian development (2), agriculture (1), the attorney general’s office (1), foreign affairs (5), and foreign trade (1). This group also included individuals from the Brazilian Senate (1), the Brazilian House (1), and a civil society organization (1) that works with tobacco control issues. Finally, the snowball technique led to one representative each from the WTO and a foreign government that has worked with Brazil internationally and domestically in developing its own tobacco control regulation and legislation. Eventually, the informants only named other individuals that we had already interviewed. The interviews used a consistent set of general questions on their technical knowledge of the issues at this policy nexus, particularly how protection of health policy fits into economic rulemaking, and their perceptions of threats to public health in Brazil from commitments to international economic agreements. However, because informants had different backgrounds and experiences, we also tailored questions to the individual and allowed wide latitude for discussion and the introduction of ideas that they deemed relevant and important. Interviews typically lasted 60 to 120 minutes 22. At least two researchers attended each interview. For the handful of interviews that were not recorded, each researcher took comprehensive notes, which were compared systematically following the interview to ensure accuracy and inter-investigator agreement. We transcribed all the recorded interviews verbatim. To elicit the most honest and frank responses, we agreed to only record their agency/organization and also their position in the organization if they agreed. All the informants held senior positions.

To frame the interviews in the official context and to cross-reference interviewees’ thoughts with the official record and broader policy discussions, we also evaluated relevant legislation, regulations, and the wording of international economic agreements, as well as related policy briefs and reports from government and other organizations. Some of the most pertinent official documents came from the minutes of WTO committee meetings in which the Brazilian delegation was either questioning other countries’ trade-related tobacco control activities or were being questioned about the WTO compliance of Brazil’s tobacco control efforts. Using these documents, we sought, as Denzin 23 suggests, to triangulate “people, time and space” in order to better validate these qualitative data.

The transcripts, notes from unrecorded interviews, and other relevant documents were entered into NVivo (QSR International - Americas - Inc., Cambridge, USA) qualitative software and analyzed by all authors using the constant comparative method to identify consistent themes across the interviews 24. The specific major themes coded were: (1) tensions between international economic commitments and public health (especially tobacco control); (2) efforts to work within the existing international economic rules to protect public health; and (3) threats or potential threats to public health from commitments to international economic policies. Saturation was defined as when we no longer received new information from the informants 25. Thematically, as the analysis below demonstrates, there was no major disagreement among the informants’ views, thus indicating a clear and defensible narrative using the themes in order to articulate the main issues and challenges at this policy nexus in Brazil. The narrative in the following section walks the reader through the interviewees’ perceptions of emerging threats (or lack thereof). To increase the data’s trustworthiness, we also provide various direct quotes from the interviews.

The authors obtained permission for the study from the Brazilian National Ethics Research Committee (CONEP case review 15779613.4.0000.5240), as well as from the investigators’ respective institutional review boards. All the interviewees agreed to identification of their organization and position.

Importantly, the key informants typically emphasized Brazil’s recent ban on tobacco additives, which has been a subject of concern in the WTO and is being challenged in Brazil’s Supreme Court by the National Confederation of Industries (CNI). The emphasis is due largely to the fact that this is a current issue in Brazil and tends to dominate discussions on trade and health. Although this study focuses largely on these discussions concerning the ban, we also asked questions on other key issues involving trade and health in Brazil.

Finally, to evaluate the potential challenges that commitments to international economic agreements may pose in the future, we compared Brazil’s existing commitments with contemporary trade and investment agreements and agreements under negotiation. This facilitated the analysis of how new commitments may extend Brazil’s obligations and affect tobacco control. This analysis comprises the discussion section below.

Background

Brazil has already experienced considerable resistance to proposed tobacco control policy - specifically its ban on tobacco additives - within the WTO system. The country has faced particularly intense questioning from WTO members in committee meetings of the WTO’s Technical Barriers to Trade agreement (TBT) 26,27. In these meetings, WTO members have questioned the legislation’s scientific basis, whether it is more trade restrictive than necessary to protect health, and whether it discriminates against blended tobacco products that typically use additives. The Brazilian WTO delegation has vigorously and consistently defended the ban using both internationally- and domestically-generated research to defend the measure’s scientific basis and by explicitly invoking the country’s international treaty commitments to the World Health Organization Framework Convention on Tobacco Control (WHO-FCTC), particularly Articles 9 and 10.

Results

All of the key informants in government and civil society expressed a low level of concern that commitments to international economic agreements might be harmful to public health policies and particularly tobacco control. As a result of the timing of the interviews during the, often vigorous, discussions around and challenges to the tobacco additives ban, many of the informants’ observations were framed mainly around the ban. However, the type and origins of this low level of concern did vary somewhat among the informants. First, those closer to health policymaking expressed evident confidence that health authorities were completely within their rights to regulate and that the ban was consistent with both health (especially the WHO-FCTC) and economic rules (particularly in the WTO framework). Those closer to trade policymaking expressed confidence in two interrelated dynamics: (1) the world trade system’s ability to effectively incorporate public health policies; and (2) Brazil’s success in handling economic and health policy issues as mutually compatible areas. However, many of the more trade-focused actors were also quick to note (and sometimes forcefully reaffirm) the legal status of the tobacco growing sector and its legitimate place in economic policymaking, as a major agricultural export sector.

Largely due to the tobacco additives ban, we observed that all of the informants were familiar with the key issues at this policy intersection, which contrasts with some other countries where these issues are also common, but where government officials are typically much less knowledgable 28. One senior official from Anvisa noted that their department monitors these issues closely and commented on the connection between the US - Clove Cigarette WTO dispute that found the US in violation of WTO law for discriminating against Indonesian clove cigarettes 29 and the discussion in the WTO on Brazil’s tobacco additives ban. The interviewee indicated that Brazil had observed what happened in this dispute and incorporated these experiences into policy design, and expressed confidence that Brazil had forestalled any potential challenges to the ban:

“…the grounds and the basis for the WTO panel are merely that they are treating the same kind of ingredient differently, menthol and clove. I would say that they have a point in this argument; commercially speaking, they have a point in this argument. And what is the basis for that, what is the basis for that exception? We decided that we would not have an exception. So the ban on that [additives] would be 100%”.

Likewise, another senior health official who had several major roles in health policymaking commented on the challenges to the ban in WTO committees:

Anvisa replied to this in the WTO saying that researchers around the world, independent researchers, had confirmed that there was scientific evidence of harm, in fact, it was general, they did not come with any specific request, and we said that all the scientific evidence we held showed that tobacco as a product was harmful to health and that the country had full autonomy to make regulations, and that it was a signatory to an international public health agreement which was binding and approved by the Senate and the Brazilian Executive Branch. So we had regulatory autonomy”.

Importantly, every informant in the health sector explicitly stated that the greatest ongoing threats to tobacco control were mainly domestic, affirming their perception that the WTO context posed minimal risk to tobacco control. In particular, all proponents of the additives ban stated that they were closely watching the challenges to Anvisa in Brazil’s domestic courts, including the agency’s basic power to regulate. One former advocate who had also worked for a major international financial institution summed it up neatly: “So I have the impression that in this position they don’t need to turn to WTO to defend their interests, because they have stakeholders, they have their mechanism and friends, they have powerful friends”.

The interviews with officials from ministries that were more focused on economic policies typically displayed a clear and mostly accurate articulation of the principal challenges that international economic commitments could present to tobacco control policies, but there was a uniform response that the current system is able to address these concerns effectively. A senior official from the ministry of foreign affairs who has worked at the intersection of WTO negotiations and public health, including tobacco control, expressed confidence that the existing system’s safeguards were sufficient to protect human health:

I think it goes from the presumption that the commitments assumed by Brazil in the trade area, and I’m talking basically about my area of expertise, is that WTO agreements, but also our own regional agreements, all have very specific exemption clauses for the protection of public health. So, on this aspect, whatever measure may be adopted in tobacco policy, as well as in other areas that point precisely to the protection of the population’s health and life, are not at odds, at first glance, with compliance on trade matters”.

Likewise, another interviewee with years of direct experience in WTO negotiations emphasized that in the area of intellectual property rights, Brazil has been a world leader in preserving public health policies. While this official cited access to medicines as the example, he suggested that the Brazilian government would just as quickly protect other policies that promote human health, such as tobacco control.

In terms of the orientation toward exports, one senior official from the ministry of foreign trade emphasized tobacco’s role in the Brazilian economy:

This [tobacco] is an economic activity, and as an economic activity in Brazil, as you know, most part of the production comes from the South. So there are a lot of communities linked to tobacco production and the tobacco business, and this is affected, and they all have a legitimate part in the process, to have their interest in exporting with lower tariffs, because it’s good for their business - that’s the basic idea”.

The spirit of this quotation was reiterated by the interviewees from the ministries of trade, foreign affairs, and agriculture.

In short, the discourse on challenges to tobacco control from commitments to international economic agreements has focused more on their theoretical implications. Many interviewees noted that they were following the dispute on Australia’s plain packaging - to which Brazil is an official third party in the WTO dispute - particularly because health authorities have raised the possibility of developing such a policy in Brazil; but even in the case of Brazil’s tobacco additives ban, there was no sense of deep concern.

Discussion: a legal analysis

Though the previous section demonstrates that the overall perception among those involved in tobacco control in Brazil is not one of alarm, it is still worthwhile to examine which objective concerns may exist. We thus examined Brazil’s existing commitments from a more traditional legal perspective and how new commitments may extend them, plus the implications and challenges for tobacco control.

First, the broader statutory context: the preamble to the WHO-FCTC states that parties are “determined to give priority to their right to protect public health” Article 2.2 states that the agreement does not affect parties’ rights to enter into other international agreements provided that they are compatible with the WHO-FCTC. Some argue that the effect of 2.2 is that the WHO-FCTC supersedes any subsequent treaties in case of a conflict 30. The reality has proven to be more complex. For example, in the dispute over Australia’s plain, standardized packaging, while the WTO is likely to interpret the WHO-FCTC as it did in the recent US vs Clove Cigarettes dispute, WTO panels interpret and apply WTO law, including provisions that address health issues.

Brazil is a member of the WTO, the central multilateral regime that governs international trade. Under the WTO-covered agreements, members have agreed to upper limits on tariffs for imported goods as well as a variety of non-tariff trade barriers such as those involving domestic regulations. The WTO Agreement also includes an agreement that requires minimum standards of protection for intellectual property rights.

Within the WTO, members are permitted to enter into further agreements that actually increase the level of liberalization. In addition to its current membership in the Common Market of the South (MERCOSUR), Brazil is also negotiating free trade agreements. Although the precise features of each agreement have not been developed, newer free trade agreements often include extra trade and investor protections that emphasize regulatory harmonization, higher standards of intellectual property rights protection, and investment protection.

The first risk posed by new agreements pertains to the current central thrust of many free trade agreements: lowering tariffs beyond WTO obligations. It is possible that lower tariffs could lead to an increase in cheaper imported tobacco products that also heighten market competition, although it is difficult to predict. Currently, only about 1% of tobacco products in Brazil are imported 31. However, it is difficult to accurately predict the effect of further tariff reductions. Some facts - including a 14% import tariff on raw tobacco and 20% on imported manufactured tobacco products - point to the fact that Brazilian domestic producers have been protected from competition by existing tariffs.

But other facts suggest a different scenario. First, products manufactured in neighboring countries can enter Brazil tariff-free (including MERCOSUR partners Argentina, Bolivia, Paraguay, Uruguay, and Venezuela, as well as regional trading partners Chile, Colombia, Cuba, Ecuador, and Peru). Second, although British American Tobacco - through its domestic subsidiary Souza Cruz - continues to dominate Brazil’s domestic tobacco products market, at least two other international tobacco firms, Philip Morris International and Japan Tobacco International, have existing domestic presences in part through foreign direct investment (FDI). In other words, competition exists, and it is not clear that lower tariffs would markedly affect pricing. There is also a minimum price policy in effect that may limit competition on the basis of price. If anything, lower import tariffs would be more likely to affect higher-value brands that could face new competition from cheaper imports.

As for tobacco leaf production, although most cigarettes in Brazil are produced domestically, it is unlikely that lowering tariffs would lead to lower prices on tobacco products. A key reason is that leaf comprises only a small proportion of the overall cost of making a cigarette 32. A second major reason is that Brazil’s position as a major exporter of tobacco leaf suggests that its leaf products are already very globally competitive (United Nations Commodity Trade Statistics Database. http://comtrade.un.org/db/, accessed on 19/Aug/2015).

The proliferation of agreements on investment issues, particularly bilateral investment treaties (BITs), has generated grave concern in public health circles because they often afford strong investor protection. Notably, although Brazil has negotiated a number of investment treaties, it has traditionally not ratified those agreements because Congress has not accepted them. More recent agreements with countries including Mozambique and Angola exclude investor-to-state dispute settlement (preferring state-to-state claims), do not provide protection against indirect expropriation, and have other features designed to protect policy space. Brazil has observed challenges to its neighbors through BITs - including in Uruguay over tobacco product labeling. Many observers point to Brazil as a country that successfully attracts FDI without such agreements. Importantly, however, many of Brazil’s successful multinational firms are investing abroad and putting pressure on the government from the investor side to enter into such agreements 33. The emergence of mega-regional free trade agreements also creates the prospect that Brazil will need to negotiate new agreements with the United States and Europe in order to ensure the competitiveness of Brazilian exports. In such a scenario, Congress will have to consider the extent to which it is prepared to have its actions restrained by investment treaties.

Commitments to intellectual property protection in future international economic agreements could also pose new challenges for the protection of public health policies. For example, the provision of rights to use trademarks could affect efforts to regulate tobacco packaging and labeling. In particular, if new agreements grant so-called “positive rights” to brands that use locations, specific words, colors, figurative elements, signs and/or indications, efforts to introduce plain, standardized packaging of tobacco products could be affected. One dynamic that favors health policy, however, continues to be Brazil’s vocal promotion of preserving policy space to protect human health - particularly around access to medicines - within commitments to protect intellectual property.

In recent negotiations on new major international economic agreements - including the Trans-Pacific Partnership -, there have been lively discussions on ways to create so-called “regulatory coherence” among parties 34. One set of solutions centers on creating coordinating mechanisms that either drive parties toward harmonizing their regulatory approaches or help parties to recognize other parties’ diverging approaches to regulation (or combinations of both) 35. There are causes for concern for tobacco control in these scenarios. First, these new mechanisms might create legitimate transnational fora wherein the industry has better opportunities to influence governments, which is counter to the spirit of the WHO-FCTC, particularly Article 5.3. In fact, there is the possibility that the restrictions on industry participation in health policymaking compelled by the WHO-FCTC might not be taken seriously, or even at all, in such processes. Second, harmonization might actually serve to drive standards down, particularly if parties conceptualize less regulation as a means to reduce trade restrictions.

Limitations

Although we are confident that we have reached data saturation because we were able to reach all the suggested informants from the snowball sample, the informants were ultimately identifying one another as key actors and the themes identified by the informants and documents had considerable consistency, the nexus of trade and health policy is a dynamic one. Although the situation is stable in the experience of these informants, it could change due to external variables, such as a new economic agreement or a major turnover in government players. In fact, our study’s potential limitations largely mirror the discussion above, suggesting that the favorable situation for health in the current economic environment could change.

Conclusion

Many of the individuals - both in and out of government - in Brazil working at the intersection of health and economic policymaking continue to express confidence that the existing system permits the protection of public health within the government’s efforts to trade and invest more openly in the international system. Recent experiences, particularly with the country’s efforts to enforce a ban on tobacco additives, suggest that this conceptualization is reasonable.

While there are reasons for optimism, there is also ample evidence that the nature of trade agreements is changing rapidly, and as a result, Brazilian policymakers need to remain keenly aware - perhaps even vigilant - as they enter into new agreements. For example, the agreements to which Brazil is currently a party do not have the levels of investor or intellectual property protection that are now found in some other international agreements. While the relevant policymakers are evidently aware of these new potential pitfalls and Brazil has a history of resisting agreements that impinge on policy space, the pressure to join these agreements in a highly globalized world will be great, thus the need for policymakers to remain alert.

Acknowledgments

The authors wish to acknowledge Profs. Valeska de Carvalho Figueiredo and Silvana Rubano Turci of Center fou Studies on Tobacco and Health, Sergio Arouca National of Public Health, Oswaldo Cruz Foundation (CETAB/ENSP/Fiocruz), Carla Ferraro for her administrative support, and Yasmín Salazar for her important research assistance earlier in this project, ACT-Brazil for generously providing time and a meeting space in Rio de Janeiro, all the key informants for generously donating their precious time and knowledge; the Institute for Global Tobacco Control at the Johns Hopkins University (JHU) Bloomberg School of Public Health for funds provided through the Bloomberg Initiative to Reduce Tobacco Use. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the Bloomberg Philanthropies or the JHU Bloomberg School of Public Health.

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Received: October 13, 2015; Revised: February 22, 2017; Accepted: March 09, 2017

* Correspondence S. A. Bialous University of California. 3333 California Street, suite 340, San Francisco, CA 94118, U.S.A. stella.bialous@ucsf.edu

J. Drope contributed to the project’s conceptualization, development of the study instrument, data collection and analysis, and drafting of the manuscript. B. McGrady contributed to the project’s conceptualization, data collection and analysis, and as co-leader in drafting the manuscript. S. A. Bialous contributed to the data collection and analysis and revision of the manuscript. R. Lencucha contributed to the project’s conceptualization, data collection and analysis, and revision of the manuscript. V. L. Costa e Silva contributed as project leader in Brazil, conceptualization, data collection and analysis, and drafting of the manuscript.

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