Two papers to mention here. First up, Andrew Mitchell and Tania Voon have posted "Regulating Tobacco Flavours: Implications of WTO Law" on SSRN. Here's the abstract:
Within the World Trade Organization (‘WTO’), regulatory measures of Canada and the United States restricting ‘flavouring’ of tobacco products including cigarettes with additives such as chocolate, clove and sweeteners are under challenge. At the same time, the tobacco lobby continues to target other tobacco control measures on the basis that they violate international trade or investment law, including Australia’s plain packaging proposal, Uruguay’s stricter labelling requirements, and Norway’s display ban. The WTO-consistency of regulatory restrictions on tobacco flavouring provides an informative case study of the relationship between tobacco control and international economic law. The WTO’s General Agreement on Tariffs and Trade 1994 and Agreement on Technical Barriers to Trade grant WTO Members significant flexibility in implementing genuine health measures including these kinds of restrictions. Nevertheless, to ensure WTO-consistency, tobacco flavouring measures must be carefully designed to achieve their health objectives based on available scientific and empirical evidence, avoiding unnecessary discrimination against or between imported tobacco products and unjustified barriers to international trade. Exemptions for additives that cause direct or indirect harm by masking tobacco harshness, attracting certain groups of consumers such as young people, or increasing the toxicity or addictiveness of tobacco products, are likely to undermine a Member’s health goals and in turn its claim of WTO-consistency.
From the conclusion:
the consistency of a flavouring measure with WTO law will depend heavily on the link that can be demonstrated between the measure and its health objective. This demonstration will require sufficient qualitative and qualitative evidence concerning the difference between flavoured and non-flavoured products, the additional direct or indirect harm caused by flavoured products when compared to non-flavoured products, the predicted or verified impact of the flavouring measure or similar regulatory measures on consumption patterns, the availability of alternative regulatory measures that have the same health effects without infringing on international trade or foreign investment to the same degree, and the consistency of the State’s laws and practices (including its participation in the FCTC) with its declared health objectives.
And here was my favorite line from the paper:
... WTO caselaw does not clearly and consistently explain how to determine whether imported products are treated less favourably than like domestic products.
Unfortunate, but true, I would say. There are some cases coming up where we might get some clarification.
And second, Andrew by himself has posted "The TRIPS-Consistency of Australia's Move Towards Plain Cigarette Packaging". His conclusion:
Concerns raised by tobacco companies about plain packaging breaching international trade obligations must be critically examined. In the light of Australia‘s intention to introduce plain packaging of cigarettes by 1 July 2012, this article has argued that plain packaging is consistent with the TRIPS Agreement. Under this treaty, WTO Members retain a high degree of regulatory autonomy to enact measures to protect and promote public health. Details of the Australian proposal are yet to be released, and may be affected by the still uncertain outcome of the 2010 federal election in Australia. However, a strong argument can be made that the general move towards plain packaging in Australia and elsewhere falls within the scope of permissible regulation under Article 20 of the TRIPS Agreement. Concerns about plain packaging violating the TRIPS Agreement should not prevent WTO Members from placing plain packaging firmly on the public health agenda.
