This was probably inevitable:
WESTMINSTER, Mass. (AP) — The cartons of Marlboros, cans of Skoal and packs of Swisher Sweets are hard to miss stacked near the entrance of Vincent's Country Store, but maybe not for much longer: All tobacco products could become contraband if local health officials get their way.
This sleepy central Massachusetts town of 7,700 has become an improbable battleground in America's tobacco wars. On Wednesday, the Board of Health will hear public comment on a proposed regulation that could make Westminster the first municipality in the United States to ban sales of all tobacco products within town lines."To my knowledge, it would be the first in the nation to enact a total ban," said Thomas Carr, director of national policy at the American Lung Association. "We commend the town for doing it."
Taxes have been raised; health warnings added; appealing camels have been taken off cigarette packaging in Australia. Banning the sale of tobacco products was the next logical step. It will be interesting to see if this measure is enacted.
No doubt there will be challenges to this sort of action under domestic law, especially if it spreads to larger jurisdictions. And yes, the industry is monitoring this:
David Sutton, a spokesman for Richmond, Virginia-based Altria Group Inc., owner of the nation's biggest cigarette maker, Philip Morris USA, called the proposal a "bad policy" that will harm local employers.
"We believe businesses should be able to choose which products they carry," Sutton said. "If the ban were to be implemented, adult tobacco and e-vapor consumers could shift their purchases to neighboring stores. The proposed regulations, if enacted, would fundamentally alter these businesses and would likely cost Westminster jobs."
But for this blog, the question is, what are the trade and investment law implications?
At the WTO, I'm not sure how you make out a credible discrimination claim, but it certainly is trade-restrictive, so is this the kind of measure that might violate TBT Article 2.2?
And then in the investment law context, is this regulatory expropriation? And is the treatment of foreign investors under such a measure "fair and equitable"?
Of course, maybe none of this matters if in 10 years everyone is smoking e-cigarettes anyway.
