Under the TBT Agreement Article 2.2 claim in the WTO plain packaging dispute, one issue will be whether there are alternative anti-smoking measures that could achieve the same purpose. As the Appellate Body put it in the recent COOL Article 21.5 report:
5.199. A complainant may seek to identify a possible alternative measure that is less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably available, as part of making its prima facie case that a technical regulation is more trade restrictive than necessary.
So how would public shaming of smokers be evaluated as an alternative measure:
On Monday, the capital city of Beijing launched a tough ban that prohibits smoking in indoor public places and workplaces. As part of the campaign, it unfurled giant stop smoking banners over the iconic Bird's Nest sports stadium, advised people to use an elaborate set of hand signals to tell those in their proximity to stop smoking, and raised fines for those caught smoking.
With more than 300 million smokers -- nearly the size of the U.S. population -- China is the world's largest tobacco consumer. The government estimates that another 740 million of its citizens are exposed to second-hand smoke and more than one million people in the country die from smoking-related diseases each year. In 2008, as part of its clean up campaign for the Olympics, the capital of Beijing for the first time required public places like restaurants, bars and hotels to provide smoke-free areas or rooms.
Back then, the consequences for businesses could be harsh, with fines of up to $725, but for individuals the consequences seemed to be almost an afterthought. Officials said at the time that if they were caught but tobacco control supervisors they could "try to dissuade" them and they don't comply, they could fine them about 10 renminbi, about $1.40 then or $1.60 today.
That changed as of Monday, when the government announced it would increase the fine to 200 yuan and take more dramatic measures by posting the names of those breaking the law three times on a Web site in order to shame them. (emphasis added)
