In the last post, I wondered why the TPP tobacco carveout from ISDS would let e-cigarettes off the hook. But maybe it won't. Somebody pointed out to me that nicotine is usually extracted from tobacco, and that the language of the carveout may actually be broad enough to cover all products derived from tobacco. This would mean that, arguably, e-cigarettes -- at least those with nicotine -- would qualify for the carveout, and thus a future plain packaging law for e-cigarettes would be covered.
But of course, all of this is open to interpretation. A key question might therefore be, who does this interpretation? Is the tobacco carveout self-judging? Or, alternatively, when a foreign investor makes a claim against a particular regulation, would the tribunal have to rule on whether the measure falls under the tobacco carveout?
