This is the abstract of a paper by Marina Foltea and Anna Markitanova:
The regulation of e-cigarettes is a relatively new topic and the optimal regulation of these products is not yet fully understood. Evaluations are underway on many aspects linked to these products, for example: their safety, potential health risks, illicit trade, and advertising. Given the WHO-promoted regulatory option to ban e-cigarettes, this paper examines another topic, emerging at the intersection of international health and trade law, that is the legal challenges which may arise under the WTO following a complete ban of e-cigarettes (herein forth called new products).
In particular, the analysis considers the consistency with WTO law of a hypothetical ban on the importation, distribution, sale and offering for sale of these products – a measure that is either being contemplated or already implemented in some domestic jurisdictions. In this context, the paper assesses the ‘likeness’ of new products and regular cigarettes and examines such a measure under other standards developed within the GATT 1994 and TBT Agreement (e.g. the aim-and-effect test, necessity and legitimate regulatory distinction). It finds that new and conventional tobacco products may be ‘like’ under WTO law and in the event no justification is found by the regulating Member under the GATT Article XX General Exception provisions, an importation ban on new products risks being found WTO inconsistent.
A trade case on e-cigarettes may not be too far off. I see plenty of vaping going on these days, and presumably there are potential trade conflicts out there.
