Chapter 7: The WHO FCTC as an international standard under the WTO Agreement on Technical Barriers to Trade
The legality of national tobacco control measures is increasingly being tested in different international forums. A subsidiary of Phillip Morris recently initiated an arbitration proceeding under a bilateral investment treaty (BIT) against Australia, seeking compensation for unlawful expropriation resulting from the introduction of a new law on plain packaging. A similar complaint was lodged against Uruguay under the Swiss-Uruguay BIT concerning the size and content of mandatory pictorial warnings on tobacco product packages. The World Trade Organization (WTO) has also become an important arena wherein international tobacco companies indirectly challenge various municipal health measures. At the beginning of 2012, as discussed in Chapter 6 of this volume, the WTO adjudicating bodies were required to decide a dispute relating to the United States’ (US) ban on the production, sale and importation of flavoured cigarettes (including clove cigarettes). More recently, a number of WTO members initiated a formal dispute settlement proceeding against Australia in response to its plain packaging law. Other disputes, relating to the contents of cigarettes and other tobacco-related regulatory measures, lie ahead. The Agreement on Technical Barriers to Trade (TBT Agreement) is probably the most important piece of WTO law when it comes to assessing national tobacco control measures. Although it acknowledges WTO members’ broad regulatory discretion, it also establishes certain parameters for national technical regulations, having regard to their effect on international trade.
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