International, European and National Challenges
Edited by Lukasz Gruszczynski
This chapter introduces the theme of the book. In this context, it looks at the variety of approaches taken by regulators around the globe with respect to e-cigarettes, as well as at the science that stands behind specific regulatory choices. It also delimits the scope of the book and clarifies terminological nuances. Against this background, the chapter summarizes and critically assesses the findings of the individual authors relating to: (i) the factors that influence the particular paths taken in different jurisdictions; (ii) general features of an optimal regulatory model for e-cigarettes; and (iii) constraints imposed by international and European rules on regulators in this policy space. The chapter also offers some general observations as to the possible future directions of e-cigarette regulation.
The Framework Convention on Tobacco Control (FCTC) is an international treaty that sets global standards for national tobacco control measures. It is widely seen as a major achievement of the global community in the area of public health. However, the emergence of e-cigarettes poses serious conceptual challenges for the Parties as to their proper classification (and subsequent legal treatment) under the Convention. In this context, the chapter investigates whether and to what extent the FCTC disciplines apply to e-cigarettes and whether the mandate enjoyed by the FCTC Conference of the Parties (COP) is sufficiently broad to deal with these products. It concludes that due to the formulation of the relevant provisions, the complex nature of e-cigarettes, and the COP’s unwillingness to take a decisive stance on their status, the Convention regime currently has only a limited impact on the development of legal standards in this policy space.
This chapter critically analyses the role that international economic law (IEL) dispute settlement bodies (DSBs) play in the field of tobacco control. In particular, it looks at the recent case law of the World Trade Organization and ad hoc investment tribunals that dealt with the national tobacco control measures. The chapter seeks to demonstrate that IEL DSBs recognize the importance of public health policies relating to tobacco control, and that through their recent decisions, they have actually broadened, rather than undermined, the regulatory space available to States. In this context, the chapter identifies four specific strategies taken by the DSBs: (a) recognizing the sovereign right of States to regulate in the area of tobacco control; (b) clarifying the scope of IEL obligations in a manner sympathetic to public health; (c) accepting the limited scope of DSBs’ review in health-related disputes that involve complex scientific and political questions; and (d) relying on the Framework Convention on Tobacco Control and its guidelines as evidence of fact. Consequently, if a specific domestic measure is found illegal in the course of proceedings, this is due to its discriminatory character or poor regulatory design and not because of any specific IEL hierarchy of values (for example trade and investment protection above public health).