The Regulation of E-cigarettes
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The Regulation of E-cigarettes

International, European and National Challenges

Edited by Lukasz Gruszczynski

Combining the insights of leading legal scholars and public health experts, this unique book analyses the various legal problems that are emerging at different levels of governance (international, European and national) in the context of the regulation of e-cigarettes. The expert authors assess in depth the possible application of the precautionary and harm reduction principles in this area, examine the legal constraints imposed on states by international and European rules, as well as the regulatory approaches currently in place in selected national jurisdictions.
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Chapter 6: A ban on electronic nicotine delivery systems: step one in the WTO discrimination analysis

Marina Foltea and Bryan Mercurio

Abstract

Some countries regulate ENDS in the same way as traditional tobacco products, while others classify them as medicinal products or create a sui generis category subject to unique rules. A number of countries have simply prohibited their sale and possession. Although ENDS definitely require a regulatory response, applying highly trade restrictive measures to them may potentially damage business operators, while governments may be missing an opportunity to tackle the tobacco epidemic. Just as with any other product, highly trade restrictive measures may not be allowable under the system established by the WTO. Against this background, this chapter examines the applicability of the WTO nondiscrimination provisions to cases where a general ban on trade in ENDS is adopted. It is argued that so long as cigarettes are traded freely across borders, it is not at all obvious that a ban on ENDS will be compliant with the WTO rules.

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