By Pedro Villarreal, Max Planck Institute for Comparative Public Law and International Law, villarreal@mpil.de, and Brigit Toebes, University of Groningen,

In June 2018, the WTO – Tobacco Plain Packaging panel reports were published. The four reports contain the findings of the WTO panels in the disputes launched in 2012­–2013 by Honduras, the Dominican Republic, Cuba, and Indonesia, against the introduction of plain tobacco packaging in Australia. This blog post provides some overall reflections on the outcomes of this case. The starting point for these reflections is a side event organised by the Global Health Law Committee of the International Law Association (ILA) on Tuesday 21 August 2018, during the ILA’s biannual conference in Sydney.

 Tobacco ‘plain packaging’ means packaging from which most of the branding designs have been removed (e.g. colours, trademarks, corporate logos). Manufacturers are only allowed to print the brand name in a mandated manner, in addition to the health warnings and other legally mandated information that the package may have. (1) Honduras, the Dominican Republic, Cuba, and Indonesia challenged the introduction of such packaging by Australia, which resulted in a procedure that has so far lasted six years, resulting in an 880-page report from the WTO panel (hereinafter referred to as ´TPP Panel Reports´). (2)

As mentioned, the ILA’s Global Health Law Committee organised a side event on this matter during the ILA’s biennial conference in Sydney on 21 August this year. Aside from Professor Brigit Toebes, one of the authors of this post, several high-level experts were invited as speakers to this event, i.e. Jonathan Liberman (McCabe Centre for Law and Cancer, Australia), Natasha Spisbah (Department of Foreign Affairs and Trade, Australia), Professor Tania Voon (University of Melbourne, Australia), and Edward Kwakwa (World Intellectual Property Organisation, Switzerland). The session was chaired by Professor Frederick Abbott, co-Chair of the Global Health Law Committee. Without discussing their specific views in this blog post, it is clear that there is a wealth of knowledge and experience available among Australian scholars and practitioners from which other countries may profit.

While the outcome of these reports is favourable to Australia, there are a number of legal matters that offer much fruit for further discussion and debate. In this blog post, we offer some brief reflections on these issues from the perspective of global health law.

An important question concerned the applicability of The Framework Convention on Tobacco Control (FCTC) in the present case. (3) This treaty, which was adopted within the framework of the WHO in 2005, sets standards in the field of tobacco control which are further defined in a set of Guidelines and Recommendations. Given that the applicants – as tobacco-producing nations – have not ratified this treaty, the question of whether this treaty has legal value in WTO disputes arose in the present case. After lengthy deliberations, the Panel concluded that the FCTC and its Guidelines could be relied upon for their evidential value, but not for their legal one, particularly by not constituting ‘relevant international standards’ for the purposes of Article 2.5 of the Technical Barriers to Trade Agreement (TPP Panel Reports, para. 7.402). To justify its evidential value, the Panel stresses the fact that the FCTC has been ratified by more than 180 States (TPP Panel Reports, para. 7.416). It may be considered somewhat disappointing that the panel was unwilling to take the FCTC on board as a legal instrument, given the almost global ratification of this treaty. This is perhaps related to the fact that, as seen in other cases, (4) both the WTO Panels and its Appellate Body have declined to engage in a legal assessment of other international instruments beyond the aegis of the GATT/WTO and ‘covered agreements’, under standard terms of reference. The TPP Panel Reports thus allude to the Panel´s ‘limited mandate’ (TPP Panel Reports, para. 7.417).

On the other hand, this does not mean that the evidentiary weight given to the FCTC and its corresponding Guidelines is devoid of value. In previous disputes within the WTO, the FCTC´s Guidelines had been taken as a sign of a ‘growing consensus’ within the international community in favour of stronger tobacco-control measures. (5) As discussed in the Global Health Law Committee´s side event during the ILA Biennial Conference in Sydney, although the FCTC and its Guidelines are only appraised as evidentiary weight and not in light of their normative status, the burden of proof for contesting the effectiveness of Australia´s measures lied with the complainants (TPP Panel Reports, para. 7.404). Hence, this burden did become heavier, in light of the fact that the FCTC and its Guidelines were on Australia´s side. In turn, this leads to the question of to what extent could similar trade-related measures be justified under GATT/WTO law for other products that have a negative impact on health (e.g. sugar, alcohol), but for which no Framework Conventions have been adopted thus far.

A final caveat is in order: The TPP Panel Reports are currently under appeal. (6) Consequently, at this point it is not possible to ascertain the ultimate outcome of the case. Whether the Appellate Body will uphold or reverse the findings, or perhaps only reinterpret parts of the Panel´s reasoning, remains to be seen. Given the current state of the Appellate Body, down to 4 Members out of a total of 7, (7) its own report may be considerably delayed. The ultimate fate of the FCTC´s weight in the WTO – Plain Packaging case is still pending.

Disclosure :  Brigit receives funding from the Dutch Cancer Society for research into the rights of children in the context of tobacco control. The funder is not involved in any stage of the research.

Notes

• For the specific requirements in Australia according to the Tobacco Plain Packaging Act and Regulations, see respectively https://www.legislation.gov.au/Details/C2011A00148
  and
  https://www.legislation.gov.au/Details/F2011L02644
• WTO – Tobacco Plain Packaging, Panel Reports, available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds435_e.htm
• Other blog posts have also dealt with this issue. See https://www.ejiltalk.org/lessons-from-the-wto-plain-packaging-reports-the-use-of-the-evidence-based-who-framework-convention-on-tobacco-control-as-evidence-in-international-litigation/
• See notably WTO – Soft Drinks, Appellate Body Report, para. 56.
• WTO – Clove Cigarettes, Panel Report, para. 7.230.
• As at 26 August 2018, Honduras and the Dominican Republic have filed appeals against the Panel Reports. See the corresponding news at the WTO´s webpage: https://www.wto.org/english/news_e/news18_e/ds441apl_23aug18_e.htm
• See the list of current Appellate Body members at https://www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm