The plain packaging of tobacco products and its recognition by the WTO as a legitimate policy measure for the protection of public health

Abstract

Introduction: the adoption by the WTO DSB of the Panel Reports that resolved the disputes against the Australian tobacco plain packaging scheme unveil important aspects of international health law intertwined with international trade law. Objectives: this paper aims at understanding the concept of plain packaging and the scope of the WTO decision for countries envisaging the adoption of similar measures in policymaking. The research questions are descriptive and encompass how the position expressed by the WTO DSB affects the WHO FCTC and what legal reasoning the referred decision used. Methodology: a historical method is employed to identify the origins of plain packaging and the main concerns and challenges surrounding it, whilst a discursive analysis of the Panel Reports allows an interpretation of its basic principles and possible implications for public health policies. Results and discussion: from a microeconomic policy analysis, the standardization of tobacco packets is a reasonable regulatory approach at a government’s disposal for addressing welfare losses due to externalities and internalities. Although there is no consensus on the empirical evidence supporting plain packaging, its assessment by the WTO Panel played a vital role in the decision rendered, notably with respect to Article 2.2 of the TBT Agreement and Article 20 of the TRIPS Agreement. Conclusion: Honduras and Dominican Republic have appealed and consequently a final ruling is still pending. Nonetheless, the decision is so far a recognition under WTO law of a State’s regulatory autonomy to implement the necessary measures on behalf of public health.