Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-26T17:37:32.145Z Has data issue: false hasContentIssue false
  • English
  • Français

Safeguards for Tobacco Control: Options for the TPPA

Published online by Cambridge University Press:  06 January 2021

Robert Stumberg
Robert Stumberg*
Affiliation:
Georgetown University Law Center
Get access Rights & Permissions [Opens in a new window]

Extract

With tobacco trade, the past is prologue. In the 1980s, the U.S. government used domestic trade remedies (“Super 301”) to pry open markets for U.S. tobacco companies. The targets included Japan, South Korea, Taiwan, and Thailand. A grateful tobacco industry donated a renovation of the Treaty Room in the U.S. Department of State, declaring at the dedication: “Tobacco is intimately and historically associated with American diplomacy.”

Thailand responded by banning imported cigarettes on grounds that the imports were more addictive and marketing of imports was driving up consumption. The United States then challenged Thailand for violating the General Agreement on Tariffs and Trade (GATT). The GATT panel ruled against Thailand, finding that the import ban failed to satisfy the health exception of GATT Article XX.

Type
Article
Information
American Journal of Law & Medicine , Volume 39 , Issue 2-3 , June 2013 , pp. 382 - 441
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See COUNCIL ON SCIENTIFIC AFFAIRS, AM. MED. ASS'N, IMPACT OF U.S. TOBACCO EXPORTS ON THE WORLDWIDE SMOKING EPIDEMIC 1-3 (1989), available at http://legacy.library.ucsf.edu/tid/zyn52f00/pdf;jsessionid=8E44A3B350560BC29FC6DCBD7ACE6B0C.tobacco03; see also Connolly, Greg N., Tobacco and United States Trade Sanctions, in SMOKING AND HEALTH 1987, at 351, 351-54Google Scholar (Masakazu Aoki et al. eds., 1988); Shaffer, E. R. et al., International Trade Agreements: A Threat to Tobacco Control Policy, 14 TOBACCO CONTROL (Supp. II) ii19, ii21–ii22 (2005)Google ScholarPubMed.

2 Taylor, Allyn et al., The Impact of Trade Liberalization on Tobacco Consumption, in TOBACCO CONTROL IN DEVELOPING COUNTRIES 343, 355 (Jha, Prabhat & Chaloupka, Frank eds., 2000)Google Scholar.

3 Zoë Davidson & Maud S. Beelman, U.S. Support for Tobacco Overseas: Going Out of Business?, CTR. FOR PUB. INTEGRITY (Nov. 2, 1999), http://www.publicintegrity.org/1999/11/02/3328/us-support-tobacco-overseas-going-out-business.

4 Panel Report, Thailand–Restrictions on Importation of and Internal Taxes on Cigarettes, ¶¶ 78-81, DS10/R–37S/200 (Oct. 5, 1990).

5 PRABHAT JHA ET AL., THE WORLD BANK, CURBING THE EPIDEMIC: GOVERNMENTS AND THE ECONOMICS OF TOBACCO CONTROL 14-15 (1999); see Chaloupka, Frank J. & Laixuthai, Adit, U.S. Trade Policy and Cigarette Smoking in Asia 12-15 (Nat’l Bureau of Econ. Research, Working Paper No. 5543, 1996)CrossRefGoogle Scholar; DOUGLAS BETTCHER ET AL., COMM’N FOR MACROECONOMICS & HEALTH, CONFRONTING THE TOBACCO EPIDEMIC IN AN ERA OF TRADE LIBERALIZATION 51-53 (2001); CAMPAIGN FOR TOBACCO-FREE KIDS, PUBLIC HEALTH AND INTERNATIONAL TRADE VOLUME II: TARIFFS AND PRIVATIZATION 7-8 (2002); BENN MCGRADY, WORLD HEALTH ORGANIZATION, CONFRONTING THE TOBACCO EPIDEMIC IN A NEW ERA OF TRADE AND INVESTMENT LIBERALIZATION 26 (2012) (“[T]he literature has reached a point where it is safe to assume that there is a risk that trade liberalization and foreign direct investment may stimulate competition and consumption in the tobacco sector and consumer demand.”).

6 See Taylor et al., supra note 2, at 356-57.

7 Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, § 510, 123 Stat. 3034, 3151.

8 Exec. Order No. 13193, 66 Fed. Reg. 7387 (Jan. 18, 2001).

9 For a definition of coherence, see MCGRADY, supra note 5, at 79.

10 Letter from Rep. Henry A. Waxman, Rep. Lloyd Doggett, and Sen. Richard Durban to President George W. Bush 2 (Nov. 18, 2003).

11 See, e.g., United States-Peru Trade Promotion Agreement, U.S.-Peru, ch. 2, Annex 2.3, Apr. 12, 2006, OFFICE OF THE U.S. TRADE REPRESENTATIVE [USTR], http://www.ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text [hereinafter U.S.-Peru FTA] (see item number 24012083; description: Cigarettes containing tobacco but not containing clove, paper-wrapped; base rate: $1.05/kg + 2.3%; category for reduction: A; negotiations to eliminate tariffs on processed tobacco leaf and cigarettes would eliminate the tariff under Annex 2.3.1(f)); U.S. INT’L TRADE COMM’N, HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (REV. 1) ch. 24 (2010) (see Heading number 2402.20.80; Article description: cigarettes containing tobacco, other: paper wrapped; Rate of duty: general – $1.05/kg + 2.3%; Rate of duty: special – free), available at http://www.usitc.gov/publications/docs/tata/hts/bychapter/1001C24.pdf. For HTS8 classifications 24011021 to 24039990, see U.S.-Peru FTA, supra.

12 Bollyky's summary recaptures the American Medical Association's findings from twenty-three years earlier, before the Doggett Amendment and E.O. 13193. Compare Memorandum from Thomas J. Bollyky on Forging a New Trade Policy on Tobacco, Council on Foreign Relations, Policy Innovation Memorandum No. 7, at 3 (Aug. 18, 2011) [hereinafter Bollyky Memo], available at http://www.cfr.org/trade/forging-new-trade-policy-tobacco/p25658, with COUNCIL ON SCIENTIFIC AFFAIRS, supra note 1, at 1-3.

13 Press Release, USTR, Remarks by Ambassador Ron Kirk at the Washington International Trade Association (Dec. 15, 2009), http://www.ustr.gov/about-us/press-office/speeches/transcripts/2009/december/remarks-ambassador-ron-kirk-washington-inte.

14 Tobacco Fact Sheet N°339, WORLD HEALTH ORG. (May 2012), http://www.who.int/mediacentre/factsheets/fs339/en/index.html#.

15 While endorsing zero tariffs for all products, the Office of the U.S. Trade Representative told Representative Doggett that it plans to comply with the Doggett Amendment. Ways and Means Members Press Marantis on Tobacco Treatment in TPP, INSIDE U.S. TRADE, Dec. 15, 2011.

16 WHO Framework Convention on Tobacco Control, opened for signature, June 16, 2003, 2302 U.N.T.S. 166 [hereinafter WHO FCTC]; see also World Health Organization Framework Convention on Tobacco Control, Guidelines for Implementation of Article 5.3 of the WHO Framework Convention on Tobacco Control, FCTC/COP3(7) (2008) [hereinafter WHO FCTC Article 5.3 Guidelines], available at http://www.who.int/fctc/protocol/guidelines/adopted/article_5_3/en/index.html (providing guidance on “the protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry”); World Health Organization Framework Convention on Tobacco Control, Guidelines for Implementation of Article 8 of the WHO Framework Convention on Tobacco Control, FCTC/COP2(7) (2007), available at http://www.who.int/fctc/protocol/guidelines/adopted/article_8/en/index.html (providing guidance on “the protection from exposure to tobacco smoke”); World Health Organization Framework Convention on Tobacco Control, Guidelines for Implementation of Article 11 of the WHO Framework Convention on Tobacco Control, FCTC/COP3(10) (2008) [hereinafter WHO FCTC Article 11 Guidelines], available at http://www.who.int/fctc/protocol/guidelines/adopted/article_11/en/index.html (providing guidance on “packaging and labeling of tobacco products”); World Health Organization Framework Convention on Tobacco Control, Guidelines for Implementation of Article 13 of the WHO Framework Convention on Tobacco Control, FCTC/COP3(12) (2008) [hereinafter WHO FCTC Article 11 Guidelines], available at http://www.who.int/fctc/protocol/guidelines/adopted/article_13/en/index.html (providing guidance on “tobacco advertising, promotion and sponsorship”); Roemer, Ruth, Taylor, Allyn & Lariviere, Jean, Origins of the WHO Framework Convention on Tobacco Control, 95 AM. J. PUB. HEALTH 936, 936-38 (2005)Google ScholarPubMed.

17 See generally Fazzone, Patrick B., The Trans-Pacific Partnership – Towards a Free Trade Agreement of Asia-Pacific?, 43 GEO. J. INT’L. L. 695, 734-43 (2012)Google Scholar (describing the TPP negotiations and stating that TPP will encourage free and open trade and investiment in the Asia-Pacific region).

18 Press Release, Office of the U.S. Trade Representative, Joint Statement from Trans-Pacific Partnership Ministers Meeting on Margins of APEC in Big Sky, Montana (May 2011), http://www.ustr.gov/about-us/press-office/press-releases/2011/may/joint-statement-trans-pacific-partnership-ministers-me.

19 JEFFREY J. SCHOTT, BARBARA KOTSCHWAR & JULIA MUIR, UNDERSTANDING THE TRANS-PACIFIC PARTNERSHIP 3 (2013).

20 Philip Morris Int’l, Submission of Philip Morris International in Response to the Request for Comments Concerning the Proposed Trans-Pacific Partnership Trade Agreement 1-2 (2010) [hereinafter PMI Submission], available at http://www.smoke-free.ca/trade-and-tobacco/Resources/TPPA/PMI%20comments%20on%20TPP_USTR-2009-0041-0016.1%5B1%5D.pdf.

21 Draft Trans-Pacific Partnership Agreement, Investment Chapter (June 2012) [hereinafter Draft TPPA Investment Chapter], available at http://www.citizenstrade.org/ctc/wp-content/uploads/2012/06/tppinvestment.pdf; Outlines of the Trans-Pacific Partnership Agreement, OFFICE OF THE U.S. TRADE REPRESENTATIVE, http://www.ustr.gov/about-us/press-office/fact-sheets/2011/november/outlines-trans-pacific-partnership-agreement (last visited Mar. 2, 2013).

22 Notice of Arbitration, Philip Morris Asia Ltd. v. Commonwealth, ¶ 8.3 (Nov. 21, 2011) [hereinafter Notice of Arbitration, PMA], available at http://www.ag.gov.au/Internationalrelations/InternationalLaw/Documents/Philip%20Morris%20Asia%20Limited%20Notice%20of%20Arbitration%2021%20November%202011.pdf; Request for Arbitration, FTR Holdings S.A. v. Uruguay, ICSID Case No. ARB/10/7 (Mar. 26, 2010) [hereinafter Request for Arbitration, FTR], available at http://www.smoke-free.ca/eng_home/2010/PMIvsUruguay/PMI-Uruguay%20complaint0001.pdf.

23 See Notice of Arbitration, PMA, supra note 22, ¶ 8.2 (“PM Asia seeks an order for the suspension of enforcement of plain packaging legislation … .”); Request for Arbitration, FTR, supra note 22, ¶ 88 (“[T]he Claimants respectfully request that the Arbitral Tribunal order the suspension of the application [of the packaging laws].”).

24 Notice of Arbitration, PMA, supra note 22, ¶ 7.3; Request for Abitration, FTR, supra note 22, ¶ 82.

25 Draft TPPA Investment Chapter, supra note 21, at art. 12.12, Annex 12-C, Annex 12-D.

26 Id. Annex 12-C. This text applies to expropriation claims, not claims asserting a violation of fair and equitable treatment.

27 Notice of Arbitration, PMA, supra note 22, ¶¶ 7.3-7.11; Request for Arbitration, FTR, supra note 22, ¶ 85.

28 Notice of Arbitration, PMA, supra note 22, ¶¶ 7.6-7.8; Request for Arbitration, FTR, supra note 22, ¶¶ 84-85.

29 2004 Model Bilateral Investment Treaty art. 5.2, Office of the U.S Trade Representative, http://www.ustr.gov/sites/default/files/U.S.%20model%20BIT.pdf (“The concept … of ‘fair and equitable treatment’ … do[es] not require treatment in addition to or beyond that which is required by [customary international law], and do[es] not create additional substantive rights.”); Draft TPPA Investment Chapter, supra note 21, at art. 12.6, Annex 12-B (discussing minimum standard of treatment and customary international law); see also, e.g., Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, ASEAN-Austl.-N.Z., ch. 11, art. 6(2)(c), Feb. 27, 2009, Austl. Dep't of Foreign Affairs & Trade, http://www.dfat.gov.au/fta/aanzfta/chapters/chapter11.html#fr6 [hereinafter ASEAN-Austl.-N.Z. FTA] (“[T]he concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required under customary international law, and do not create additional substantive rights.”).

30 R.R. Dev. Corp. v. Guatemala, ICSID Case No. ARB/07/23 80-91 (June 19, 2012).

31 See Brower, Charles H., II, Why the FTC Notes of Interpretation Constitute a Partial Amendment of NAFTA Article 1105, 46 VA. J. INT’L L. 347, 358 n.66 (2006)Google Scholar (“[T]o the extent that treaties codify existing custom, their content should influence the application of [FET provisions] … . Alternatively, the widespread adoption of multilateral or bilateral treaties may reflect state practice sufficient to influence the development of custom … .”); Moshe Hirsch, Sources of International Investment Law 26-27 (International Law Association Study Group on the Role of Soft Law Instruments in International Investment Law, Research Paper No. 05-11, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1892564 (“An examination of decisions rendered by investment tribunals indicates that investment tribunals that pronounce various customary rules are inclined not to discuss the existence (or lack of) of the separate components of ‘practice’ and ‘opinion juris’, and that they frequently rely on decisions of international courts and tribunals … .”); Stephan W. Schill, The Sixteenth Treaty Forum Public Conference: Is There an Evolving Customary International Law on Investment?, From Sources to Discourse: Investment Treaty Jurisprudence as the New Custom?, 2 (May 6, 2011) (“Investment treaty tribunals … generate and implement a multilateral structure for international investment relations … not by reference to customary international law, but by referencing their own jurisprudence.”).

32 PMI Submission, supra note 20, at 3 (the Singapore delegation of authority includes “[b]road language that provides the Minister with extensive discretionary power to ban a certain term, without stipulating the basis upon which this may be done”).

33 See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31 § 101(b)(3), 123 Stat. 1776, 1796 (2009) (codified as amended at 21 U.S.C. § 387f). Section 906(d)(1) of the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking Prevention and Tobacco Control Act, provides:

The Secretary may by regulation require restrictions on the sale and distribution of a tobacco product, including restrictions on the access to, and the advertising and promotion of, the tobacco product, if the Secretary determines that such regulation would be appropriate for the protection of the public health. The Secretary may by regulation impose restrictions on the advertising and promotion of a tobacco product consistent with and to the full extent permitted by the first amendment to the Constitution. The finding as to whether such regulation would be appropriate for the protection of the public health shall be determined with respect to the risks and benefits to the population as a whole, including users and nonusers of the tobacco product, and taking into account—

  • (A) the increased or decreased likelihood that existing users of tobacco products will stop using such products; and

  • (B) the increased or decreased likelihood that those who do not use tobacco products will start using such products.”

Id. (emphasis added).

34 Notice of Arbitration, PMA, supra note 22, ¶ 7.3; Request for Arbitration, FTR, supra note 22, ¶¶ 82-83; see also Memorandum from Lalive on Why Plain Packaging is in Violation of WTO Members’ International Obligations under TRIPS and the Paris Convention to Philip Morris Int’l Mgmt. S. Afr. ¶ 16 (July 23, 2009). See generally Legal Opinion prepared by Carla A. Hills, Mudge Rose Guthrie Alexander & Ferdon, for R.J. Reynolds Tobacco Co. and Philip Morris Int’l, Inc. with Regard to Plain Packaging of Tobacco Products Requirement Under International Agreements (May 3, 1994).

35 See Eric Crosbie & Stanton A. Glantz, Tobacco Industry Argues Trademark Laws and International Treaties Preclude Cigarette Health Warning Labels, Despite Consistent Legal Advice that the Domestic Argument is Invalid, TOBACCO CONTROL (Nov. 24, 2012), http://tobaccocontrol.bmj.com/content/early/2012/11/23/tobaccocontrol-2012-050569.full.html.

36 See Room Document from New Zealand to Working Party on Domestic Regulation, The Necessity Test in the Disciplines on Domestic Regulation, RD/SERV/39 (Feb. 9, 2011) [hereinafter N.Z., Necessity Test]; GARY CLYDE HUFBAUER ET AL., PETERSON INST. FOR ECON., POLICY BRIEF NO. 12-10, FRAMEWORK FOR THE INTERNATIONAL SERVICE AGREEMENT 43 (Apr. 2012); Doug Palmer, U.S. Says to Negotiate Services Trade Pact with EU, Japan, Others, REUTERS, Jan. 15, 2013, available at http://www.reuters.com/article/2013/01/15/us-usa-trade-services-idUSBRE90E0TI20130115.

37 See Draft TPPA Investment Chapter, supra note 21, sec. B n.20 (referring to Section B of the Draft Chapter on Investor-State Dispute Settlement); AUSTL. GOV't DEP't OF FOREIGN AFFAIRS & TRADE, GILLARD GOVERNMENT TRADE POLICY STATEMENT: TRADING OUR WAY TO MORE JOBS AND PROSPERITY 14 (Apr. 2011) (“The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products … .”).

38 See, e.g., JANE KELSEY, INTERNATIONAL TRADE LAW AND TOBACCO CONTROL: TRADE AND INVESTMENT LAW ISSUES RELATING TO PROPOSED TOBACCO CONTROL POLICIES TO ACHIEVE AN EFFECTIVELY SMOKEFREE NEW ZEALAND BY 2025, 29-31 (2012); Lindstrom, Beatrice, Scaling Back TRIPS-Plus: An Analysis of Intellectual Property Provisions in Trade Agreements and Implications for Asia and the Pacific, 42 J. INT’L L. POL. 917 (2010)Google Scholar; MCGRADY, supra note 5, at 37-38, 94; McGrady, Benn, TRIPS and Trademarks: The Case of Tobacco, 3 WORLD TRADE REV. 53, 68–69 (2004)Google Scholar; Mitchell, Andrew D., Australia's Move to the Plain Packaging of Cigarettes and Its WTO Compatibility, 5 ASIAN J. WTO INT’L HEALTH L. & POL’Y 405, 409-12Google Scholar; Mitchell, Andrew D. & Voon, Tania, Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law, 43 J. WORLD TRADE 571, 580-81 (2009)Google Scholar; Voon, Tania, Flexibilities in WTO Law to Support Tobacco Control Regulation, 39 AM. J.L. & MED. 199, 213-17 (2013)Google ScholarPubMed.

39 Press Release, Nat’l Foreign Trade Council, US Business Groups Issue Statement Expressing Deep Concern Following Announcement by the New Zealand Government of a Public Consultation to Review the Mandated Destruction of Trademarks and Branding in the Tobacco Sector (Apr. 20, 2012), http://www.nftc.org/newsflash/newsflash.asp?Mode=View&id=236&articleid=3466&category=All.

40 New Initiative Aims to Expand Reach of Fight to Counteract EU on GIs, INSIDE U.S. TRADE, Mar. 30, 2012, at 10-11; U.S., N.Z., Australia, Chile Work to Counter EU Initiative on GIs In TPP, INSIDE U.S. TRADE, Mar. 16, 2012, at 19. The Dominican Republic recently raised a similar argument during the TRIPS geographical indications (GI) negotiations that EU-type IP protections are necessary to allow it and other developing tobacco-producing nations the ability to exploit GIs like “Dominican Cigars,” and that plain packaging laws stand in the way of this. See Int’l Ctr. for Trade & Sustainable Dev., Australian Cigarette Packaging Law Hits a Nerve with Developing Countries, 15 BRIDGES WEEKLY TRADE NEWS DIGEST, June 15, 2011, available at http://ictsd.org/i/news/bridgesweekly/108710/.

41 Draft Trans-Pacific Partnership Agreement, Intellectual Property Chapter, art. 2(22) (Feb. 10, 2011) [hereinafter Draft TPPA IP Chapter], available at http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf. All tobacco companies have to do to use this type of protection is to make sure that not all of the tobacco actually originates from the place referenced in the product name. The full text reads:

Art. 2:22 – Each Party shall permit the use, and as appropriate, shall provide for the registration, of signs or indications that identify services or products other than wines or spirits, and that reference a geographical area that is not the true place of origin of the services or of the product, provided that:

  • (a) the sign or indication is used in a manner that does not mislead the public as to the geographical origin of the goods or services;

  • (b) use of the sign or indication does not constitute an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967);

  • (c) use of the sign or indication would not cause a likelihood of confusion with respect to an earlier-in-time similar or identical trademark or geographical indication that is used for identical or similar goods or services; and

  • (d) where a request for registration is concerned, the sign or indication is not a generic term for the associated goods or services.

Id.

The dairy industry sees Article 2(22) protections as an opportunity to block the EU's attempt to expand the WTO's TRIPS to protect products with place names as GIs. See BERNARD O’CONNOR, THE LAW OF GEOGRAPHIC INDICATIONS 50-51 (2006); DANIELE GIOVANNUCCI ET AL., INT’L TRADE CTR., GUIDE TO GEOGRAPHICAL INDICATIONS: LINKING PRODUCTS AND THEIR ORIGINS 16 (2009), available at http://www.intracen.org/policy/geographical-indications/. Compare the proposed U.S. language with proposed language for the EU-ASEAN FTA, which provides for “legal provisions laying down that registered names … (b) is protected against: … any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as ‘style,’ ‘type,’ ‘method,’ ‘as produced in’, ‘imitation’ or ‘similar.’” Draft European Union-ASEAN Free Trade Agreement, Intellectual Property Chapter, art. 7(6)(b) (2008) available at http://www.bilaterals.org/spip.php?article14281.

The draft IP chapter of the TPPA expands upon TRIPS in protecting elements of GIs: For purposes of this Chapter, geographical indications means indications that identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. Any sign or combination of signs (such as words, including geographical and personal names, as well as letters, numerals, figurative elements, and colors, including single colors), in any form whatsoever, shall be eligible to be a geographical indication. The term ‘originating’ in this chapter does not have the meaning ascribed to that term in Article__._ (Definitions).

Draft TPPA IP Chapter, supra note 41, at art. 2 n.4. This language in the TPPA provides evidence on the meaning of “signs” or “indications.” Notably, it expands on the TRIPS trademark possibilities to include single colors. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, art. 15(1); see also THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (referring to “figurative elements and combinations of colours as well as any combination of such signs”).

44 Draft TPPA IP Chapter, supra note 41, at art. 2.22 (explaining that the remedy would be to insert tobacco in the phrase, “products other than wines or spirits”).

45 See KELSEY, supra note 38, at 36.

46 General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 284 (1999), 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) [hereinafter GATS]; see MCGRADY, supra note 5, at 39.

47 Cross-border services is mode 1 in the GATS lexicon; the other three modes of supply covered under GATS are: (2) Consumption abroad; (3) Commercial presence; and (4) Presence of natural persons. GATS, supra note 46, at art. 1.2. Article 12.1.3(a) of the United States-Korea FTA provides, “Articles 12.4 [Market Access], 12.7 [Domestic Regulation], and 12.8 [Transparency] shall also apply to measures adopted or maintained by a Party affecting the supply of a service in its territory by a covered investment.” United States-Korea Free Trade Agreement, U.S.-Kor., ch. 12, art. 12.1.3(a), effective Mar. 15, 2012, Office of the U.S. Trade Representative, http://www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text [hereinafter U.S.-Kor. FTA] (emphasis added). The U.S.–Korea approach expands upon the U.S.-Peru FTA, in which Article 11.14 (Definitions) defines “cross-border trade in services” as “the supply of a service: (a) from the territory of one Party into the territory of another Party; (b) in the territory of one Party by a person of that Party to a person of another Party; or (c) by a national of a Party in the territory of another Party; but does not include the supply of a service in the territory of a Party by a covered investment.” United States-Peru Free Trade Agreement, U.S.-Peru, ch.11, art. 11.14, Apr. 12, 2006, Office of the U.S. Trade Representative, http://www.ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text [hereinafter U.S.-Peru FTA] (emphasis added).

48 WHO FCTC, supra note 16, at art. 13.2 (addressing tobacco advertising, promotion and sponsorship); see also, e.g., Tobacco (Control of Advertisements and Sale) Act, 2010, c. 309, §§ 3-4 (Sing.) [hereinafter Tobacco Act, Singapore] (banning advertising and foreign newspaper advertising); Tobacco Advertising Prohibition Act 1992 (Cth) ss 13-14, 16-17, 23 (Austl.) (prohibiting broadcast advertising, published advertising, and import of periodicals with tobacco advertising, and permits point of sale advertising to be governed by state law, including point of sale advertising on the Internet).

49 GATS, supra note 46, at art. XVI:2 (addressing market access).

50 The United States argued that the restrictions were “on the character of the activity supplied, not as quantitative limits,” but the panel rejected this argument. Panel Report, United States–Measures Affecting the Cross-border Supply of Gambling and Betting Services, ¶ 6.328, WT/DS285/R (Apr. 30, 2004). The Appellate Body upheld the panel's reasoning: “[a prohibition on one, several or all means of delivery crossborder] is a ‘limitation on the number of service suppliers in the form of numerical quotas’ within the meaning of Article VI:2(a) because it totally prevents the use by service suppliers of one, several or all means of delivery that are included in mode 1.” Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, ¶ 223, WT/DS285/AB/R (Apr. 20, 2005). A debate continues among analysts about whether prohibitions are qualitative rather than quantative limits on services. See, e.g., Leroux, Eric H., Eleven Years of GATS Case Law: What Have We Learned?, 10 J. INT'L ECON. L. 749, 775 (2007)Google Scholar; Hende, Lode Van Den & Smith, Herbert, GATS Article XCI and National Regulatory Sovereignty: What Lessons to Draw From US-Gambling, in THE WORLD TRADE ORGANIZATION AND TRADE IN SERVICES 461, 466 (Alexander, Kern & Andenas, Mads eds., 2008)Google Scholar.

51 Services Database, WORLD TRADE ORG., http://tsdb.wto.org/default.aspx (last visited Mar. 3, 2013) (select “member” or “sector” from drop down menus to retrieve reports of which members have made commitments in a specific sector; results are presented as a summary table, with links to the text of the commitments; select 04. Distribution Services).

52 See, e.g., Tobacco Act, Singapore §§ 3-4 (prohibiting retail sales except in licensed retail outlets); Id. § 18.

53 See, e.g., Trans-Pacific Strategic Economic Partnership, Brunei-Chile-N.Z.-Sing.-Chile, art. 12.10.2(b), July 18, 2005, N.Z. Ministry of Foreign Affairs & Trade, http://www.mfat.govt.nz/Trade-and-Economic-Relations/2-Trade-Relationships-and-Agreements/Trans-Pacific/index.php (“[E]ach party shall ensure that [an authorizing, licensing or qualification measure] … is not more burdensome than necessary to ensure the quality of the service”) (emphasis added); New Zealand-Malaysia Free Trade Agreement, N.Z.-Malay., § 8.18.2(b), Oct. 26, 2009, N.Z. Ministry of Foreign Affairs & Trade, http://www.mfat.govt.nz/Trade-and-Economic-Relations/2-Trade-Relationships-and-Agreements/Malaysia/index.php-text [hereinafter N.Z.-Malay. FTA]; U.S.-Peru FTA, supra note 47, art. 11.7(2) (“[E]ach Party shall endeavor to ensure … that [qualificatiions, technical standards, and licensing] measures are: … (b) not more burdensome than necessary to ensure the quality of the service”) (emphasis added). Compare U.S.-Kor. FTA, supra note 47, art. 12.7, (relating to domestic regulation but containing no necessity language), with Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, ASEAN-Austl.-N.Z., art. 10.2.2, Jan. 1, 2010, N.Z. Ministry of Foreign Affairs & Trade, http://www.asean.fta.govt.nz/preamble/ [hereinafter ASEAN-Austl.-N.Z. FTA] (pertaining to domestic regulation and including necessity language that depends on the outcome of WTO negotiations).

54 See N.Z., Necessity Test, supra note 36; Communication from Australia, Chile, Hong Kong, China, New Zealand and the Separate Customs Territory of Taiwan, Kinmen and Matsu, Article VI:4 Disciplines – Proposal for Draft Text, JOB(06)/193 (June 19, 2006) (produced by the Working Party on Domestic Regulation, World Trade Organization). See generally Robert Stumberg, Plain Language Guide: GATS Negotiations on Domestic Regulation (May 19, 2010) (unpublished paper), available at http://www.boell.org/downloads/Stumberg_-_Guide_to_GATS_Dom_Reg_5-19-10.pdf.

55 Communication from Brazil, Canada and the United States, Views on the Issue of the Necessity Test in the Disciplines on Domestic Regulation, ¶ 2, S/WPDR/W/44 (Mar. 22, 2011).

56 The schedule of GATS commitments for each TPP country is available through Services Database, WORLD TRADE ORG., http://tsdb.wto.org/ (last visited Mar. 18, 2013).

57 See, e.g., United States-Australia Free Trade Agreement, U.S.-Austl., art. 12.6, Annex II, Jan. 1, 2005, Office of the U.S. Trade Representative, http://www.ustr.gov/trade-agreements/free-trade-agreements/australian-fta/final-text [hereinafter U.S.-Austl. FTA] (discussing non-conforming measures in Article 12.6 and discussing the exclusion of tobacco distribution from Market Access prohibitions but not from tobacco advertising in Annex II, which is a schedule of Australia, Market Access). See infra Part 5 for discussion on exclusions.

58 See U.S.-Peru FTA, supra note 47, at art. 11.6.2, Annex II § 1 (addressing non-conforming measures in Article 11.6.2 and including Explanatory Notes in Annex II § 1).

59 Draft Trans-Pacific Partnership Agreement, Regulatory Coherence Chapter, art. X.1.2.d (Mar. 4, 2010) [hereinafter Draft TPPA Regulatory Coherence Chapter].

60 Id. at art. X.6.

61 Id. at art. X.2.

62 KELSEY, supra note 38, at 15-16.

63 Draft World Health Assembly Res. 54.18, World Health Organization, A54/52, Agenda item 13.5 ¶ 1 (May 21, 2001); see also WORLD HEALTH ORG., TOBACCO INDUSTRY INTERFERENCE WITH TOBACCO CONTROL 2-3 (2008), available at http://whqlibdoc.who.int/publications/2008/9789241597340_eng.pdf.

64 See Kelsey, Jane, The Trans-Pacific Partnership Agreement: A Gold-Plated Gift to the Global Tobacco Industry?, 39 AM. J.L. & MED. 237, 246-52 (2013)Google Scholar.

65 See, e.g., Imperial Tobacco N.Z. Ltd., Submission to the Commerce Select Committee on the Regulatory Standards Bill, ¶ 2.6 (2011); KELSEY, supra note 38, at 43.

66 Letter from the Emergency Comm. for Am. Trade, the Nat’l Ass’n of Mfrs., the Nat’l Foreign Trade Council, the U.S. Chamber of Commerce, the U.S. Council for Int’l Bus., to Hon. Hillary Rodham Clinton, Sec’y of State 2-3 (Nov. 8, 2012) [hereinafter WHO letter to Clinton].

67 See, e.g., U.S.-Kor. FTA, supra note 47, arts. 9.3, 9.8, 9.10 (discussing “International Standards” in Article 9.3, “Committee on Technical Barriers to Trade” in Article 9.8, and “Definitions – Good regulatory practice” in Article 9.10).

68 WHO FCTC, supra note 16, at 9.

69 Id. Article 9 authorizes the FCTC Conference of Parties to adopt guidelines for testing and measuring the contents and emissions of tobacco products. Id.

70 TPP countries that report having adopted disclosure measures include: Australia, Brunei, Canada, Chile, Mexico, New Zealand, and the United States, and Vietnam. Not on this list are Malaysia and Peru. For each of these countries, see WORLD HEALTH ORG. FRAMEWORK CONVENTION ON TOBACCO CONTROL, PARTIES’ REPORTS, available at http://www.who.int/fctc/reporting/party_reports/en/index.html (last visited Mar. 4, 2013).

71 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, sec. 101(b)(3), § 910, 123 Stat. 1776, 1807, 1810 (2009) (codified as amended at 21 U.S.C. § 387j) (discussing “Application for review of certain tobacco products” and the “Basis for finding”).

72 Debbie Elliott, Cigarette Makers Frustrated as Product Approvals Stall, NAT’L PUB. RADIO (Jan. 11, 2013), http://www.npr.org/2013/01/11/169158843/cigarette-makers-frustrated-as-product-approvals-stall.

73 U.S. Backs Malaysian TPP Proposal Aiming to Protect Product Formulas, INSIDE U.S. TRADE, Jan. 9, 2013, at 31.

74 WTO Tariff Analysis Online, WORLD TRADE ORG., http://tariffdata.wto.org/ (last visited Mar. 9, 2013) (click “Next,” select country of interest in the search box for “Reporters” and select “bound tariffs” when the menu expands, type in “tobacco” and click “find” in the “Products” search box, choose “240220 Cigarettes containing tobacco” product, click “Next,” then download the document).

75 Id.

76 Id.

77 WORLD HEALTH ORG., WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC, 2011: VIET NAM 1, available at http://www.who.int/tobacco/surveillance/policy/country_profile/vnm.pdf.

78 U.S. GEN. ACCOUNTING OFFICE, GAO/NSIAD-90-190, TRADE AND HEALTH ISSUES: DICHOTOMY BETWEEN U.S. TOBACCO EXPORT POLICY AND ANTISMOKING INITIATIVES 12 (1990). Targeting women has been particularly notable in Japan, where an industry-backed pledge against tobacco advertising to women replaced a government prohibition when the market was liberalized. Since then, the tobacco industry has introduced new brands and major advertising targeting women. Hanjo, Kaori & Kawachi, Ichiro, Effects of Market Liberalization on Smoking in Japan, 9 TOBACCO CONTROL 193, 193 (2000)Google Scholar.

79 Bollyky Memo, supra note 12, at 3.

80 See MTD Equity Sdn. Bhd. v. Chile, ICSID Case No. ARB/01/7, Award, ¶ 104 (May 25, 2004). MFN is discussed further below. See infra text accompanying notes 152-54 (Threat of MFN claims).

81 WORLD HEALTH ORG., supra note 63, at 13.

82 Australia argues that PMI acquired its interest in Philip Morris Asia (PMA) to come within the jurisdiction of the Australia-Hong Kong bilateral investment treaty. Australia's Respose to the Notice of Arbitration, Philip Morris Asia Ltd. v Commonwealth, ¶ 30 (Dec. 21, 2011).

83 Luke Eric Peterson, UNCITRAL Tribunal Chaired by Christopher Greenwood Declines to Let Claimant Use MFN Clause to Detour Around Highly-Restrictive Arbitration Clause, INVESTMENT ARB. REP., Jan. 22, 2013, at 20.

84 MCGRADY, supra note 5, at 84-97.

85 Id.

86 World Lung Found., Legal Challenges and Litigation, TOBACCO ATLAS, http://www.tobaccoatlas.org/solutions/legal_litigation/text/ (last visited Apr. 11, 2013) (quoting Louis Camilleri, Chairperson and CEO, Philip Morris International).

87 MCGRADY, supra note 5, at 91.

88 Rabin, Robert L., A Sociological History of the Tobacco Tort Litigation, 44 STAN. L. REV. 853, 857 (1992)Google Scholar; see also Brief for Tobacco Control Legal Consortium and Tobacco Control Resource Center as Amici Curiae Supporting Petitioners, Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2004) (No. SC03-1856), 2004 WL 1868929.

89 F. Rojid et al., No Coverage for Tobacco Industries with Regard to Tobacco-Control Measures—The Future of International Investment Agreements?, TRANSNAT’L DISPUTE MGMT., Nov. 2012, at 10 (“The cost of commencing a dispute goes even beyond that for host countries: whenever the outcome of arbitration is uncertain, States are much more likely to settle the claim, which would be at the expense of public policy because it would lead to ‘regulatory chills’ and the use of public funds to pay compensation.”).

90 See PHYSICIANS FOR A SMOKE-FREE CANADA, PACKAGING PHONEY INTELLECTUAL PROPERTY CLAIMS 14 (2009), available at http://www.smoke-free.ca/plain-packaging/documents/2009/packagingphoneyipclaims-june2009-a4.pdf; Internal Document, Souza Cruz, Tobacco Strategy Group, International Conference on Sales and Distribution (May 11, 1994), available at http://legacy.library.ucsf.edu/documentStore/s/k/o/sko08a99/Ssko08a99.pdf (discussing “little joy” from GATT/TRIPS and stating that “current conventions & treaties offer little protection” for the industry).

91 Crosbie & Glantz, supra note 35.

92 Myron Levin, As Nations Try to Snuff Out Smoking, Cigarette Makers Use Trade Treaties to Fire Up Legal Challenges, FAIRWARNING (Nov. 29, 2012), http://www.fairwarning.org/2012/11/as-nations-try-to-snuff-out-smoking-cigarette-makers-use-trade-treaties-to-fire-up-legal-challenges/. In other sectors venture capital firms and investment banks that specialize in high-stakes international litigation are stepping up to finance investment disputes. See ORG. FOR ECON. CO-OPEREATION & DEV, INVESTOR-STATE DISPUTE SETTLEMENT, PUBLIC CONSULTATION: 16 MAY – 9 JULY 2012 37 (2012) [hereinafter OECD, INVESTOR-STATE], available at http://www.oecd.org/daf/inv/internationalinvestmentagreements/50291642.pdf; David Gaukrodger & Kathryn Gordon, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community, 36-43 (Org. for Econ. Co-opereation & Dev., Working Paper on International Investment, No. 2012/3, 2012), available at http://www.oecd.org/daf/inv/investment-policy/WP-2012_3.pdf.

93 N.Z. MINISTRY OF HEALTH, REGULATORY IMPACT STATEMENT: PLAIN PACKAGING OF TOBACCO PRODUCTS 11 (Mar. 28, 2012), available at http://www.health.govt.nz/system/files/documents/pages/regulatory-impact-statement-plain-packaging-tobacco-products.pdf.

94 OECD, INVESTOR-STATE, supra note 92, at 17.

95 Claudio Paolillo, Part III: Uruguay vs. Philip Morris: Tobacco Giant Wages Legal Fight Over South America's Toughest Smoking Controls, CTR. FOR PUB. INTEGRITY (Apr. 11, 2011, 10:39 AM), http://www.publicintegrity.org/2010/11/15/4036/part-iii-uruguay-vs-philip-morris; Press Release, Foley Hoag, Government of Uruguay Taps Foley Hoag for Representation in International Arbitration Brought by Philip Morris to Overturn Country's Tobacco Regulations (Oct. 8, 2010), http://www.foleyhoag.com/news-and-events/news/2010/october/uruguay-taps-foley-hoag-for-representation.

96 “The “cost of defending this case, and the risk of being held liable, would intimidate all but the most wealthy, sophisticated countries into inaction.” Levin, supra note 92 (quoting Matthew L. Myers, president of the Campaign for Tobacco-Free Kids) (internal quotations omitted).

97 Ibrahim, J. K. & Glantz, Stanton A., Tobacco Industry Litigation Strategies to Oppose Tobacco Control Media Campaigns, 15 TOBACCO CONTROL 50, 54 (2006)Google Scholar, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2563618/.

98 This estimate is based on the MPOWER average for spending on tobacco control by middle-income countries: $.013 USD per capita. The World Bank classifies Peru as an upper-middle-income nation with a population of 29,399,817. Country and Lending Groups, THE WORLD BANK, http://data.worldbank.org/about/country-classifications/country-and-lending-groups#Upper_middle_income (last visited Mar. 4, 2013); Peru: Country at a Glance, THE WORLD BANK, http://www.worldbank.org/en/country/peru (last visited Mar. 4, 20130). Estimated annual spending is 29,399,817 x .013 = $382,197.621.

99 This estimate is based on the MPOWER average for spending on tobacco control by middle-income countries: $.013 USD per capita. The World Bank classifies Vietnam as a lower-middle-income nation with a population of 87,840,000. Country and Lending Groups, supra note 98; Vietnam:Country at a Glance, THE WORLD BANK, http://www.worldbank.org/en/country/vietnam (last visited Mar. 4, 2013). Estimated annual spending is 87,840,000 x .013 = $1,141,920. In 2011, Vietnam reported spending considerably less, only $40,000 USD using 2008 data. WORLD HEALTH ORG., WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC, 2011: VIET NAM (2011), available at http://www.who.int/tobacco/surveillance/policy/country_profile/vnm.pdf.

100 MCGRADY, supra note 5, at 41.

101 See id.

102 Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 22.3, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401.

103 Dr. Margaret Chan, Dir. Gen. of the World Health Org., Keynote Address at the 15th World Conference on Tobacco or Health (Mar. 20, 2012), http://www.catcprc.org.cn/index.aspx?menuid=25&type=articleinfo&lanmuid=156&infoid=2837&language=en.

104 Id.

105 WHO letter to Clinton, supra note 66, at 1.

106 See, e.g., Committee on Technical Barriers to Trade, Minutes of the Meeting of 15-16 June, 2011, ¶¶ 33-46, G/TBT/M/54 (Sept. 20, 2011) (statement of the WTO representative); MCGRADY, supra note , at 27-53.

107 Parties to the WHO Framework Convention on Tobacco Control, WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, http://www.who.int/fctc/signatories_parties/en/index.html (last visited Feb. 11, 2013).

108 Members and Observers, World Trade Org., http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Apr. 17, 2013).

109 15TH WORLD CONFERENCE ON TOBACCO OR HEALTH DECLARATION, WORLD CONFERENCE ON TOBACCO OR HEALTH 2012 (Mar. 20-24 2012) [hereinafter WCTOH Declaration], available at http://www.wctoh2012.org/nav-declaration.html (recommendation #3).

110 See, e.g., CTR. FOR POLICY ANALYSIS ON TRADE & HEALTH, CALL TO ACTION: FIX THE FATAL FLAWS IN U.S. TRADE POLICY ON TOBACCO (2012), available at http://www.cpath.org/sitebuildercontent/sitebuilderfiles/cpathfinalontppproposal5-6-12.pdf; Campaign for Tobacco-Free Kids Urges Trans Pacific Partnership Agreement (TPPA) Negotiators to Exempt Tobacco from the Proposed Free Trade Agreement, CAMPAIGN FOR TOBACCO-FREE KIDS, http://www.tobaccofreekids.org/content/what_we_do/federal_issues/trade/TPP.pdf (last visited Apr. 12, 2013); Letter from Bungon Ritthiphakdee, Dir., Se. Asia Tobacco Control Alliance, to President Barack Obama (Feb. 16, 2012), available at http://www.interaksyon.com/business/25134/advocates-urge-obama-take-tobacco-out-of-free-trade-talks.

111 See Letter from Nancy Brown, Chief Exec. Officer, Am. Heart Ass’n, Christopher W. Hansen, President, Am. Cancer Soc’y Cancer Action Network, Matthew L. Myers, President, Campaign for Tobacco-Free Kids, and Charles D. Connor, President & Chief Exec. Officer, Am. Lung Ass’n, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 7, 2012), available at http://www.tobaccofreekids.org/content/what_we_do/federal_issues/trade/20120507_ngo_letter.pdf; see also Letter from the Am. Acad. of Pediatrics, the Am. Acad. of Family Physicians, the Am. Coll. of Obstetricians & Gynecologists, the Am. Coll. of Physicians, the Am. Coll. of Preventive Med., the Am. Med. Ass’n, the Ctr. for Policy Analysis on Trade & Health, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 15, 2012), available at http://www.cpath.org/sitebuildercontent/sitebuilderfiles/med_pub_health_tpp_tobacco_16_may_2012.pdf; Letter from Peter Goldstraw, President, Int’l Ass’n for the Study of Lung Cancer, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 16, 2012), available at http://www.cpath.org/sitebuildercontent/sitebuilderfiles/iaslctpp-letter.pdf; Letter from Carolyn M. Dresler, Human Rights & Tobacco Control Network, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 8, 2012), available at http://www.cpath.org/sitebuildercontent/sitebuilderfiles/hrtcn-tpplettertoustrmay2012.pdf; Letter from Jeffrey B. Rich, The Soc’y of Thoracic Surgeons, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 15, 2012), available at http://www.cpath.org/sitebuildercontent/sitebuilderfiles/sts_letter_to_us_trade_representative_kirk.pdf.

112 Fact Sheet: TPP Tobacco Proposal, OFFICE OF THE U.S. TRADE REPRESENTATIVE, http://www.ustr.gov/about-us/press-office/fact-sheets/2012/may/tpp-TOBACCO-proposal (last visited Mar. 5, 2013) [hereinafter TPP Tobacco Proposal].

113 Letter from the Am. Acad. of Family Physicians, Am. Acad. of Pediatrics, Am. Ass’n for Cancer Research, Am. Ass’n for Respiratory Care, Am. Cancer Soc’y–Cancer Action Network, Am. Heart Ass’n, Am. Lung Ass’n, Am. Thoracic Soc’y, Campaign for Tobacco Free Kids, Nat’l Latino Tobacco Control Network, Oncology Nursing Soc’y, and P’ship for Prevention, to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (May 22, 2012); see also J. Strawbridge, Cigarettes, TPP, and the Wisdom of Product-Specific Rules in Trade Deals, TRANSNAT’L DISPUTE MGMT., Nov. 2012, at 9.

114 WCTOH Declaration, supra note 109; Strawbridge, supra note 113, at 3.

115 Vienna Convention on the Law of the Treaties, art. 2(d), May 23, 1969, 1155 U.N.T.S. 331. Article 19 of the Vienna Convention on the Law of the Treaties governs formulation of reservations; Article 20 governs acceptance of and objection to reservations; Article 21 governs legal elects of reservations and of objections to reservations; Article 22 governs withdrawal of reservations and of objections to reservations; and Article 23 governs procedure regarding reservations. Id. arts. 19-23.

116 See, e.g., U.S.-Austl. FTA, supra note 57, Annex II; ASEAN-Austl.-N.Z. FTA, supra note 53.

117 Footnote 9 of Article XVI in GATS states, “Subparagraph 2(c) does not cover measures of a Member which limit inputs for the supply of services.” See, e.g., GATS, supra note 46, at art. XVI(2)(c) n.9. This means that the GATS prohibition on the total quantity of service output does not apply to measures that limit the quantity of inputs for supplying a service. This is generally understood as excluding measures that conserve environmental inputs such as trees, land, fish or othe wild animals.

118 Draft TPPA Investment Chapter, supra note 21, sec. B n.20. In brackets to signify non-consensus, the exclusion footnote states, “Section B does not apply to Australia or an investor of Australia. Notwithstanding any provisions of this Agreement Australia does not consent to the submission of a claim to arbitration under this section.” Id.

119 In 2011, the Australian Government stated its policy to discontinue ISDS in its trade and investment agreements with this connection to tobacco litigation with this comment: “The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products.” AUSTL. GOV't DEP't OF FOREIGN AFFAIRS & TRADE, supra note 37, at 14. A year prior to PMA's investment claim against Australia's plain packaging law, the Australian Government Productivity Commission recommended against including ISDS in Australian FTAs. Referencing Canada's experience with invstment threats to plain packaging, the commission commented, “[T]he prospect of such a claim in the future increases the possibility that regulatory chill will influence government decisions and regulatory outcomes.” AUSTL. GOV't PRODUCTIVITY COMM’N, BILATERAL AND REGIONAL TRADE AGREEMENTS 271 (Nov. 2010); see also Investor Rights to Sue Governments Hotly Debated at Trans-Pacific Trade Talks in Auckland, Austl. Fair Trade & Inv. Network Ltd., http://aftinet.org.au/cms/node/543 (last visited Mar. 5, 2013) (“[The PMI claim] has contributed to the Australian Government decision to refuse to have investor rights to sue applied to Australia in the TPPA.”).

120 See U.S.-Kor. FTA, supra note 47, art. 23.3 (“Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.”). The article goes on to narrow the full carve-out to measures adopted under a tax convention and provide a number of partial carve-outs for tax measures.

121 See infra Part IV(a) (discussing the WTO baseline).

122 See PETER VAN DEN BOSSCHE, THE LAW AND POLICY OF THE WORLD TRADE ORGANIZATION 617 (2d ed. 2008) (“Article XX is relevant and will be invoked by a Member only when a measure of that Member has been found to be inconsistent with another GATT provision.”); see also ANDREW T. GUZMAN & JOOST H.B. PAUWELYN, INTERNATIONAL TRADE LAW 339 (2009).

123 See PETER SUTHERLAND ET AL., CONSULTATIVE BD. TO THE DIR.-GEN. SUPACHAI PANITCHPAKDI, WORLD HEALTH ORG., THE FUTURE OF THE WTO: ADDRESSING INSTITUTIONAL CHALLENGES IN THE NEW MILLENNIUM ¶ 44 (2004).

124 See id. ¶ 39 (“It is not that the WTO disallows market protection, only that it sets some strict disciplines under which governments may choose to respond to special interest.”); MCGRADY, supra note 5, at 101; BENN MCGRADY, TRADE AND PUBLIC HEALTH 218-28 (2011); McGrady, Benn, Trade Liberalisation and Tobacco Control: Moving from a Policy of Exclusion Towards a More Comprehensive Policy, 16 TOBACCO CONTROL 280, 281 (2007)Google Scholar.

125 General Agreement on Tariffs and Trade, art. XX(b), Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT]; GATS, supra note 46, art. XIV(b); see VAN DEN BOSSCHE, supra note 122, at 615-17 (“The exceptions are ‘conditional’ in that Article XX only provides for justification of an otherwise illegal measure when the conditions set out in Article XX … are fulfilled.”); WTO ANALYTICAL INDEX 318–19 (3d ed. 2012).

126 Burke-White, William W. & Staden, Andreas Von, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, 48 VA. J. INT’L L. 307, 327 (2008)Google Scholar.

127 See Burke-White & Von Staden, supra note 126, at 328; Josef Ostransky, How Can States Use Exceptions in Treaties to Defend Tobacco Control Legislation?, TRANSNAT’L DISPUTE MGMT., Nov. 2012, at 11 n.6; Prabash Ranjan, Non-Precluded Measures in Indian International Investment Agreements and India's Regulatory Power as a Host Nation, 2 ASIAN J. INT’L. L. 21, 34-35 n.93 (2011); see also, e.g., Canada-Uruguay Agreement for the Promotion and Protection of Investments, Can.-Uru., Annex I, Oct. 29, 1997, 1999 Can. T.S. No. 31; Comprehensive Economic Cooperation Agreement Between the Republic of India and the Republic of Singapore, India-Sing., art. 6(11), June 29, 2005, Dep't of Commerce, Ministry of Commerce & Indus., http://www.commerce.nic.in/ceca/toc.htm [hereinafter India-Sing. BIT].

128 See, e.g., Engan, Luke, In Search of Necessity: Congruence, Proportionality and the Least-Restrictive Means in Investor-State Dispute Settlement, 43 GEO. J. INT’L L. 495 (2012)Google Scholar; Andrew Newcombe, General Exceptions in International Investment Agreements, in 30 GLOBAL TRADE LAW SERIES: SUSTAINABLE DEVELOPMENT IN WORLD INVESTMENT LAW 351, 363 (Marie-Claire Cordonier Segger et al. eds, 2011) (exceptions in IIA); Ranjan, supra note 127, at 50; F. Rojid, et al., supra note 89, at 5-8, 11; see also Continental Casual Co. v. Argentina, ICSID Case No. ARB/03/9 (Sept. 5, 2008).

129 See ORG. FOR ECON. CO-OPERATION & DEV., INTERNATIONAL INVESTMENT PERSPECTIVES 165-66 (OECD Publishing, 2006); José Alvarez & Tegan Brink, Revisiting the Necessity Defence: Continental Casualty v. Argentina 23 (Int’l Law & Justice, Working paper 2010/3, 2010).

130 See Burke-White & Von Staden, supra note 126, at 329-36 (describing a taxonomy of elements in an investment treaty in order to make sense of the chaotic interpretations by four arbitration panels interpreting the same “necessity” exception in the U.S.-Argentina BIT in 2004). See generally Jean Galbraith, Treaty Options: Towards a Behavioral Understanding of Treaty Design, VA. J. INT’L. L. (forthcoming 2013).

131 See Agreement between the Swiss Federal Council and the Government of the United Arab Emirates on the Promotion and Reciprocal Protection of Investments, Switz.-U.A.E., art. 11(4), Mar. 11, 1998, SR-Nr. 0.975.232.5, available at http://www.admin.ch/ch/f/rs/c0_975_232_5.html (“Nothing in this agreement shall be construed to prevent a Contracting Party from taking any action necessary for reasons of public security and order, public health or morality.”).

132 See Ranjan, supra note 7 and the literature cited therein.

133 See GATT, supra note 125, at art. XX(b); GATS, supra note 46, at art. XIV(b).

134 See MCGRADY, supra note 124, at 154.

135 Id. at 141.

136 See Levin, supra note 92.

137 There are other health safeguards that are specific to FTA chapters and WTO agreements, but these are beyond the scope of this paper, which focuses only on the GATT/GATS health exception and the U.S. proposal for a tobacco exception.

138 GATT, supra note 125, art. XX; GATS, supra note 46, at art. XIV.

139 See, e.g., U.S.-Peru FTA, supra note 47, at art. 22(1). Specfically,

  1. For purposes of Chapters Two through Seven (National Treatment and Market Access for Goods, Textiles and Apparel, Rules of Origin and Origin Procedures, Customs Administration and Trade Facilitation, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), Article XX of the GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.

  2. For purposes of Chapters Eleven, Fourteen, and Fifteen (Cross-Border Trade in Services, Telecommunications, and Electronic Commerce), Article XIV of the GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal, or plant life or health.

Id.

140 See, e.g., U.S.-Kor. FTA, supra note 47, at art. 23.1; U.S.-Peru FTA, supra note 47, at art. 22.1; Chile-Malaysia Free Trade Agreement, Chile-Malay., art. 13.1 (entered into force 18 April 2012); Chile-Australia FTA, Chile-Austl., art. 22.1, Nov. 13, 2010, Ministry of Int’l Trade & Indus., http://www.miti.gov.my/cms/documentstorage/com.tms.cms.document.Document_62ac20fc-c0a81573-44934493-bf60f59a/MCFTA-consolidated%20text-full.pdf; Canada-Chile Free Trade Agreement, Can.-Chile, art. O-01, Dec. 5, 1996, Foreign Affairs & Int’l Trade Can., http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/chile-chili/menu.aspx?lang=en&view=d.

141 See infra Part IV.B.

142 GATT, supra note 125, at art. XX(b); GATS, supra note 46, at art. XIV(b).

143 Some analysts view such phrases as part of the scope, not a distinct element, but it helps to focus on the verb phrase because it signifies whether the safeguard is an exclusion (e.g., “does not apply”) or an exception. See Burke-White & Von Staden, supra note 126, at 331.

144 For GATT art. XX(b), see, for example, Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (Dec. 3, 2007) [hereinafter ABR, Brazil—Tyres]. For GATS art. XIV, see, for example, Appellate Body Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R (Dec. 21, 2009) [hereinafter ABR, China—AV Products].

145 GATS, supra note 46, at art. XXVIII(a). The GATS definition of measure encompases regulations and other forms that are covered by GATT. See id.; GATT, supra note 125, at arts. III, XI.

146 Request for Arbitration, FTR, supra note 22, ¶ 52 (seeking to avoid a waiting period and a requirement to exhaust domestic court remedies).

147 Notice of Arbitration, PMA, supra note 22, ¶ 46; Agreement Between the Government of Hong-Kong and the Government of Australia for the Promotion and Protection of Investments, H.K.-Austl., art. 2.2, Sept. 15, 1993, Dep't of Justice, http://www.legislation.gov.hk/eng/index.htm (“Each Contracting Party shall observe any obligation it may have entered into with regard to investments of investors of the other Contracting Party.”) (emphasis added).

148 See United Nations Conference in Trade and Development, UNCTAD Series on International Investment Agreement II, Most-Favored Nation Treatment, 114 UNCTAD/DIAE/IA/2010/1 (2010) (“MFN clauses permitting treaty shopping can raise numerous fundamental policy and legal issues.”).

149 Draft TPPA Investment Chapter, supra note 21, at art. 12.5 (discussing the Most-Favoured Nation Treatment).

150 Banifatemi, Yas, The Emerging Jurisprudence on the Most-Favored-Nation Treatment in Investment Arbitration, in INVESTMENT TREATY LAW: CURRENT ISSUES III 241, 242 (Bjorklund, Andrea K. et al. eds., 2009)Google Scholar.

151 MTD Equity Sdn. Bhd. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, ¶ 104 (May 25, 2004).

152 See, e.g., Asian Agric. Products Ltd. v. Sri Lanka, ICSID Case No. ARB/87/3, Final Award (June 27, 1990); ADF Grp. Inc v. United States, ICSID Case No ARB(AF)/00/1, Award, ¶¶ 194-95 (Jan. 9, 2003).

153 Banifatemi, supra note 150, at 250; Société Générale v. Dominican Republic, LCIA Case No. UN 7927, Award on Preliminary Objections to Jurisdiction, ¶ 41 (Sept. 19, 2008); Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award, ¶ 69 (May 29, 2003); M.C.I. Power Grp. L.C. v. Republic of Ecuador, ICSID Case No ARB/03/6, Decision on Annulment, ¶ 128 (Oct. 19, 2009); Anglo-Iranian Oil Company Case (U.K. v. Iran), 1952 I.C.J. 93, 109 (July 22) (stating that jurisdiction is based on consent to arbitration). But see ANDREW NEWCOMBE & LLUIS PARADELL, LAW AND PRACTICE OF INVESTMENT TREATIES 222 (2009) (“[I]t is arguable that an MFN clause that applies to all matters in the treaty could be applied to establish the intention of the parties to confer better temporal protection.”).

154 See CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, Award, ¶ 337 (May 12, 2005) (stating that an absence of clause in prior agreements is not a basis for MFN treatment).

155 See generally RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 801 (1987); Draft Articles on Most-Favoured-Nation Clauses, 2 Y.B. INT’L L. COMM’N (U.N.) 16, 53 (1978) (“A most-favoured-nation clause, unless otherwise agreed, obviously attracts benefits extended to a third State both before and after the entry into force of the treaty containing the clause”).

156 See, e.g., Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Chile for the Promotion and Protection of Investments with Protocol, Jan. 8, 1996, U.K-N. Ir.-Chile, art. 2, [1997] GR. BRIT. T.S NO. 37 (1997) (international law clause); Agreement Between the Belgo-Luxemburg Economic Union and the Government of Malaysia on Encouragement and Reciprocal Protection of Investments, Belg.-Lux-Malay., art. 3, Nov. 22, 1979, 1284 U.N.T.S. 121 (international law clause); Agreement Between the Government of the Kingdom of Denmark and the Government of Malaysia for the Mutual Promotion and Protection of Investments, Den.-Malay., art. 3, Jan. 6, 1992, IC-BT 886 (umbrella clause); Agreement Between the Government of Hong Kong and the Government of New Zealand for the Promotion and Protection of Investments, H.K.-N.Z., art. 3, July 6, 1995, U.N. Conference on Trade & Dev., http://www.unctadxi.org/templates/DocSearch.aspx?id=779 [hereinafter N.Z.-H.K. BIT] (umbrella clause); Agreement on the Promotion and Protection of Investments, N.Z.-China, art. 3, Nov. 22, 1988, 1787 U.N.T.S. 186 [hereinafter N.Z.-China BIT] (umbrella clause); Agreement on Economic Cooperation Between the Government of the Kingdom of the Netherlands and the Government of the Republic of Singapore, Neth.-Sing., art. VII, May 16, 1972, U.N. Conference on Trade & Dev., http://www.unctadxi.org/templates/DocSearch.aspx?id=779 (international law clause); Agreement Between the Government of the People's Republic of China and the Government of the Republic of Singapore on the Promotion and Protection of Investments, China-Sing., art. 3, Nov. 11, 1985, U.N. Conference on Trade & Dev., http://www.unctadxi.org/templates/DocSearch.aspx?id=779 (umbrella clause); Treaty Between United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, U.S.-Arg., art. II, Nov. 14, 1991, T.I.A.S. (international law clause); Treaty Between the United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, U.S.-Ecuador, art. II, Aug. 27, 1993, SEN. TREATY DOC. NO. 103-15 (umbrella clause).

157 See GATT, supra note 125, at art. XX; GATS, supra note 46, at art. XIV.

158 “In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A … the other agreement shall prevail to the extent of the conflict.” General Interpretive Note to Annex 1A, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 154.

159 Parties to the WHO Framework Convention on Tobacco Control, supra note 107.

160 See Sy, Deborah, Warning: Investment Agreements Are Dangerous to Your Health, 43 GEO. WASH. INT'L L. REV. 625, 652-55 (2011)Google Scholar (arguing that “the FCTC and other trade agreements are on equal footing and, in case of conflict, the tobacco control treaty must prevail”); see also Halabi, Sam Foster, The World Health Organization's Framework Convention on Tobacco Control: An Analysis of Guidelines Adopted by the Conference of the Parties, 39 GA. J. INT’L & COMP. L. 121, 132 (2010)Google Scholar.

161 Vienna Convention on the Law of the Treaties, supra note 155, at arts. 30, 31.3(c); see Marceau, Gabrielle, Conflicts of Norms and Conflicts of Jurisdiction: The Relationship Between the WTO Agreement and MEAs and Other Treaties, 35 J. WORLD TRADE 1081, 1084-85, 1129 (2001)Google Scholar; see also Wu, Chuan-feng, State Responsibility for Tobacco Control: The Right to Health Perspective, 3 ASIAN J. WTO & INT’L HEALTH L. & POL’Y 379, 385-86 (2008)Google Scholar.

162 See Marceau, supra note 161, at 1085 (citing Appellate Body Report, Guatemala—Anti-Dumping Investigation Regarding Portland Cement from Mexico, ¶ 65, WT/DS60/AB/R (Nov. 25, 1998); Panel Report, Indonesia—Certain Measures Affecting the Automobile Industry, ¶¶ 14.29-14.36, 14-97-14.99, WT/DS54, WT/DS5455, WT/DS5459, WT/DS5464/R, (July 23, 1998)).

163 See id. at 1085 (citing Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, ¶ 7.159, WT/DS27/R(US) (May 22, 1997)).

164 See JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW, 166-169, 179 (2003); MCGRADY, TRADE AND PUBLIC HEALTH, supra note 124, at 235-42, 246 (“The nature of the law of treaties means that there is no one universally applicable answer to the question of how conflicts will be resolved.”).

165 See, e.g., Catherine Saez, Plain Packaging For Tobacco Raises IPR Questions At WTO, INTELLECTUAL PROPERTY WATCH (June 16, 2011), http://www.ip-watch.org/2011/06/16/plain-packaging-for-tobacco-puts-wto-members-in-a-quandary/ (quoting a King and Spaulding Report for British American Tobacco); Manifestation and Compliance of Respondent Mighty Corp. ¶¶ 42-51, Dep't of Health et al. v. Honorable Judge Alexander P. Tamayo et al., G.R. No. 193414 (S.C., May 16, 2011) (arguing that the FCTC is “hortatory” and “merely permissive”).

166 WTO Committee on Technical Barriers to Trade, Minutes of the Meeting of 10-11 November 2011, ¶¶ 204-205, G/TBT/M/55 (Feb. 9, 2012) (statements of Cuba); id. ¶ 215 (statements of Honduras); id. ¶ 216 (statements of Mexico); id. ¶ 217 (statements of Dominican Republic); id. ¶ 218 (statements of Zimbabwe).

167 Saez, supra note 165.

168 See Jonathan Liberman, Four COPs and Counting: Achievements, Underachievements and Looming Challenges in the Early Life of the WHO FCTC Conference of the Parties, TOBACCO CONTROL (Sept. 14, 2011), http://tobaccocontrol.bmj.com/content/21/2/215.full.pdf+html?sid=fff0952f-4f88-423c-8880-903fc7656d24.

169 Vienna Convention on the Law of the Treaties, supra note 115, at art. 31.3(a).

170 WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, GUIDELINES FOR IMPLEMENTATION 92-99 (2011) [hereinafter FCTC Guidelines], available at http://whqlibdoc.who.int/publications/2011/9789241501316_eng.pdf.

171 See Halabi, supra note 160, at 132 (stating that FCTC obligations are “based on their perceived national interests”). While some FCTC guidelines are recommendations, some of them interpret explicit obligations to adopt certain measures. “A plain reading of the guidelines’ language, as well as interpretive guidance from the Vienna Convention on the Law of Treaties and customary international norms, supports the conclusion that the binding nature of the guidelines is stronger than [the industry] argues them to be.” Id. at 126. Halabi agrees with the conclusion of the WHO Legal Counsel that “decisions of the Conference of the Parties, as the supreme body comprising all Parties to the FCTC, undoubtedly represent a ‘subsequent agreement between the Parties regarding the interpretation of the treaty,’ as stated in Article 31 of the Vienna Convention.’ … The guidance issued by the COP would appear to be instrumental in fulfilling the FCTC-imposed obligation to adopt ‘effective … measures.’” Id.

172 See MCGRADY, TRADE AND PUBLIC HEALTH, supra note 124, at 235-42; PAUWELYN, supra note 164, at 166-169; Marceau, supra note 161, at 1084.

173 See Halabi, supra note 160, at 126; Sy, supra note 160, at 653; Hammond, R. & Assunta, M., The Framework Convention on Tobacco Control: Promising Start, Uncertain future, 12 TOBACCO CONTROL 241 (2003)Google Scholar.

174 See Vienna Convention on the Law of the Treaties, supra note 115, at art. 30.3 (codifying the supremecy of a treaty adopted later in time and another treaty). The FCTC was adopted 10 years after the WTO agreements.

175 Id. at art. 30.4. See MCGRADY, TRADE AND PUBLIC HEALTH, supra note 124, at 245-46; McGrady, supra note 124, at 75.

176 WHO FCTC, supra note 16, at art. 2.2. This analysis presumes that for purposes of article 2.2, the effective date of the TPPA would be 2014 or later, even though it would incorporate the GATT/GATS exception by reference. The effective date of GATT and GATS is 1995.

177 See Panel Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, ¶ 7.414, WT/DS406/R (Sept. 2, 2011) [hereinafter Panel Report, U.S.–Clove Cigarettes].

178 See McGrady, Benn & Jones, Alexandra, Tobacco Control and Beyond: The Broader Implications of United States—Clove Cigarettes for Non-Communicable Diseases, 39 AM. J.L. & MED. 265 (2013)Google Scholar.

179 Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, art. 2.1, 1868 U.N.T.S. 120 [hereinafter TBT Agreement].

180 Panel Report, U.S.—Clove Cigarettes, supra note 177, ¶¶ 7.209-.210. The panel gave greater weight to evidence that clove and menthol flavorings are substitutable in the U.S. market, where only menthol had established a significant market share. Id. ¶¶ 7.211-232.

181 Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, ¶ 149, WT/DS406/AB/R (Apr. 4, 2012) [hereinafter ABR, U.S.—Clove Cigarettes].

182 See, e.g., Ostransky, supra note 127, at 8-9.

183 The preamble of FCTC provides that the FCTC parties recognize that “scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability.” WHO FCTC, supra note 16, at preamble; see, e.g., Rojid et al., supra note 89, at 6; Lukasz Gruszczynski, The WHO Framework Convention on Tobacco Control as an International Standard under the TBT Agreement?, TRANSNAT’L DISPUTE MGMT., Nov. 2012, at 5 (considering FCTC as an international standard under TBT).

184 See Burke-White & Von Staden, supra note 126, at 361-63 (stating that investment arbitrators may defer less when they can draw their own conclusions from scientific evidence). On an issue such as justifiable discrimination, Article 2(1) of the FCTC could be cited by either side of an argument about conflict between a trade agreement and the FCTC. It provides that “nothing in these instruments shall prevent a Party from imposing stricter requirements that are consistent with their provisions and are in accordance with international law.” WHO FCTC, supra note 16, at art. 2(1) (emphasis added). In BIT disputes, investors have argued that “international law” includes treaty obligations, but the United States has argued with success that reference to international law is limited to principles of customary international law. See ADF Group Inc. v. United States, ICSID Case No. ARB(AF)/00/1, Award, ¶ 194 (Jan. 9, 2003). Article 38 of the ICJ Statute defines sources of international law to include international conventions, but the traditional view is that a treaty can be cited as evidence of international law only when repeated use in a large number of treaties is “evidence of a uniform practice or usage.” Ellery C. Stowell, INTERNATIONAL LAW: A RESTATEMENT OF PRINCIPLES IN CONFORMITY WITH ACTUAL PRACTICE xv, 31 (Treaties as a Source of International Law) (1931); accord A. D'Amato, TREATY-BASED RULES OF CUSTOM, IN INTERNATIONAL LAW ANTHOLOGY 94, 100 (A. D'Amato ed., 1994); Meier, Benjamin Mason, Breathing Life into the Framework Convention on Tobacco Control: Smoking Cessation and the Right to Health, 5 YALE J. HEALTH POL'Y L. & ETHICS 137, 192 (2005)Google Scholar.

185 GATT, supra note 125, at art. XXI(b); GATS, supra note 46, at art. XIV bis. 1(b).

186 “Nothing in this Agreement shall be construed as to prevent a Contracting Party from adopting, maintaining, or enforcing any measure that it considers appropriate to ensure that an investment activity in its territory is undertaken in accordance with the environmental law of the Party.” Rojid et al., supra note 89, at 8 (quoting Colombia-Belgium BIT, art. VII(4)).

187 Burke-White & Von Staden, supra note 126, at 377–78.

188 See Akande, Dapo & Williams, Sope, International Adjudication on National Security Issues: What Role for the WTO?, 43 VA. J. INT’L L. 365, 374 (2003)Google Scholar.

189 U.S.—Korea FTA, supra note 47, at art. 23.2 n.2 (providing that if a party involves the exception, “the tribunal or panel hearing the matter shall find that the exception applies”).

190 See WHO FCTC, supra note 16, at art. 3.

191 GATT, supra note 125, at art. XX; GATS, supra note 46, at art. XIV.

192 See Ranjan, supra note 127, at 51; Burke-White & Von Staden, supra note 126, at 330-31.

193 See MCGRADY, TRADE ABD PUBLIC HEALTH, supra note 124, at 2, 14-15; McGrady, Benn, Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures, 12 J. INT’L. ECON. L. 153 (2009)Google Scholar.

194 See McGrady, supra note 124, at 165.

195 KELSEY, supra note 38, at 23.

196 See ABR, China—AV Products, supra note 144, ¶ 230.

197 Id. ¶ 237-38; ABR, Brazil—Tyres, supra note 144, ¶ 178.

198 ABR, Brazil—Tyres, supra note 144, ¶ 151.

199 In ABR, Brazil—Tyres, the Appellate Body reasoned that “A contribution exists when there is a genuine relationship of ends and means between the objective pursued and the measure at issue.” Id. ¶ 210.

200 Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, ¶ 292, WT/DS285/AB/R (Apr. 7, 2005) [hereinafter ABR, U.S.—Gambling].

201 Id. In the pre-WTO era, a GATT dispute panel opined that Thailand's ban on cigarette advertising and marketing could be defended under the health exception. Panel Report, Thailand—Restrictions on the Importation of and Internal Taxes on Cigarettes, ¶ 78, DS10/R-37S/200 (Nov. 7, 1990) [hereinafter Panel Report, Thailand—Cigarettes].

202 ABR, China—AV Products, supra note 144; ABR, Brazil—Tyres, supra note 144; ABR, U.S.—Gambling, supra note 200; Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbetos-Containing Products, ¶ 171, WT/DS135/AB/R (Mar. 12, 2001).

203 See Panel Report, United States—Clove Cigarettes, supra note 177, ¶ 7.422 (Indonesia must do more than merely list alternatives, it must establish that alternatives make a contribution to the health objective).

204 ABR, Brazil—Tyres, supra note 144, ¶ 156; Panel Report, Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes, ¶ 7.22, WT/DS302/R (May 19, 2005) (stating that the Dominican Republic failed to meet in burden of showing that its tax scheme was less restrictive than alternatives identified by Honduras).

205 ABR, Brazil—Tyres, supra note 144, ¶ 214.

206 KELSEY, supra note 38, at 25.

207 To defend an investment claim, a government can invoke backgrounds principles of international law, including scope of the police power and necessity of measures to cope with exigent circumstances. See generally Newcombe, supra note 128; Burke-White & Von Staden, supra note 126.

208 See Burke-White & Von Staden, supra note 126, at 361-63. Whether arbitrators show deference may depend on whether the investor's home nation is a party to the FCTC. See Sy, supra note 160, at 653-55.

209 See Newcombe, supra note 128, at 356; Ranjan, supra note 127, at 53-58. But see Rojid et al., supra note 89, at 7 (arguing that tobacco-control measures restrict services or product characteristics, not investments per se).

210 ABR, Brazil—Tyres, supra note 144, ¶ 133-212.

211 Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, ¶ 161, WT/DS161/AB/R, WT/DS169/AB/R (Jan. 10, 2001).

212 MCGRADY, supra note 124, at 141, 143, 168; MCGRADY, supra note 5, at 102.

213 To be clear, a series of measures is different from their effect. In U.S—Gambling, the Appellate Body upheld a panel finding that a series of three U.S. measures had the cumulative effect of a total prohibition on Internet gambling services. The total prohibition was not a measure; it was the result, an effective impairment of GATS obligations. ABR, U.S.—Gambling, supra note 200, ¶ 124; see also Appellate Body Report, United States–Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, ¶ 2, WT/DS381/AB/R (May 16, 2012).

214 Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, 13-14, WT/DS2/AB/R (Apr. 29, 1996) [hereinafter ABR, U.S.—Gasoline].

215 Appellate Body Report, Australia–Measures Affecting Importation of Salmon, ¶¶ 93, 101-05, WT/DS18/AB/R (Oct. 20, 1998).

216 Panel Report, China—Measure Affecting Trading Rights and Distribution Services for Certain publications and Audiovisual Entertainment Products, ¶¶ 7.814-7.868, WT/DS363/R (Aug. 12, 2009); ABR, China—AV Products, supra note 144, ¶¶ 244, 248-249.

217 See, e.g., Warner, Kenneth E., The Effects of the Anti-Smoking Campaign on Cigarette Consumption, 67 AM. J. PUB. HEALTH 645, 649 (1977)Google Scholar.

218 Abascal, Winston et al., Tobacco Control Campaign in Uruguay, 380 LANCET 1575, 1575 (2012)CrossRefGoogle Scholar; see Biener, Lois, Harris, Jeffrey E. & Hamilton, William, Impact of the Massachusetts Tobacco Control Programme, 321 BRIT. MED. J. 351, 351 (2000)Google Scholar; see also ABR, Brazil—Tyres, supra note 144, ¶ 154.

219 Abascal et al., supra note 218, at 1575; see also Biener, Harris & Hamilton, supra note 218, at 351; see ABR, Brazil—Tyres, supra note 144, ¶ 154.

220 WHO FCTC, supra note 16, at art. 3.

221 MCGRADY, supra note 124, at 139-43 (characterizing a regulatory goal and the level of protection sought).

222 Id. at 155.

223 PMI Submisison, supra note 20, at 3.

224 See supra Part II(c).

225 See RONALD D. ROTUNDA & JOHN E. NOWAK, 2 NOWAK AND ROTUNDA's TREATISE ON CONSTITUTIONAL LAW —SUBSTANCE AND PROCEDURE § 15.4(a), § 18.2(a) (5th ed. 2012); see also EUGENE MCQUILLIN, 6A THE LAW OF MUNICIPAL CORPORATIONS § 24:29 (3d ed. 2012).

226 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 581 (2001); RONALD D. ROTUNDA & JOHN E. NOWAK, 5 NOWAK AND ROTUNDA's TREATISE ON CONSTITUTIONAL LAW-SUBSTANCE AND PROCEDURE § 20.31(b)(iii)(4)(VIII) (4th ed. 2012).

227 For example, Prabhash Ranjan reports that India uses “for” or another nexus that is more inclusive than necessary in more than 35 of its international investment agreements. Ranjan, supra note 127, at 51; see also Burke-White & Von Staden, supra note 126, at 330; Ostransky, supra note 127, at 6.

228 “For – IV. Of purpose or destination 8.a. With a view to; with the object or n purpose of: as preparatory to.; c. Conducive to.; 9.a. In order to obtain. 14. Of result or effect; used after words like cause, ground, motive, reason, etc.” For Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

229 E.g., Agreement between the Swiss Confederation and the Oriental Republic of Uruguay on the Reciprocal Promotion and Protection of Investments, Switz.-Uru., art. 2(1), July 10, 1988, 575 U.N.T.S. 159. Article 2(1) of the Uruguay–Switzerland BIT will influence the outcome of PMI's investment claim against Uruguay; it provides that each party recognizes each other's “right not to allow economic activities for reasons of “ public health. Id. (emphasis added).

230 E.g., N.Z.-H.K. BIT, supra note 156, at art. 8(3); U.S.-Austl. FTA, supra note 57, at Annex 11-B; N.Z.-China BIT, supra note 156, at art. 11; Accord Entre L’Union Economique Belgo-Luxembourgeoise et les Etats-Unis du Mexique Concernant L’Encouragement et la Protection Reciproques des Investissements, Belg.-Lux.-Mex., art. 3(2), Aug. 27, 1998, Council of State, http://reflex.raadvst-consetat.be/reflex/pdf/Mbbs/traiverd%5C4829.pdf (“destinées à”).

231 Ostransky, supra note 127, at 6.

232 See, e.g., Agreement Between Japan and the Republic of Singapore for a New-Age Economic Partnership, Japan-Sing., art. 19, Jan. 13, 2002, Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/region/asia-paci/singapore/jsepa.html; India-Sing. BIT, supra note 127, at art. 6.

233 “Relate, adj - Related, connected.” Relate Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

234 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶¶ 135-142, WT/DS59/AB/R (Oct. 12, 1998) [hereinafter ABR, U.S.—Shrimp](whether the measure was primarily aimed at its objective); see also WORLD TRADE ORG., WTO E-LEARNING: THE WTO MULTILATERAL TRADE AGREEMENTS 346 (2010), available at https://etraining.wto.org/admin/files/Course_234/CourseContents/eWTO-E-R3-Print.pdf; TREBILCOCK, MICHAEL J. & HOWSE, ROBERT, THE REGULATION OF INTERNATIONAL TRADE 532 (3d ed. 2005)Google Scholar.

235 But see Ranjan, supra note 127, at 51 (arguing that relating to is a stronger nexus than for).

236 GATT, supra note 125, at art. XX; GATS, supra note 46, at art. XIV.

237 FCTC Guidelines interpreting Article 6 recognize that a tax measure can serve dual purposes. See Fourth Session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, Punta del Este, Uru., Nov. 15-20, 2010, Framework Convention Alliance, Guidelines for FCTC Article 6 (Price and Tax Measures to Reduce the Demand for Tobacco) – What Finance Ministries Need to Know, available at http://www.fctc.org/images/stories/Art%206%20briefing%20finance%20ministries.pdf.

238 GATT, supra note 125, at art. XX; GATS, supra note 46, at art. XIV.

239 ABR, U.S.—Shrimp, supra note 234, ¶¶ 118–19, 160; ABR, U.S.—Gasoline, supra note 214, at 22.

240 ABR, U.S.—Gasoline, supra note 214 (reviewing the drafting history of Article XX); see also ABR, U.S.—Clove Cigarettes, supra note 181, ¶ 109 (discussing the balance stricken by the preamble of the TBT Agreement which includes similar recognition of rights to regulate); ABR, U.S.—Shrimp, supra note 234, ¶¶ 158-59; ABR, Brazil—Tyres, supra note 144, ¶ 215; ABR, U.S.—Gambling, supra note 200, ¶ 339.

241 ABR, U.S.—Gasoline, supra note 214, at 22-23.

242 Id.

243 ABR, U.S.—Gambling, supra note 200, ¶ 367-69.

244 ABR, China—AV Products, supra note 144, ¶ 237-38.

245 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, sec. 101(b)(3), § 907(a)(1)(A), 123 Stat. 1776, 1799 (2009) (to be codified as amended at 21 U.S.C. § 387g); H.R. REP. No. 111-58, pt. 1, at 2, 37, 77 (2009).

246 See ABR, U.S.—Clove Cigarettes, supra note 181, ¶¶ 181-182.

247 Simon Lester, Free Trade and Tobacco: Thank You for Not Smoking (Foreign) Cigarettes, CATO FREE TRADE BULLETIN, August 15, 2012, at 1, 6, available at http://www.cato.org/sites/cato.org/files/pubs/pdf/FTB-049.pdf.

248 ABR, U.S.—Gasoline, supra note 214, at 28.

249 An Act to Amend the Tobacco Act, S.C. 2009, c. 27 (Can.). Canada's flavoring ban has been discussed in the WTO's TBT committee, but no country as requested a dispute panel yet. World Trade Org. Comm. on Technical Barriers to Trade, Minutes of the Meeting of 23-24 June 2010, ¶¶ 181-26, G/TBT/M/51 (Oct. 1, 2010).

250 Statements by the United States at the April 24, 2012, DSB Meeting, MISSION OF THE U.S.: GENEVA, SWITZ., http://geneva.usmission.gov/2012/04/25/statements-by-the-united-states-at-the-april-24-2012-dsb-meeting (last visited Mar. 18, 2013).

251 Panel Report, Brazil—Measures Affecting Imports of Retreaded Tyres, ¶ 7.330, WT/DS332/R (June 12, 2007) [hereinafter Panel Report, Brazil—Tyres]. Intentional protectionism would be an act of bad faith, which underlies the requirement to avoid applying a disguised barrier to trade. See ABR, U.S.—Shrimp, supra note 234, ¶ 158; ABR, Brazil—Tyres, supra note 144, ¶ 215.

252 The Panel considered the amounts of retreaded tyres that Brazil exempted from the import ban because significant amounts “would have the potential to undermine the achievement of the stated objective,” therefore constituting a disguised restriction. Panel Report, Brazil—Tyres, supra note 251, ¶ 7.353.

253 ABR, Brazil—Tyres, supra note 144, ¶ 239.

254 Id.

255 H.R. REP. No. 111-58, pt. 1, at 39 (2009).

256 See Todd Tucker, ‘One of These Things Is Not Like the Other’: Likeness and Detrimental Impacts in US—Clove Cigarettes, TRANSNAT’L DISPUTE MGMT., Nov. 2012, at 3, 8.

257 Id.

258 These selected scope terms are extracted from the U.S.-Peru FTA, supra note 47, at art 22.1.

259 TPP Tobacco Proposal, supra note 112.

260 Id.

261 Id.

262 Id.; see also Author's notes, briefings by USTR staff (May 2012) [hereinafter Author's Notes, USTR Briefings]. This and other accounts of USTR's interpretation of the U.S. proposal is based on notes from direct communication with USTR staff at a briefing for public health organizations on May 18, 2012 (in person at the White House Conference Center and via conference call) and prior conference calls during the week of May 7, 2012.

263 TPP Tobacco Proposal, supra note 112.

264 Author's Notes, USTR Briefings, supra note 262.

265 For a journalistic account of the U.S. interagency process and off-the-record commentary from the business community, trade lawyers, and health advocates, see Strawbridge, supra note 113, at 4-11.

266 Letter from Bill Brock, Mickey Kantor, Susan Schwab, and Clayton Yeutter to Ron Kirk, Ambassador, Office of the U.S. Trade Representative (June 22, 2012); Critics of Draft U.S. Tobacco Proposal in TPP Poised to Renew Efforts, INSIDE U.S. TRADE, Feb. 1, 2013, at 1.

267 ABR, U.S.—Clove Cigarettes, supra note 181, ¶¶ 86–87.

268 Request for the Establishment of a Panel by Ukraine, Australia—Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS434/11 (Aug. 17, 2012) (citing the measures as violating art. I and art. III(4) of the GATT 1994, art. 3.1 of the TRIPS Agreement, and art. 2.1 of the TBT Agreement); Request for the Establishment of a Panel by Honduras, Australia—Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/16 (Oct. 17, 2012) (citing the measures as violating Article III(4) of the GATT 1994, Article 3.1 of the TRIPS Agreement, and Article 2.1 of the TBT Agreement).

269 ABR, U.S.—Clove Cigarettes, supra note 181, ¶¶ 181–82.

270 Author's Notes, USTR Briefings, supra note 262; see also Benn McGrady, Clarification of US Proposal on Tobacco in the TPP, TRADE, INV. & HEALTH (May 22, 2012), http://www.oneillinstitutetradeblog.org/clarification-of-us-proposal-on-tobacco-in-the-tpp/; Benn McGrady, Update on Tobacco in the Trans-Pacific Partnership, TRADE, INV. & HEALTH (May 21, 2012), http://www.oneillinstitutetradeblog.org/update-on-tobacco-in-the-trans-pacific-partnership/; Benn McGrady, US Proposal on Tobacco in Trans-Pacific Partnership, TRADE, INV. & HEALTH (May 18, 2012), http://www.oneillinstitutetradeblog.org/us-proposal-on-tobacco-in-trans-pacific-partnership/ [hereinafter McGrady, US Proposal].

271 See Strawbridge, supra note 113, at 10-11.

272 Arguably the article on expropriation is framed as a prohibition: “No party may expropriate … except (a) for a public purpose, … [etc.]” U.S.-Peru FTA, supra note 47, at art. 10.7(1).

273 The investment prohibitions are not relevant to the tobacco disputes. E.g., U.S.-Kor. FTA, supra note 47, at arts. 11.8-.9.

274 See id. at art. 12.4(a).

275 Id. at art. 12.7.

276 Id. at art. 12.8(1).

277 Draft TPPA Investment Chapter, supra note 21, at art. 12.28; see also U.S.-Kor. FTA, supra note 47, at arts. 11.26, 22.13. Likewise, violation of a trade obligation results in only in economic sanctions – usually in the form of punitive tariffs. See generally JOHN H. JACKSON, SOVEREIGNTY, THE WTO AND CHANGING FUNDAMENTALS OF INTERNATIONAL LAW ch. 5 (2006).

278 “Preclude – 2. Shut out, exclude; prevent, frustrate; make impossible. 3. Esp. of a situation or condition: prevent (a person) from an action or (from) doing something.” Preclude Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

279 Burke-White & Von Staden, supra note 126, at 386.

280 Id. at 387.

281 See, e.g., ASEAN-Austl.-N.Z. FTA, supra note 29, at art. 15(1)(2).

282 TPP Tobacco Proposal, supra note 112.

283 See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, sec. 101(b)(3), § 906(d)(1), 123 Stat. 1776, 1796 (2009) (to be codified as amended at 21 U.S.C. § 387f). Section 906(d)(1) of the Federal Food, Drug, and Cosmetic Act, as amended by the Tobacco Control Act, provides: “The Secretary may by regulation require restrictions on the sale and distribution of a tobacco product, including restrictions on the access to, and the advertising and promotion of, the tobacco product, if the Secretary determines that such regulation would be appropriate for the protection of the public health.” Id. (emphasis added).

284 For example, at the local level, licensing authorities often have jurisdiction over point-of-sale environments; at the national level, the U.S. Federal Trade Commission (FTC) has regulated cigarette advertising. See Strawbridge, supra note 113, at 5 n.12.

285 Author's Notes, USTR Briefings, supra note 262.

286 See, e.g., TOBACCO CONTROL LEGAL CONSORTIUM, FACT SHEET 2: EXPANSION OF STATE AND LOCAL AUTHORITY (2009), available at http://www.publichealthlawcenter.org/sites/default/files/fda-2.pdf; TOBACCO CONTROL LEGAL CONSORTIUM, FACT SHEET 4: UNCHANGED STATE AND LOCAL AUTHORITY (2009), available at http://www.publichealthlawcenter.org/sites/default/files/fda-4.pdf; TOBACCO CONTROL LEGAL CONSORTIUM, FACT SHEET 6: STATE AND LOCAL AUTHORITY TO ESTABLISH TOBACCO PRODUCT STANDARDS (2009), available at http://www.publichealthlawcenter.org/sites/default/files/fda-6.pdf; Michael Freiberg, Options for State and Local Governments to Regulate Non-Cigarette Tobacco Products, 21 ANNALS HEALTH L. 407 (2012), available at http://www.publichealthlawcenter.org/sites/default/files/resources/phlc-lreview-freiberg-regulating-otp-2012.pdf; Firesafe Cigarettes, PUB. HEALTH L. CENTER, http://www.publichealthlawcenter.org/topics/tobacco-control/product-regulation/firesafe-cigarettes (last visited Feb. 25, 2013).

287 Burke-White & Von Staden, supra note 126, at 387.

288 See U.S.-Kor. FTA, supra note 47, at art. 23.1 (incorporating by reference the general exceptions of GATT art. XX and GATS art. XIV).

289 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, sec. 101(b)(3), § 907, 123 Stat. 1776, 1799 (2009) (to be codified as amended at 21 U.S.C. § 387g); ABR, U.S.—Clove Cigarettes, supra note 181, ¶¶ 1-4, 298.

290 See, e.g., KELSEY, supra note 38, app. 3 at 72-75 (describing tobacco control policies with trade and investment treaty implications); CHANGELAB SOLUTIONS, TOBACCO LAWS AFFECTING CALIFORNIA 7 (2012), available at http://changelabsolutions.org/sites/default/files/documents/2012_CALawsBooklet_FINAL_20120515.pdf.

291 See, e.g., Draft TPPA Investment Chapter, supra note 21, at art. 12.3; U.S.-Peru FTA, supra note 47, art. 11.1.

292 See, e.g., Sinclair Collis Ltd., Petitioners, for Judicial Review of the Tobacco and Primary Health Servces (Scotland) Act 2010, [2011] CSOH 80, available at http://www.scotcourts.gov.uk/opinions/2011CSOH80.html.

293 See Family Smoking Prevention and Tobacco Control Act § 906(d)(1).

294 Id.

295 See Williams, Clifton, Expressio Unius Est Exclusio Alterius, 15 MARQUETTE L.REV. 191, 193 (1931)Google Scholar; see also Llewellyn, Karl N., Remarks on the Theory of Appellate Decision and the Rules of Canons About How Statutes Are to be Construed, 3 VAND. L. REV. 395, 405 (1950)Google Scholar.

296 WHO FCTC, supra note 16, art. 1

297 TPP Tobacco Proposal, supra note 112.

298 Author's Notes, USTR Briefings, supra note 262.

299 First Written Submission of the United States, United States—Measures Affecting the Production and Sale of Clove Cigarettes, ¶¶ 199-201, DS406 (Nov. 16, 2010) [hereinafter First Written Submission, U.S.—Clove], available at http://www.ustr.gov/webfm_send/2396.

300 TPP Tobacco Proposal, supra note 112.

301 See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, sec. 101(b)(3), § 906(d)(1), 123 Stat. 1776, 1796 (2009) (to be codified as amended at 21 U.S.C. § 387f).

302 Author's notes, USTR Briefings, supra note 262.

303 Article III(4) of the GATT provides:

The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.

GATT, supra 125, at art. III(4) (emphasis added).

Article 2.1 of the TBT Agreement provides: “Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.” TBT Agreement, supra note 179, at art. 2.1 (emphasis added).

304 ABR, Brazil—Tyres, supra note 144, ¶¶ 9-10.

305 Id. ¶¶ 135-136.

306 Id. ¶ 137 (emphasis added). According to the EC, it was necessary for the Panel to quantify the reduction of waste tyres resulting from the import ban in order to properly weigh and balance the contribution against other relevant factors. The relative ease of establishing a measure's contribution under the general necessity test (versus a quantitative science-based test) is illustrated by the Appellate Body's rejection of the EC's argument that the very indirect nature of the risk attributable to imported tyres should have called for a more diligent examination of the contribution made by the import ban to the reduction of the number of waste tyres. Id.

307 Id. ¶¶ 150-153 (upholding the Panel's analysis as described in ¶¶ 148-149). To be clear, the Appellate Body and the panel held that Brazil must (and did) establish that its import ban makes a material contribution to the public health objectives, not merely an incidental contribution. Id. ¶ 150.

308 ABR, China—AV Products, supra note 144, ¶¶ 250–254.

309 ABR, Brazil—Tyres, supra note 144, ¶ 154, 210.

310 ABR, Brazil—Tyres, supra note 144, ¶¶ 150-155, 172; see also MCGRADY, supra note 124, at 156.

311 Agreement on the Application of Sanitary and Phytosanitary Measures, Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 493 [hereinafter SPS Agreement]. See generally MCGRADY, supra note 124, at 175-200.

312 SPS Agreement, supra note 311, at art. 2.2 (“Members shall ensure that any … measure is applied only to the extent necessary to protect … health, is based on scientific principles and is not maintained without sufficient scientific evidence”); id. at art. 5.1 (“Members shall ensure that their … measures are based on an assessment, as appropriate to the circumstances, of the risks to … health, taking into account risk assessment techniques developed by the relevant international organizations.”).

313 See also Appellate Body Report, EC—Measures Concerning Meat and Meat Products (Hormones), ¶ 193, WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) [hereinafter ABR, EC—Hormones]; Appellate Body Report, Japan—Measures Affecting Agricultural Products, WT/DS76/AB/R, ¶¶ 74-75, (Feb. 22, 1999) [hereinafter ABR, Japan—Agricultural]; Appellate Body Report, Australia—Measures Affecting the Importation of Salmon, WT/DS18/AB/R, ¶¶ 119-123, (Oct. 20, 1998) [hereinafter ABR, Australia—Salmon].

314 Id. ¶ 194.

315 See supra text accompanying note 302.

316 ABR, EC—Meat, supra note 313, ¶ 193.

317 See id. ¶¶ 198-200; see also ABR, Japan—Agricultural, supra note 313, ¶¶ 74-75; ABR, Australia—Salmon, supra note 313, ¶ 126.

318 ABR, U.S.—Clove Cigarettes, supra note 181, ¶ 149.

319 Id.

320 Id. ¶¶ 144-150.

321 Id. ¶ 225.

322 PMI Submission, supra note 20.

323 See ACTION ON SMOKING AND HEALTH (ASH) AUSTRALIA, COUNTERING TOBACCO TACTICS 9 (2010); ASH Austl., Tobacco-Free University Campuses in Australia: Progress and Best Practices (2009), available at http://www.ashaust.org.au/lv4/UniSurveySummary09.doc; Saloojee, Yussuf & Dagli, Elif, Tobacco Industry Tactics for Resisting Public Policy on Health, 78 BULL. WORLD HEALTH ORG. 902, 904 (2000)Google Scholar; WORLD HEALTH ORGANIZATION, supra note 63, 10-11; Bero, Lisa et al., Lawyer Control of the Tobacco Industry's External Research Program, 274 JAMA 241, 247 (1995)Google Scholar (“[I]ndustry-funded scientists had a coordinated plan for producing and publicizing data that supported the tobacco industry's position that tobacco use is not dangerous.”).

324 See DELOITTE, TOBACCO PACKAGING REGULATION – AN INTERNATIONAL ASSESSMENT OF THE INTENDED AND UNINTENDED IMPACTS (2011); WORLD HEALTH ORGANIZATION, supra note 63, at 17 (quoting M. Scollo et al., Review of the Quality of Studies on the Economic Effects of Smoke-Free Policies on the Hospitality Industry, 12 TOBACCO CONTROL 13-20 (2003)).

325 See Plain Packaging of Tobacco Products, BRITISH AMERICAN TOBACCO, http://www.bat.com/group/sites/uk__3mnfen.nsf/vwPagesWebLive/DO7J7DCZ?opendocument&SKN=1 (last visited April 10, 2013); see also Illicit Trade, PLAIN PACKAGING OF TOBACCO PRODUCTS, http://www.plain-packaging.com/Templates/Blank_IllicitTrade.aspx (last visited May 22, 2012).

326 For example, in the WTO's Committee on Technical Barriers to Trade, Colombia asserted that in the wake of more stringent packaging regulations, “it had not been scientifically proven that these labels directly induced a drop in consumption of tobacco.” World Trade Org. Comm. on Technical Barriers to Trade, Minutes of the Meeting of 15-16 June 2011, ¶ 11, G/TBT/M/54 (Sept. 20, 2011). Other countries recently challenging the scientific basis or trade-restrictiveness of tobacco regulations include the Dominican Republic, Indonesia, China, Chile, Cuba, Nicaragua, Ukraine, Honduras, and the Philippines. See id.

327 Editorial Bd., FDA Should Do More with its Authority over Tobacco Products, WASH. POST (Feb. 4, 2013), http://articles.washingtonpost.com/2013-02-04/opinions/36741269_1_tobacco-products-menthol-cigarettes-lawrence-deyton.

328 For studies that use other jurisdictions as a control reference, see Abascal et al., supra note 218, at 1580 (comparing Uruguay and Argentina); Pierce, et al., Effectiveness of Antismoking Campaigns in Australia, 80 AM. J. PUB. HEALTH 565, 565 (1990)Google Scholar (comparing Melbourne and Sidney); Biener, Harris & Hamilton, supra note 218, at 353 (comparing Massachusetts with the rest of the United States except California).

329 See Abascal et al., supra note 218, at 1580 (the study was able to compare comprehensive tobacco-control measures in Uruguay with relatively fewer measures in Argentina); Warner, supra note 217, at 649; Biener, Harris & Hamilton, supra note 218, at 353.

330 Warner, supra note 217, at 649; see also Flay, Brian R., Mass Media and Smoking Cessation, 77 AM. J. PUB. HEALTH 153, 153 (1987)Google Scholar (discussing the problem with assessing program effects on knowledge, attitudes, or behavior of individual smokers).

331 McGrady, Clarification of US Proposal on Tobacco in the TPP, supra note 270; Benn McGrady, Tobacco in the Trans-Pacific Partnership Agreement, TRADE, INVEST. & HEALTH (Nov. 29, 2012), http://www.oneillinstitutetradeblog.org/tobacco-in-the-trans-pacific-partnership-agreement/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+oneill-tih+%28Trade%2C+Investment+and+Health%29

332 See ABR, U.S.—Gasoline, supra note 214, at 23.

333 See supra text accompanying note 114.

334 See supra text accompanying note 262.

335 See McGrady, Clarification of US Proposal on Tobacco in the TPP, supra note 270.

336 Strawbridge, supra note 113, at 13.

337 See ABR, EC—Hormones, supra note 313, ¶ 164 (observing, in reference to the SPS Agreement, which requires measures to be “based on” international standards in Article 2.2 and “conform to” international standards in Article 2.4, that “Article 3.3 once again refers to measures ‘based on’ international standards. The implication arises that the choice and use of different words in different places in the SPS Agreement are deliberate, and that the different words are designed to convey different meanings. A treaty interpreter is not entitled to assume that such usage was merely inadvertent on the part of the Members who negotiated and wrote that Agreement”).

338 See Strawbridge, supra note 113, at 13.

339 See First Written Submission of the United States, United States—Measures Affecting the Production and Sale of Clove Cigarettes, ¶¶ 199-201, WT/DS406 (Nov. 16, 2010). For an analysis that stresses the importance of prohibiting only facial discrimination in order to preserve the balance of domestic regulatory autonomy, see Request for Permission to Submit Information the Appellate Body by Non-Parties & Information for Submission to the Appellate Body on Behalf of O’Neill Institute for National and Global Health Law, Georgetown University Law Center, United States—Measures Affecting the Production and Sale of Clove Cigarettes, 2-5, WT/AN-2012-1/DS406 (Jan. 26, 2012), available at http://www.law.georgetown.edu/oneillinstitute/documents/2012-01_Clove%20Cigarettes.pdf (Article 2.1 of the TBT Agreement should be interpreted in a manner that does not upset the existing balance between domestic regulatory autonomy and respect for commitments (the balance between rights and obligations).

340 Strawbridge, supra note 113, at 10.

341 “Order – P3, in order to, b.(a) With a view to the bringing about of (something), for the purpose of (some desired end). Obs.” Order Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

342 “To – III. Expressing the relation of purpose, destination, result, effect, resulting condition or status.; 8. a. Indicating aim, purpose, intention, or design” To Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com. “For; for the purpose of; with the view or end of; in order to. (Now often replaced by for.)” For Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

343 “That – II. 3. a. Introducing a clause expressing purpose, end, aim, or desire: with simple subjunctive (arch.), or with may (pa. tense might), should, rarely shall.” That Definition, OXFORD ENGLISH DICTIONARY ONLINE, http://www.oed.com.

344 See supra text accompanying note 262.

345 Comment from Joseph Brenner & Ellen Shaffer, Dirs., Ctr. for Pol’y Analysis on Trade & Health, to the Office of the U.S. Trade Representative, Comments Concerning Proposed United States-Trans-Pacific Partnership Trade Agreement, USTR-2009-0041, at 17 (Jan. 25, 2010).

346 See, e.g., WCTOH Decleration, supra note 109.

347 See Rojid et al., supra note 89, at 11.

348 The Dominican Republic-Central America-United States Free Trade Agreement, Dom. Rep.-Cent. Am.-U.S., Annex 3.2, Aug. 5, 2004, Office of the U.S. Trade Representative, http://www.ustr.gov/trade-agreements/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta/final-text.

349 United States-Jordan Free Trade Agreement, U.S.-Jordan, Annex 2.1, Oct. 24, 2000, Office of the U.S. Trade Representative, http://www.ustr.gov/trade-agreements/free-trade-agreements/jordan-fta/final-text.

350 See REMY JURENAS, CRS REPORT FOR CONGRESS: AGRICULTURE IN U.S. FREE TRADE AGREEMENTS: TRADE WITH CURRENT AND PROSPECTIVE PARTNERS, IMPACT, AND ISSUES 27 (2008) (stating that United States excluded sugar); id. at 35 (stating that Jordan excluded tobacco); id. at 37 (stating that Korea excluded rice).

351 WHO FCTC, supra note 16, at art. 1(e); see U .S.-Peru FTA, supra note 48, at art. 22.3.1 (“Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.”).

352 Treaty between the United States of America and the Republic of Turkey Concerning the Reciprocal Encouragement and Protection of Investments, U.S.—Turk., art. 2.2, Dec. 3, 1985, SEN. TREATY DOC. NO. 99-19 [hereinafter U.S.-Turk. BIT] (stating that national treatment applies to an investment “once established”); BEYZA BANU OZDILEK, MFN TREATMENT AND ITS SCOPE (2006).

353 See Cultural Industries Sectoral Advisory Group on International Trade, New Strategies for Culture and Trade Canadian Culture in a Global World, DEP't OF FOREIGN AFFAIRS & INT’L TRADE CAN. (Feb. 1999), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/canculture.aspx?lang=en&view=d.

354 See, e.g., U.S.-Austl. FTA, supra note 57, Annex II (“Australia reserves the right to adopt or maintain any measure with respect to wholesale and retail trade services of tobacco products, alcoholic beverages, or firearms.”).

355 See Rojid et al., supra note 89, at 11.

356 U.S.-Peru FTA, supra note 47, at art. 10.13, 11.6, Annex II (Explanatory Notes, art. 1).

357 As a potential rule that limits regulation see generally N.Z.-Malay. FTA, supra note 53, at art. 8.18 (“[E]ach Party shall ensure that such a measure: (a) is based on objective and transparent criteria, such as competence and the ability to supply the service; (b) is not more burdensome than necessary to ensure the quality of the service; and (c) does not constitute a disguised restriction on the supply of the services.”).

358 See supra note 354.

359 Agreement Between New Zealand and Singapore on a Closer Economic Partnership, N.Z.-Sing., Annex 2, Nov. 14, 2000, N.Z. Ministry of Foreign Affairs & Trade, http://www.mfat.govt.nz/Trade-and-Economic-Relations/2-Trade-Relationships-and-Agreements/Singapore/Closer-Economic-Partnership-Agreement-text/index.php (explaining that New Zealand's schedule of commitment excluding agricultural raw materials, live animals, food products, beverages, tobacco and wool and putting restriction on national treatment and Singapore's schedule of commitment excluding food, beverages, tobacco and sale of motor vehicle and putting restriction on national treatment).

360 Barack Obama, President, Remarks by the President at the Signing of the Family Smoking Prevention and Tobacco Control Act (June 22, 2009) (transcript available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-at-the-signing-of-the-family-smoking-prevention-and-tobacco-control-act/.