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The FCTC and its Role in WTO Law: Some Remarks on the WTO Plain Packaging Report

Published online by Cambridge University Press:  19 November 2018

Lukasz GRUSZCZYNSKI  and
Margherita MELILLO
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European Journal of Risk Regulation , Volume 9 , Issue 3: Symposium on Effective Law and Regulation , September 2018 , pp. 564 - 574
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© Cambridge University Press 

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Footnotes

*

Lukasz Gruszczynski (dr. habil.) is an Associate Professor at the Institute of Law Studies of the Polish Academy of Sciences (Warsaw, Poland), and a Senior Research Fellow at the HAS CSS Institute for Legal Studies (Budapest, Hungary). This research was financed by the National Science Centre (Poland) pursuant to grant number UMO-2016/21/B/HS5/02065. Margherita Melillo is a PhD candidate at the European University Institute (Florence, Italy).

References

1 Formally speaking, there were four panels that issued four reports. However, for simplicity all the four panels are collectively referred to here as “the panel” or “the TPP panel”; the same applies to their reports. For more details, see Section II.

2 Panels Reports, Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, 28 June 2018, WT/DS435/R, WT/DS441/R, WT/DS458/R, and WT/DS467/R.

3 WHO Framework Convention on Tobacco Control, opened for signature 16 June 2003 (entered into force 27 February 2005), 2302 UNTS 166. It currently has 181 parties.

4 Tobacco Plain Packaging Act 2011 (An Act to discourage the use of tobacco products, and for related purposes), (No 148, 2011, C2011A00148).

5 Tobacco Plain Packaging Regulations 2011 (SLI 2011, No. 263, as subsequently amended).

6 Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (No 149, 2011, C2011A00149).

7 Competition and Consumer (Tobacco) Information Standard 2011 (F 2011 L 02766, as subsequently amended).

8 Guidelines for implementation of Article 11 of the WHO Framework Convention on Tobacco Control, Packaging and Labelling of Tobacco Products, decision FCTC/COP3(10), November 2008, para. 46.

9 Guidelines for implementation of Article 13 of the WHO Framework Convention on Tobacco Control, Tobacco Advertising, Promotion and Sponsorship, decision FCTC/COP3(12), November 2008, para. 16.

10 JT International SA v Commonwealth of Australia and British American Tobacco Australasia Ltd v The Commonwealth of Australia [2012] HCA 43, 5 October 2012, case numbers: S409/2011 and S389/2011.

11 Philip Morris Asia Ltd v Commonwealth of Australia, Award on Jurisdiction and Admissibility, 17 December 2015.

12 Private entities are not authorised to file complaints in the WTO and this right is only granted to the members of the organisation. It is, however, common knowledge that both British American Tobacco and Philip Morris International have provided support for the complainants (see eg A Martin, “Philip Morris Leads Plain Packs Battle in Global Trade Arena”, 22 August 2013, <bloom.bg/2pXQe3x>, accessed 31 July 2018).

13 It is not clear why Ukraine took this decision. Most probably security consideration connected with the annexation of Crimea by Russia and the need to find allies played an important role (note that Australia is a NATO member).

14 Note that the complainants’ requests are not identical. While they mostly identify the same provisions, there are also claims which are unique for specific WTO Members (for more details, see paras. 3.1–3.9 of the TPP panel report).

15 See eg Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging – Request for Consultations by Indonesia, 25 September 2013, WT/DS467/1, G/TBT/D/46, IP/D/34, G/L/1041.

16 The panel particularly quoted Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (16 May 2012), WT/DS381/AB/R, para. 322.

17 Davison, M, “The Legitimacy of Plain Packaging under International Intellectual Property Law: Why There Is No Right to Use a Trademark under Either the Paris Convention or the Trips Agreement” in A Mitchell, T Voon and J Liberman (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar 2012)Google Scholar; Frankel, S and Gervais, DJ, “Plain Packaging and the Interpretation of the TRIPS Agreement” (2013) 46(5) Vanderbilt Journal of Transnational Law 1149 Google Scholar.

18 See eg Gruszczynski, L, “The World Health Organization Framework Convention on Tobacco Control as an International Standard under the Agreement on Technical Barriers to Trade” in A Mitchell and T Voon (eds), The Global Tobacco Epidemic and the Law (Edward Elgar 2014)Google Scholar.

19 The panel identified four such conditions: (i) an instrument is a document, (ii) that provides rules, guidelines or characteristics for products or related process and production methods, (iii) for common and repeated use, and (iv) compliance with these rules, guidelines or characteristics is not mandatory (para. 7.281).

20 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (6 November 1998), WT/DS58/AB/R, paras. 130–132.

21 ibid, para. 131.

22 I Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press 2009) 57.

23 Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes (19 May 2005), WT/DS302/R, para. 7.216; Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes (24 April 2012), WT/DS406/R, paras. 7.229, 7.414, 7.427.

24 Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (18 September 2000), WT/DS135/R, para. 8.295.

25 Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (18 June 2014), WT/DS400/R and WT/DS401/R, para. 7.295.

26 AL Taylor and DW Bettcher, “WHO Framework Convention on Tobacco Control: A Global Good for Public Health” (2000) 78 Bulletin of the World Health Organization 920.

27 Panel Report, US – Clove Cigarettes, para. 7.230.

28 Additional Information for Submission to the Panel by a Non-Party on behalf of the World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 5 October 2015, available at <www.who.int/tobacco/additional-information-submission-australia-tobacco-plain-packaging.pdf?ua=1> (accessed on 26 July 2018).

29 In that case, the panel relied upon the Basel Convention Technical Guidelines on the Identification and Management of Used Tyres to assess the existence of a risk. Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres (12 June 2007), WT/DS332/R, para. 7.81.

30 For details on regulatory chilling effect in the context of disputes over legality of plain packaging see Gruszczynski, L, “Australian Plain Packaging Law, International Litigations and Regulatory Chilling Effect” (2014) 2 European Journal of Risk Regulation 160 CrossRefGoogle Scholar. Note also that the effect of the report may be more limited that one could initially expect. Some of the complaints have already announced that they will appeal the panel report. Considering the progressive paralysis of the operations of the appellate body, we may wait for a final report for a while. Tobacco companies will certainly try to exploit this fact.

31 See generally Peel, J, Science and Risk Regulation in International Law (Cambridge University Press 2010)CrossRefGoogle Scholar.