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Implications of International Investment Law for Tobacco Flavouring Regulation


Tania S. Voon


University of Melbourne - Melbourne Law School

Andrew D. Mitchell


University of Melbourne - Melbourne Law School; NYU School of Law

October 27, 2010

Journal of World Investment & Trade, Vol. 12, No. 1, 2011
U of Melbourne Legal Studies Research Paper No. 538

Abstract:     
Several countries now restrict the use of particular ‘flavours’ in cigarettes and other tobacco products. Various flavours may make cigarettes more attractive to consumers in general (for example by making them easier to smoke) or to particular groups such as children and young people. Domestic regulatory measures restricting tobacco flavouring therefore have a clear health objective. Nevertheless, tobacco companies may threaten to challenge these measures under international investment law, as they have done recently in relation to other tobacco control measures. Understanding the nuances and complexities of bilateral investment treaties (and investment chapters of preferential trade agreements) is therefore crucial for governments in designing flavouring measures and withstanding complaints in the context of foreign investment. Investment obligations do typically incorporate flexibility for governments to implement public health and other public policies, but governments must carefully craft flavouring measures for the relevant health purpose, avoiding unnecessary discrimination against foreign investors or investment. Governments should also take care in making any representations to existing or potential investors about the future of tobacco regulation in their territory. An analysis of flavouring measures under international investment law is vitally important as the Fourth Conference of the Parties to the WHO Framework Convention on Tobacco Control gets underway.

Number of Pages in PDF File: 17

Keywords: Bilateral investment treaty, Public health, Tobacco, WHO, FCTC, International investment law

JEL Classification: K33, F02, F15

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Date posted: November 4, 2010 ; Last revised: April 7, 2011

Suggested Citation

Voon, Tania S. and Mitchell, Andrew D., Implications of International Investment Law for Tobacco Flavouring Regulation (October 27, 2010). Journal of World Investment & Trade, Vol. 12, No. 1, 2011; U of Melbourne Legal Studies Research Paper No. 538. Available at SSRN: http://ssrn.com/abstract=1702785

Contact Information

Tania Voon (Contact Author)
University of Melbourne - Melbourne Law School ( email )
University of Melbourne
Victoria 3010
Australia
Andrew D. Mitchell
University of Melbourne - Melbourne Law School ( email )
The University of Melbourne
Victoria, 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)
HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell
NYU School of Law ( email )
185 West Broadway
New York, NY 10013
United States
+1 212 992 6166 (Phone)
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